THE SUPREME COURT

191/00

Keane C.J.
Murray J.
Hardiman J.								
Geoghegan J.
Fennelly J.

BETWEEN
              PHILIP CLARKE 			
							APPLICANT/RESPONDENT
AND 
THE MEMBER IN CHARGE OF TERENURE GARDA STATION 
							RESPONDENT/APPELLANT

[Judgments delivered by Keane C.J. and Fennelly J.; Murray J., Hardiman J. and Geoghegan J. agreed with Keane C.J. and Fennelly J.]

JUDGMENT delivered the 1st day of  November , 2001 by Keane C.J.

	The undisputed facts in this case appear to be as follows.  The applicant was arrested at 7.45 a.m. on the 14th April 2000 on suspicion of robbery and conveyed to Terenure Garda Station where he was detained under the provisions of S.4 of the Criminal Justice Act 1984.  (hereto “the 1984 Act”)

	In her affidavit grounding these proceedings, the applicant’s solicitor, Grainne Malone, said that she was contacted in respect of his detention and that it was indicated to the Gardai that she would be visiting the garda station within 30 minutes.  On her arrival at the station, she saw the applicant being taken by car to the District Court at Tallaght, Co. Dublin.

	The applicant had on a previous occasion pleaded not guilty to another offence with which he had been charged, which charge was listed for hearing at the District Court in Tallaght on the same morning i.e., 14th April 2000.  His solicitor attended in the District Court on his behalf that morning and submitted to the District Judge that the applicant’s detention was unlawful.  The District Judge was told that the Garda involved in the prosecution of the case was not in court and was asked to put the matter back to second calling.  That application having been acceded to, the applicant was then detained in a cell in the District Court.  At 1 o’clock he was brought back to Terenure Garda Station where his detention was purportedly extended under the 1984 Act for a further six hours.  He was then brought back to Terenure Garda Station where the case was called again at approximately 3 p.m..  The District Judge said that he did not have any power to inquire into the legality of Mr. Clarkes detention and adjourned the matter to the 3rd May 2000.  The applicant was then brought back to Terenure Garda Station.  
	
	Later that day, an application was made to the High Court (Laffoy J) for an order in accordance with Article 40.4.2º of the Constitution that the respondent produce before the court at 6 o’clock in the afternoon the body of the applicant and certify in writing the grounds of his detention.  The respondent having certified that he was being lawfully detained pursuant to S.4(2) of the Criminal Justice Act 1984, the learned High Court judge, after hearing arguments by counsel, concluded in an ex-tempore judgment that the effect of the removal of the applicant from Terenure Garda Station for the purpose of his attendance in the District Court at Tallaght rendered his detention at 4 p.m. that afternoon  - presumably the time at which the application for a conditional order was made - invalid.  She accordingly ordered the applicant’s release from detention.
	
	From that judgment and order, the respondent has now appealed to this court.  It is conceded on his behalf that, the applicant having been at liberty since the making of the order in the High Court, no issue as to his detention now arises.  It was, however, submitted on his behalf that the court should nonetheless entertain the appeal, having regard to the decision of this court in In Re Swann and Others [1981] IR 395.  It was said that the issue as to whether the respondent was in lawful detention during the relevant periods was of “real concern” to the Director of Public Prosecutions and to all those charged with responsibility for the investigation and prosecution of serious crime.
	
	The facts of In Re Swann were somewhat exceptional.  The applicants were the master and crew of a fishery trawler which was arrested in Donegal Bay within the territorial waters of the State on suspicion of fishing in contravention of the Fisheries (Consolidation) Act 1959.  The master and crew - the applicants in the case - were detained.  The Garda concerned applied to a Peace Commissioner for an order authorising the continued detention of the boat, master and crew for a further period of forty eight hours.  Such an order was purportedly made by a Peace Commissioner.  The following day, an ex-parte application on behalf of the master and crew was made in the High Court for a conditional order of certiorari directed to the Peace Commissioner in relation to the order and a conditional order of habeas corpus in relation to the detention of the master and crew.  The application was made inter alia on the basis that there were defects on the face of the order of the Peace Commissioner.  That submission was accepted by the High Court and absolute orders of certiorari and habeas corpus were then made.  Long before the matter reached this court, the applicants had been released and the trawler, with its master and crew, had left the territorial waters of the State.
	
