High Court of Ireland Decisions

1. In these Judicial Review proceedings the Applicant seeks an Order of Prohibition preventing the Judges of the Special Criminal Court from further dealing with or attempting to put on trial the Applicant in a prosecution entitled "The People at the suit of the Director of Public Prosecutions -v- Hugh Smith McMahon" together with an Order of Prohibition prohibiting the Director of Public Prosecutions from further proceeding with the said prosecution. He also seeks Orders of Certiorari quashing the arrest warrant issued by the Judges of the Special Criminal Court on the 11th February, 1997 in respect of the Applicant, quashing the direction of the Director of Public Prosecutions that the Applicant be brought before the Special Criminal Court and also quashing all Orders of the Judges of the Special Criminal Court remanding the Applicant in custody and on bail. Leave to issue the Judicial Review proceedings was granted to the Applicant by this Court (Flood J.) on the 31st July, 1997; the Applicant's originating Notice of Motion was returnable on the 13th October, 1997. A Statement of Opposition was filed by the second named Respondent (the Director of Public Prosecutions) on the 15th December, 1997 and the matter came on for hearing before this Court on the 10th June, 1998.

2. The grounds on which the Applicant seeks Judicial Review, as set out in his originating statement, arise from the ex parte application for a warrant for his arrest made to the Special Criminal Court on the 11th February, 1997. The Applicant claims that this warrant was issued on the basis of incorrect evidence given to the Court by Detective Inspector (now Detective Superintendent) Peter Maguire and that as a result the warrant is bad, the prosecution of the Applicant is fundamentally flawed, the first named Respondent has no jurisdiction to deal with the proceedings, and the proceedings are in breach of the Applicant's right to a fair trial under the Constitution. All these claims are strenuously opposed by the Director of Public Prosecutions in his Statement of Opposition.

3. The factual background to the Applicant's arrest and charge is to some extent set out in his own Affidavits. Further details are included in the Affidavits of Detective Inspector Peter Maguire and other members of the Garda Siochana and a fuller picture of some aspects emerges from the Book of Evidence which was served on the Applicant on the 8th March, 1997 and which he exhibits with his grounding Affidavit. The basic facts are largely agreed, or at any rate unchallenged, by the parties.

4. At about 7.55 p.m. on the 22nd March, 1995 a telephone call from an anonymous male using the code name SPEAR was received at the Northern Constabulary Headquarters, Perth Road, Inverness, Scotland, warning that an explosive device had been placed at Kessock Bridge on the A9 main road, Inverness, and was timed to go off at 9 p.m. that night. As was the normal practice of the Northern Constabulary, the telephone call was tape recorded. The code word SPEAR was known to be used by an organisation known as the Scottish National Liberation Army. As a result the Kessock Bridge was closed for some two hours with major disruption of traffic. A search of the bridge revealed no explosive device. The Northern Constabulary preserved the tape recording of the telephone call and carried out their own investigations.

5. The Applicant in the present proceedings is a native of Scotland, normally resident in Glasgow. He came to Ireland in or about 24th January, 1995 and has resided here since in the general area of Gardiner Street in Dublin. He is unemployed. He appears to have some acquaintance or association with another Scot, Adam Stuart Busby, who resides close to the Applicant in Dublin. Mr. Busby apparently makes no secret of the fact that he is involved in the Scottish National Liberation Army.

6. During the early months of 1995 the Applicant and Mr. Busby were being kept under observation by the Gardai, who apparently were investigating matters connected with the Scottish National Liberation Army. On 22nd March, 1995 Detective Garda Brendan Moffat and Detective Garda Frank O'Sullivan observed the Applicant and Mr. Busby entering a public telephone kiosk at Summerhill Parade, Dublin, at 7.53 p.m. Mr. Busby dialled a number and the Applicant spoke into the telephone. The call ended at approximately 7.57 p.m. The two men remained in the telephone kiosk for several minutes and then left.

7. Presumably as a result of their own investigations, the Scottish police informed the Garda Siochana about the details of the bomb warning call which had taken place on the 22nd March, 1995, and on 19th May, 1995 Detective Inspector Peter Maguire went to Pitt Street Police Station, Glasgow, where he listened to a tape of the telephone call and requested a copy of it. The copy tape was delivered to Detective Inspector Maguire in Dublin on the 6th June, 1995.

8. Meanwhile on 3rd June, 1995 the Applicant was arrested under Section 30 of the Offences Against the State Act, 1939 and held for questioning in Fitzgibbon Street Garda Station. He was interviewed by a number of Gardai and was questioned about his own and Mr. Busby's connections with the Scottish National Liberation Army. He was also questioned about the telephone call made to Inverness on the 22nd March, 1995. He admitted that he was acquainted with Mr. Busby, but at all times denied that he himself had any connection with the SNLA or with the telephone call made to the police at Inverness. He was released without charge.

9. When the relevant members of the Garda Siochana listened to the tape which Detective Inspector Maguire had obtained from the Scottish Police, they apparently formed the view that the voice on the tape was that of the Applicant. However, no further action was taken until 20th May, 1996 when Detective Inspector Maguire gave the tape to Detective Sergeant Nicholas McGrath and directed him to meet the Applicant on an informal occasion and play the tape to him. On 12th June, 1996 the Applicant was in the public gallery of the Special Criminal Court in Green Street. Detective Sergeant McGrath asked him to come outside for a few minutes, which he did. The Applicant was cautioned in the normal way. Detective Sergeant McGrath, who was accompanied by a number of other Gardai, played the tape recording to the Applicant on the steps of Green Street Courthouse. The Gardai in their Affidavits aver that he admitted that the voice on the tape recording was his, invited them to charge him, and then went back into the Courthouse. The Garda account of this incident is not substantially challenged by the Applicant in his Affidavits, although he does not admit to the words alleged to have been used by him on that occasion.

10. On the 11th February, 1997, some eight months later, an ex parte application was made to the Special Criminal Court by Mr. Patrick Geraghty of the Chief State Solicitor's Office on behalf of the Director of Public Prosecutions for a warrant to arrest the Applicant on a charge that on 22nd March, 1995 within the State he did send by means of a telecommunication system operated by Bord Telecom Eireann a message which was of a menacing character, contrary to Section 13(1) of the Post Office (Amendment) Act, 1951, as inserted by Section 8 of the Fourth Schedule to the Postal and Telecommunication Services Act, 1983. This being a non-scheduled offence, a certificate from the Director of Public Prosecutions pursuant to Section 47(2) of the Offences Against the State Act, 1939 was handed in to the Court certifying that in the opinion of the DPP the ordinary Courts were inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of the Applicant. Mr. Geraghty stated that he was applying for a Form 6 warrant under the terms of Rule 17 of the Special Criminal Court Rules (S.I. 234 of 1975). Detective Inspector Peter Maguire gave evidence of the telephone call to the Scottish Police and of the subsequent investigations. During the course of his evidence (as reproduced in the transcript of the hearing) Detective Inspector Maguire said that the Applicant had been arrested by the Garda Siochana under Section 30 of the Offences Against the State Act in pursuance of another investigation. He went on to say:-

11. It appears that no mention was made of the scene outside the Special Criminal Court in Green Street.

12. The warrant was issued by the Court and the Applicant was arrested and brought before the Court on the 14th February, 1997 and charged. He was remanded in custody until 5th March, 1997. On that date bail terms were fixed and the Applicant was released on bail. He remains on bail and the proceedings before the Special Criminal Court have been stayed pending the outcome of these proceedings. On the 8th March, 1997 he was served with a Book of Evidence. On the 6th May, 1997 the Special Criminal Court ordered that the Applicant be furnished with a transcript of the ex parte application for a warrant. This was delivered to him on the 28th May, 1997 and in June 1997 he was given audio tapes of his interviews in Fitzgibbon Street Garda Station.