	The Attorney General (the relevant prosecuting authority in the case of the particular offences) appealed to this court.  Not surprisingly, there was no appearance by, or on behalf of the applicants and this court (O’Higgins C.J., Griffin J and Kenny J.) held that the absolute orders of certiorari and habeas corpus, made without any opportunity having been afforded to the respondents of being heard, could not stand.  As to the jurisdiction of the court to hear the appeal in those extremely unusual circumstances, the learned Chief Justice said 
	“It is clear that the success of this appeal can now have little, if any, practical effect so far as the applicants of the proceedings initiated against them are concerned.  Once habeas corpus issued the applicants left our shores and it is most unlikely that they will ever facilitate the resumption of proceedings against them by returning to the jurisdiction of our courts.  Let me say at once that I do not consider this to be any bar or obstacle to the prosecution of this appeal.  It is true that this court will not entertain questions which are purely hypothetical or academic, and will not hear complaints made by persons who lack a real interest or locus standi in the question raised.  However, this is not such a case.  Here the matter raised on appeal is of real concern to the Attorney General and to those charged with the duty of initiating prosecutions under the Fisheries (Consolidation) Acts.  It is of no significance that the success of this appeal can now have no practical effect.  If this court on appeal is satisfied for any reason that the orders in question ought not to have been made then these orders must be set aside.  If the court declined to do so merely because the orders had been acted upon and practical difficulties were thereby created, it would be declining to exercise its proper appellate jurisdiction.  This view has, I think, been implicit in many previous decisions of this court: see, in particular, the State (Browne) -v- Feran [1967] IR 147 at p.169 and The State (Dillon) -v- Kelly [1970] IR 174.”

	The State (Browne) -v- Feran is, of course, the authority for the proposition that an appeal lies to this court from an order of the High Court granting an order of habeas corpus.  In that case, the prosecutor had been sentenced by the District Court to be imprisoned for six months.  While he was still serving that sentence, the prosecutor obtained conditional orders of habeas corpus and certiorari on the ground that the conviction and order of the District Justice did not show jurisdiction on its face.  The cause shown having been disallowed, the orders were made absolute and the High Court directed the release of the prosecutor from prison.
	
	In the course of his judgment in this court in that case, Walsh J said that
	“It has been submitted that in the event of an appeal against the grant of an order of habeas corpus being allowed there is no order to be made to give effect to it.  I do not accept that submission [Having referred to what was said on the topic by the House of Lords in Cox -v- Hakes [15 App. Cas. 506, the learned judge went on as follows]....
	“The submission is that, inasmuch as Article 40 of the Constitution directs the High Court to order the release of the person detained unless it is satisfied that the detention is lawful, there is an absolute discharge and there is no method by which he may be retaken.  It is undoubtedly true that an order for release must be made and that nothing in the nature of a stay can be put upon it for the purpose of an appeal.  That, however, does not determine the matter.  If this court, on appeal, is satisfied that the detention was lawful it means, first of all, that the order of the High Court is to be set aside.  The question of how the former prisoner may be retaken may depend upon the precise circumstances of each case.  A prisoner who is released from an unlawful detention in which he was held while on remand remains still subject to the further order of the court dealing with his case, and he may be remanded in custody insofar as that is permitted by law.  In the case of a convicted prisoner, a fresh warrant of execution could be issued if it were to be held that the original warrant, which was held in the High Court to be unlawful or insufficient to warrant the detention complained of, is spent by its initial execution.  I do not see why this court, in its exercise of its inherent jurisdiction, in reversing the order of the High Court should not direct a warrant for the apprehension of the former prisoner for the purpose of his recommittal to a place of detention.” [Emphasis added]

	I have to say, with great respect, that I find it difficult to understand how that passage had any application to the facts which were before the court in In Re Swann.  In the latter case, there was no question of the court being in any position to make the form of order contemplated by Walsh J.  The order under attack - that of the Peace Commissioner authorising the detention of the master and crew - had long since expired, unlike the sentence of imprisonment in the State (Browne) -v- Feran where the balance of the sentence remained to be served and, as Walsh J pointed out, a fresh warrant of execution could have been issued.
	