13. In his Affidavits Detective Inspector Maguire at first suggested that the transcript might have been incomplete as his memory was that he had in fact mentioned in evidence that the tape was played to the Applicant outside the Special Criminal Court. However, in a later Affidavit, on the evidence of the re-checked transcript, Detective Inspector Maguire avers that it was highly improbable that he would have made an error as to the location where the Applicant's admission was made. However, he could not state with certainty that such an error could not have been made by him. If so, it would have been a slip of the tongue and certainly did not constitute an attempt on his part to mislead the Judges of the Special Criminal Court in any way.

14. The submissions of Counsel for the Applicant fell under two main headings. Firstly, he submitted that the whole episode at the Special Criminal Court on the 12th June, 1996, when the tape recording was played to the Applicant, was highly irregular and that any admission obtained from the Applicant under these circumstances would not be properly admissible as evidence against him in any trial. He had not been arrested and brought for questioning to a Garda Station and no formal statement had been taken from him. The fact that he was cautioned prior to the playing of the tape did not save the situation from its irregularity; it was quite improper for the Gardai to behave in this fashion. Had evidence of this episode been properly given before the Special Criminal Court as being the main evidence on which the prosecution proposed to rely, it was unlikely that the warrant would have been issued.

15. Counsel for the Applicant secondly submitted that the issue of the warrant was based on untrue evidence given by Detective Inspector Maguire on the 11th February, 1997. The Special Criminal Court was misled into granting the warrant on a basis that was false. He argued that it was an essential part of fair and constitutional proceedings that a warrant for the arrest of any person could only be obtained on true grounds. Since a warrant to arrest gave power to interfere with the personal liberty of a person, such power could only be invoked and operated on a basis of truth. All the procedures which had taken place before the Special Criminal Court to date had been fundamentally flawed and bad as the original basis for those proceedings, namely, the application for and grant of the warrant, were bad and made on a false basis. He referred to the need for strict compliance with the statutory rules and procedures of the Special Criminal Court and relied on the case of McElhinney -v- The Special Criminal Court [1990] 1 IR 405. He also referred to the case of DPP -v- Kenny [1990] 2 IR 110 in regard to the need for the Court to be satisfied on proper evidence before issuing a warrant.

16. Counsel for the Director of Public Prosecutions submitted that the real issue before the Court was whether or not the Applicant was "lawfully brought before the Court" within the meaning of Section 43 of the Offences Against the State Act, 1939 and, more particularly, whether the warrant issued for the arrest of the Applicant was properly and lawfully issued. He referred to what he described as the substantial evidence which existed against the Applicant quite apart from the admission he had made outside Green Street Courthouse in regard to the tape recording. He submitted that there was no legal necessity to arrest a suspect and hold him in detention in a Garda Station in order to interview him, nor that all statements required to be formal statements taken while in custody. He stated that the uncontroverted fact remained that the admission in question was a cautioned admission and the fact that it took place otherwise than while the Applicant was in detention arguably added to its probative value rather than detracting therefrom. The circumstances in which the Applicant could seek to challenge the admissibility of the evidence of admission following the caution being administered were more restricted because the Applicant was a free agent who had voluntarily come out of the public gallery of the Courthouse in question and had voluntarily attended at the playing of the tape. It was apparent that even if this Court were to hold that Detective Inspector Maguire as a matter of probability had inaccurately recited the location of the admission, the Special Criminal Court could in no way be said to have been misled as to the salient facts of the case.