	Similarly, in The State (Dillon) -v- Kelly [1970] IR 174 also referred to by the learned Chief Justice, O’Dhalaigh C.J., speaking for this court, said
		“It has been repeatedly stated in this court that, where a prisoner is lawfully undergoing a sentence of imprisonment but his detention has been temporarily rendered illegal by his being detained in a prison not authorised by law, it is the duty of the court which orders his release from such unlawful detention to ensure that the prisoner is immediately re-arrested and lodged in a lawful place of detention to serve out the unexpired period of his sentence.”

	It is again, with respect, difficult to understand how that would justify this court in entertaining an appeal from the grant of a habeas corpus application where there is no question of a person having to serve out the unexpired period of his sentence.  

	It should, of course, be noted that, since the applicants did not appear and were not represented on the hearing of the appeal in In Re Swann, the court did not have the benefit of any arguments in response to the submission on behalf of the State that an appeal lay.

	More recently, this court dealt with an appeal from a finding by the High Court that the detention of the applicant pursuant to S.30 of the Offences Against the State Act 1939 was unlawful.  At the time the appeal came before this court, the period of detention had long since expired and, accordingly, the same considerations arose as in this case.  In his judgment (with which Hamilton C.J., Barrington J, myself and Murphy J agreed,) O’Flaherty J said
 		“I hold that the applicant’s detention was in accordance with law and that he should not have been released under Article 40 of the Constitution. I would, accordingly, reverse the order made by the learned High Court judge.  It will be clear as occurred in application of Swann, that the result of this appeal will not have any practical effect as far as the relevant investigation was concerned.  As laid down in Swann, while it is true that this court will not entertain questions which are purely hypothetical or academic and will not hear complaints made by persons who lack a real interest or locus standi in the question raised, the matter raised on appeal is of real concern to the State and to those charged with the duty of applying the Offences Against the State Acts.”

	The report in that case gives no indication as to what arguments were advanced to the court.  As a member of the court, my recollection is that the correctness in point of law of the decision in Re Swann was not canvassed in any way.  Nor was any argument advanced on behalf of the applicant in the present case to the effect that Re Swann was wrongly decided.  Since, however, it raises a question of general importance as to the jurisdiction of this court to entertain cases which are beyond argument moot and render purely advisory opinions which will not in any way affect the rights of any persons before this court or the High Court, I would expressly reserve the question as to whether In Re Swann and Lavery -v- Member in Charge, Carrickmacross Garda Station were correctly decided.  I would be further of the view that, if such a situation should arise in the future, the court hearing the appeal, irrespective of any lack of enthusiasm on the part of the respondent to make the point, should decline to hear the appeal without hearing arguments as to whether those authorities were correctly decided.  I fully appreciate, however, that that would be a matter for the court which hears the appeal.

	I turn now to the question raised in the instant appeal.  Section 4 of the 1984 Act provides inter alia that
	“(2)  Where a member of the Garda Siochana arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Siochana station for such period as is authorised by this section, if the member of the Garda Siochana in charge of the station to which he has taken on arrest has at the time of that person’s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence.  
	(3)(a)  The period for which a person so arrested may be detained shall, subject to the provision of this section, not exceed six hours from the time of his arrest.
	(b)  An officer of the Garda Siochana not below the rank of Superintendent may direct that a person detained pursuant to subsection (2) be detained for a further period not exceeding six hours if he has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence”.

	Section 7(2) provides for the making of regulations which include provision for the assignment to the member of a Garda Siochana in charge of a Garda Siochana station or to some other member, of responsibility for overseeing the application of the regulations at that station.