17. Counsel for the DPP then dealt with the jurisdiction of the Special Criminal Court under Sections 43 and 47 of the Offences Against the State Act, 1939. He pointed out that in McElhinney's case the Supreme Court had held that once a person appeared before the Court because he had been arrested on foot of a warrant issued by the Court, he was a person "brought before a special Court" within the meaning of Section 47 subsection (3) of the Act of 1939. He could then be charged not only with the offence for which the warrant had been issued but also with other offences provided that the Director of Public Prosecutions had issued the relevant certificate under Section 47(2). He argued that there was no reference to evidence being needed to found the issue of a warrant in Section 47 of the Act of 1939. No claim was made by the Applicant that there was any inadequacy in the direction of the Director of Public Prosecutions or in the certificate of the Director of Public Prosecutions certifying that the ordinary Courts were not appropriate for the trial of the charge in question. Neither was any claim made that the form of the warrant was in appropriate or insufficient. The fundamentals of the jurisdiction of the Special Criminal Court depended on the direction of the DPP pursuant to Section 47(1), the certification of the DPP pursuant to Section 47(2) and the request for a warrant to comply with the mandatory provisions of Section 47(1). Once those fundamental jurisdictional facts were established in evidence, the Court was entitled to issue the warrant and the Applicant was lawfully brought before the Court. In accordance with settled law on Judicial Review, which is concerned with the decision-making process rather than with whether the decision reached was the correct decision, Counsel for the DPP submitted that the only basis upon which the warrant in the instant case could be quashed would be if this Court were to determine that there was no basis whatever upon which the Special Criminal Court could have come to the decision to issue the warrant. The fact that it was possible that the Judges of the Special Criminal Court were inadvertently misinformed as to the whereabouts of the Applicant when he acknowledged his voice on the tape recording could not in any way affect the jurisdiction of the Court to have issued the warrant in the first place.

18. The first issue raised by the Applicant is the alleged irregularity or illegality of the procedure adopted by the Gardai in playing the tape recording to the Applicant outside Green Street Courthouse on the 12th June, 1996. It seems to me that the suggestion made by Counsel for the Applicant both in his oral and in his written submissions that a person must be under arrest and in detention in a Garda Station before being questioned or interviewed in regard to an offence is ill-founded. Under the common law, in fact, a person could not be arrested and held for questioning; if arrested he should be charged and brought before a Court. The power to arrest and to hold for questioning without charge is based on statute - e.g. the provisions of Section 30 of the Offences Against the State Act, 1939, of Section 4 of the Criminal Justice Act, 1984, and of some of the statutes relating to drug offences. All these statutory powers are strictly controlled both by the statutes themselves and by statutory rules as to the length of time an arrested person may be held in custody, the grounds of such an arrest, the conditions under which the arrested person is held and other safeguards. While, in recent years, the use of these statutory powers of detention has become more and more frequent, it should never be forgotten that the voluntary interview is in fact the norm under the common law, and that a very large part of the detection work of the Gardai must and should depend on voluntary interviews and on information gained from statements made during such interviews. Persons making statements to the Gardai in the course of such interviews should, of course, be cautioned as is laid down in the Judges' Rules. In the instant case the Applicant voluntarily left the Courthouse and voluntarily listened to the tape recording. He was under no obligation to make any admission. There is no suggestion that he was threatened or offered any inducement. The method adopted by the Gardai may have been somewhat unusual in these times when there is perhaps an over-reliance on statutory powers of detention and questioning, but it does not appear to me to have any taint of illegality. Nor does it in any way affect the validity of the warrant issued by the Special Criminal Court. If the Applicant wishes to challenge the admissibility of the evidence of his alleged admission to the Gardai, the time for such a challenge is during his trial.

19. I now turn to the Applicant's claim that the warrant issued by the Special Criminal Court is bad and the prosecution fundamentally flawed on account of the inaccurate evidence given by Detective Inspector Maguire on the occasion of the ex parte application for the warrant.