	The submission on behalf of the applicant, which was successful in the High Court, is that these provisions require the applicant to be physically detained in the garda station itself during the period of his detention and that his being absent from the station, even though he remains in the custody of a member of the Gardai attached to the station, for any period of time, means that the detention has come to an end and that his continued detention is, accordingly, unlawful.

	That submission succeeded in the High Court.  I am, however, satisfied that it was not well founded.  While the 1984 Act and the regulations made thereunder seriously abridge a person’s right to liberty and should be strictly construed, that does not mean that they have to be interpreted in the manner proposed on behalf of the applicant.  Neither the 1984 Act nor the regulations provide, either expressly or by implication, that the period of detention authorised thereunder comes to an end where the removal of the person from the Garda station is required for some other legitimate purpose, in this case his attendance at the District Court in Tallaght.  Accordingly, the detention envisaged in S.4(2) continued in this case during the period that the applicant was brought to the District Court in Tallaght in order to comply with the order of the District Court which had adjourned the case until that day. 

	That conclusion is reinforced by subsections (8) and (8A) of S.4 of the 1984 Act which provide that
		“(8)  where it appears to a member of the Garda Siochana that a person arrested in the circumstances mentioned in subsection (2) is in need of medical attention, or where during his detention, it comes to notice that he is in need of such attention, and he is taken for that purpose to a hospital or other suitable place, the time before his arrival at the station or the time during which he is absent from the station, as the case may be, shall be excluded in reckoning a period of detention permitted by this section.
	(8A)  where a person detained pursuant to subsection (2) is taken to a court in connection with an application relating to the lawfulness of his detention, the time during which he is absent from the station for that purpose shall be excluded in reckoning a period of detention permitted by this section”.

	The draughtsman of these subsections has clearly proceeded on the assumption that, where a person is absent from the garda station for the purposes mentioned in either subsection, he continues to be lawfully detained pursuant to S.(2).  Otherwise, the provision that the time during which he is absent from the station is to be excluded in reckoning the period of detention would be superfluous.  If the submission advanced on behalf of the applicant was well founded, the draughtsman would have expressly provided that the detention authorised by subsection (2) should be regarded as continuing during his absence from the station for either of the purposes mentioned, but should be excluded in reckoning the period of detention permitted by the section.  It follows inevitably that, in a case such as the present, the detention should be regarded as continuing while the applicant is necessarily absent from the garda station, but should not be excluded in reckoning the period of detention permitted by the section.
	
	That conclusion is also supported by a passage in the judgment of the Court of Criminal Appeal in The People -v- Farrell [1978] IR 13.  In that case, a person had been detained under S.30(3) of the Offences Against the State Act 1939 which provides that
		“Whenever a person is arrested under this section, he may be removed to and detained in custody in a Garda Siochana station, a prison, or some other convenient place  for a period of twenty four hours from the time of his arrest and may, if an officer of the  Garda Siochana not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty four hours.”
									[Emphasis added]

	In that case, the evidence was that the applicant, who had been arrested under the provisions of that section and taken to the garda station at Ballyshannon where he was detained, had agreed to travel in a Garda patrol car with Garda officers for the purpose of pointing out various places which he had mentioned to them.  He was accordingly absent from the garda station from 
2 o’clock in the afternoon until 4 o’clock on the same afternoon.  It was submitted on his behalf that, on those facts, there was an unauthorised detention of the applicant in the Garda car during that time and that this brought to an end his period of lawful detention.  Delivering the judgment of the court, O’Higgins C.J., said
		“In the court’s view the detention authorised by the section is detention in a place recognised under the section for the full period of twenty four hours.  This means continual detention in that place.  However, detention in that place is not ended if, for some understandable reason a temporary absence of the detainee in the care and custody of the Gardai becomes necessary.  This is not a removing to detain in another place. It is a continuation of the same detention.  However, in the court’s view it would not be proper to regard a vehicle as a convenient place.  The application of the ejusdem generis rule of construction would indicate that the general term ‘other convenient place’ ought to be construed in the same sense as the specifics - a garda station or a prison - and at least must mean a convenient building of some kind.  In this case the detention continued to be in the garda station and this involved and encompassed the agreed journey in the garda car and the return.  In the court’s view, there was no ending of the detention as a result of the car journey.”

	To the same effect are the observations of Henchy J in this court in The State (Walsh) -v- Maguire [1979] IR 373 at p.386 as follows
		“The [trial judge] considered that the accused’s detention under the section (which requires it to be ‘in a garda station, a prison, or some other convenient place’) ended when the two guards conveyed him in a motor car so that he could point out to them the house he had mentioned in his statement.  The judge thought that this did not come within the category of ‘some other convenient place’, but his attention was not directed to the decision in the Court of Criminal Appeal in The People -v- Farrell in which it was held that an absence of this kind from a Garda station for the purpose of pointing out certain places was not incompatible with the detention allowed by S.30 of the Act of 1939.  Even if the present case could be distinguished from that decision, the accused’s absence was but a temporary deviation from the statutory custody (and a deviation to which the accused consented) and when he was brought back to the garda station the correct statutory detention was resumed.”

	As subsequently pointed out in The People (DPP) -v- Kelly No. 2, [1983] 1 IR 1, the situation might be otherwise if it could be shown that the removal of a person detained under those provisions from one garda station to another was mala fide  and was done for the purpose either of harassment or of  isolating him from assistance or access to which he would properly be entitled.  That does not arise in the present case. 

	The wording of the relevant provisions of the Offences Against the State Act 1939 under consideration in those cases differs in only one significant respect from that now under consideration, i.e., the power to remove the person arrested “to some other convenient place”.  However, it is clear from the passages which I have cited that in both cases the temporary absence of the detainee in the care and custody of the Gardai, even where he was not in what could be described as a “convenient place”, did not, in the particular circumstances, bring the detention to an end. 
	
	I would allow the appeal and substitute for the order of the High Court an order allowing the cause shown and discharging the conditional order of Habeas Corpus.

THE SUPREME COURT
	191/00
Keane C.J.
Murray J.
Hardiman J
Geoghegan J.
Fennelly J

BETWEEN

PHILIP CLARKE
								APPLICANT/RESPONDENT
AND
THE MEMBER IS CHARGE OF TERENURE GARDA STATION
								RESPONDENT/APPELLANT

JUDGMENT of FENNELLY J. delivered the 1st day of November, 2001.

	I fully agree with the judgment which has been given by the Chief Justice, both as to the lawfulness of the detention of the Applicant and as to the fact that the appeal should be allowed. I write very briefly only on the question of the mootness of the point decided. Clearly any consideration of this issue is, in the context of the present appeal obiter. As the Chief Justice points out the correctness of the decision of this Court in Re Zwann [1981] IR 395 was not argued. It would not be appropriate to deliver a dissenting judgment.
	It seems at least possible that the judgment in Zwann is susceptible to misunderstanding.  The Chief Justice is undoubtedly correct when he says that the passage quoted by him from page 169 of the judgment of Walsh J in State (Browne) v Feran [1967] IR 147 had no application to the facts which were before the court in Zwann.  That passage deals with the power of the Court to ensure the recommittal to detention of a person who has been erroneously released.  No such question arose in Zwann.  It is not clear, however, that O’Higgins C.J., at page 401 of his judgment had that passage in mind, though it certainly commences on page 169, which is the page citation given in the judgment. It seems to me that O’Higgins C.J. may have been referring to an earlier passage in the judgment of Walsh J, where the latter learned judge had treated at length the proper appellate jurisdiction of the Supreme Court, the actual point to which the judgment in Zwann.  was directed.
	Whether the passage in Zwann is liable to misinterpretation - and admittedly the citation is ambiguous - the point of substance remains.  I agree that it merits considered treatment on another occasion. On that future occasion, it may be opportune to have regard to the case of Condon v Minister for Labour [1981] IR 62.