20. As has on previous occasions been pointed out both in this Court and in the Supreme Court, the jurisdiction of the Special Criminal Court is purely statutory; the powers and procedures of the Court are governed by statute and by statutory rules. Counsel for the Applicant is of course correct in submitting that, as was stated by the learned Walsh J. in his judgment in the Supreme Court in McElhinney -v- Special Criminal Court (at page 420) that:-

21. The Special Criminal Court Rules, 1975 (S.I. No. 234 of 1975) at Rule 17 provides as follows:-

22. It was under this statutory procedure that the warrant for the arrest of the Applicant was issued and that he was arrested and brought before the Court. The Applicant does not in any way challenge the technical aspects of the application for the warrant; the Director properly issued his certificate pursuant to Section 47(2) and the certificate was duly handed into the Court on his behalf. There is no challenge to the form of the warrant which accurately follows form 6 of the 1975 rules. It is perhaps significant that no mention need be made of the laying of information or the giving of evidence in the recitals on the face of the warrant. The Applicant, however, claims that the warrant and all procedures stemming from it are fundamentally flawed on account of the inaccurate evidence given by Detective Inspector Maguire. He claims that he cannot have a fair trial in accordance with law as guaranteed by Article 38 of the Constitution.

23. It is, of course, true, as submitted by Counsel for the Applicant, that a warrant to arrest gives power to interfere with the personal liberty of a person, but it seems doubtful that one can go so far as to state, as he does, that such a power can only be invoked or operated on a basis of truth, or that the arrest of any person can only be lawfully obtained on true grounds. The truth or otherwise of the grounds of the arrest and of the evidence of the Garda and other witnesses eventually fall to be tested at the trial of the arrested person. What is required at the stage of the application for a warrant is that the prosecution has a bona fide belief based on information that the person to be arrested is guilty as charged. The sufficiency of the information and the bona fides of the witnesses will, of course, have been considered by the DPP before the ex parte application under Section 47 is made.

24. Counsel for the Applicant in this connection referred to the case of DPP -v- Kenny [1990] 2 IR 110. In that case it was held by the Court of Criminal Appeal that a search warrant was invalid because there was no evidence that the Peace Commissioner who issued the warrant had made any enquiry as to the basis of the Garda's suspicion. Accordingly, he had failed to exercise his judicial discretion and had failed to carry out his function under the Act. Accordingly, it was claimed in that case that the entry to the appellant's home on foot of the invalid search warrant was a deliberate and conscious violation of the constitutional rights of a citizen and that evidence obtained as a result of such violation was inadmissible. The Supreme Court held that evidence obtained as a result of a deliberate and conscious violation of constitutional rights of a citizen must be excluded unless the Court in its discretion was satisfied that there were extraordinary excusing circumstances which justified the admission of the evidence or that the act constituting the breach of constitutional rights was committed unintentionally or accidentally.

25. In considering the decision of the Court of Criminal Appeal in regard to the warrant in Kenny's case, it must be borne in mind that in that case also the Court was dealing with a statutory jurisdiction - that of the Misuse of Drugs Act, 1977. Section 26 of that Act, as amended by Section 13 of the Misuse of Drugs Act, 1984, provides inter alia:-

26. It is from this statutory provision that the requirement that the Peace Commissioner be "satisfied" derives, and the actual warrant states inter alia "whereas I, the undersigned Peace Commissioner, being satisfied on the information on oath of Garda ..... ".

27. This is an entirely different situation from that in the instant case where the jurisdiction to issue the warrant is that provided under Section 47 of the Act of 1939.

28. I have carefully considered both the transcript of the ex parte application for the issue of the warrant and the Affidavits of Detective Inspector Peter Maguire. No notice to cross-examine Detective Inspector Maguire on his Affidavits was served by the Applicant and no evidence has been offered to substantiate any allegation that he deliberately and maliciously misled the Special Criminal Court. I accept on the evidence of the transcript that he did not fully or accurately describe the location of the Applicant's alleged admission. I also accept that this was due to inadvertence and not to any deliberate or conscious effort to interfere with the Applicant's right to a fair trial. Leaving aside the evidence of the admission, the Judges of the Special Criminal Court had before them a number of substantial pieces of evidence on which it was open to them to issue the warrant. In these circumstances I consider that it would be improper for this Court to interfere by way of Judicial Review with the operation of the jurisdiction of the Special Criminal Court.

29. I will therefore refuse the various reliefs sought by the Applicant.