High Court dismisses unlawful detention claim where re-arrest circumvents statutory time limits for evidence service.

Neutral Citation Number: [2008] IEHC 21

THE HIGH COURT

[2008 No. 61 S.S.]

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND

BETWEEN

EAMONN DUNNE APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

Judgment of Mr Justice Michael Peart delivered on the 15th day of January 2008

1. The applicant is currently detained by the respondent pursuant to an order of the District Court made on the 12th of January 2008

following his arrest on the 11th January 2008 in the immediate aftermath of an order for his release made on that day by Mr Justice

Edwards pursuant to an application for release on the basis that his previous detention pursuant to an earlier order of the District

Court dated 3rd January 2008.

2. By way of background, the situation is that the applicant was arrested on the 5th November 2007 and subsequently charged,

together with other co-accused persons that they had conspired to commit a crime punishable by law, namely, the theft of cash in

an amount in excess of €900,000. They were brought before the District Court in Kilmainham on the 5th November 2007, and were

subsequently remanded in custody. On the 5th November and on the 8th November the prosecution informed the District Court that

directions were awaited from the Director of Public Prosecutions. The applicant applied for bail in the District Court, which application

was refused. Subsequently an application for bail was made to the High Court on the 21st November 2007 and bail was again refused,

objection arising under the provisions of section 2 of the Bail Act 1997 (as inserted by section 7 of the Criminal Justice Act 2007).

3. On the 22nd November 2007 the matter again came before the District Court at Cloverhill. According to the applicant's affidavit

sworn in order to ground the application which came before Mr Justice Edwards for hearing on the 11th January 2008, the District

Judge formed the view on the 22nd November 2007 that he was refusing the jurisdiction in the matter and the applicant was further

remanded to a sitting of the District Court in Cloverhill on the 20th of December 2007.

4. On the 20th December 2007, the prosecution informed the District Court that directions were still awaited from the DPP, and

sought an extension of time for delivery of the book of evidence. Counsel on behalf of the applicant complained that the time

permitted for service of the book of evidence under section 4(B) of the Criminal Procedure Act 1967, as amended, had expired and

referred to the fact that no directions from the DPP were necessary since the court had already on an earlier occasion indicated that

it was refusing jurisdiction. In such circumstances, counsel for the applicant submitted that the applicant was entitled to have the

book of evidence served forthwith.

5. According to the applicant's said grounding affidavit, the DPP's representative in court on that occasion informed the District Judge

that the file in question was large and complex and that several issues arose including analysis of CCTV footage, telephone analysis

and the consideration of a large body of statements. In the face of the objections to an extension of time, the District Judge in fact

extended time for service of the book of evidence but indicated to the DPP's legal representative that time was running against the

State. The applicant was remanded in custody to the 3rd January 2008.

6. On the 3rd January 2008 the DPP again indicated that more time was required for the preparation of the book of evidence; but,

according to the applicant’s said grounding affidavit, the precise reasons for the continued delay in the service of the book of

evidence were neither identified nor elaborated upon and the DPP’s representative simply asserted that more time was required. It

was again pointed out by counsel for the applicant that no direction from the DPP was necessary since jurisdiction had already been

refused by the District Judge. The court was informed by the DPP’s legal representative that no book of evidence had been prepared

as of that time and that a further extension of time was required in circumstances where the case and its investigation involved the

consideration of up to 300 witness statements together with the other material already referred to.

7. Counsel for the applicant again strenuously objected to any further extension of time, given the passage of time since the date of

arrest to the 3rd January 2008, and submitted that before the District Judge could exercise his discretion to extend the time, there

would have to be evidence of the reasons why the extension of time was required, and not simply assertions advanced by the DPP

since they did not constitute evidence sufficient to have the discretion exercised in favour of extending time pursuant to section 4(B)

aforesaid. The matter appears to have been put to second calling so that evidence could be mustered. In the event, no evidence was

called but following further submissions the District Judge granted a further extension of time and remanded the applicant in custody

for a period of two weeks to the 17th January 2008.

8. The basis of the application for release pursuant to article 40.4.2 of the Constitution, which was heard by Mr Justice Edwards on

the 11th January 2008 was that in the absence of evidence being called, the District Judge had no basis on which to make a decision

as to the exercise of his discretion to extend the time and that, therefore, his decision was irrational, and that the continued

detention of the applicant was not in accordance with the law. Having considered the application, Mr Justice Edwards ordered the

release of the applicant by order dated the 11th of January 2008.

9. According to a further affidavit sworn by the applicant for the purpose of granting the present application for release, the situation

which then occurred following the making of the order by Mr Justice Edwards is that the applicant was released by the removal of

handcuffs in court, but that immediately upon his leaving the precincts of the Four Courts building he was immediately re-arrested and

taken to the Bridewell Garda Station where he was charged again with precisely the same offence for which he had been remanded in

custody by the District Judge to the 17th of January 2008 and he was held in custody and brought before a sitting of the District

Court on the morning of the 12th January 2008. On that occasion, complaint was made to the District Judge that the court had no

jurisdiction as there was already in existence an earlier remand of the applicant on the same matter, and that return has not been

quashed or otherwise interfered with by any order of the High Court made on the 11th January 2008. However the applicant on that

occasion was remanded in custody to the 17th January 2008, being the same date as the remand on the earlier matter.

10. When this application came before me yesterday I made an order that the applicant be produced yesterday afternoon and that

the respondent be immediately made aware of the making of that order so that the lawfulness of the applicant's present detention

pursuant to the order of the District Court made on the 12th of January 2008 could be inquired into pursuant to Article 40.4.2 of the

Constitution.

11. Counsel for the DPP appeared on this return and I permitted oral evidence to be given by Det. Sgt Justin Kelly since it appears

that some of the averments contained in the applicant's affidavit sworn on this present application are in controversy. Much of that

controversy has nothing to do with any issue which I must decide on this application, but Det. Sgt Kelly did state that prior to the

application being determined by Mr Justice Edwards on the 11 January 2008 he had received a direction from the DPP to the effect

that in the event of the applicant's release being ordered by Mr Justice Edwards, the applicant should be re-arrested after he left the

precincts of the Four Courts. That is the only part of the evidence given by Det. Sgt Kelly to which it is necessary to refer.

12. Jeremy Maher S. C. for the applicant has submitted that the action by Gardai in re-arresting the applicant in the immediate

aftermath of the order being made for his release on the 11th January 2008 by Mr Justice Edwards is an abuse of process designed to

frustrate an order of the High Court, and which has the effect of circumventing and setting at nought the applicant's constitutional

right to liberty, so found. He has submitted that it is an abuse of process and impermissible for the applicant to be re-arrested and

charged with precisely the same offence for which he currently already stands charged, and for which he has already been remanded

by the District Court pending the service of a book of evidence, given that the earlier order of remand made in the District Court on

the 3rd January 2008 still stands, not having been quashed, and that the applicant now stands at risk of double jeopardy, since he

now faces two identical charges in respect of the same offence.

13. Sunniva McDonagh BL, for the DPP has submitted that there is nothing unlawful about the applicant re-arrest following the order

for his release on the 11 January 2008, and has relied upon the judgment of Mr Justice Geoghegan in Hegarty v. The Governor of

Limerick Prison [1998] 1 IR 412 where it was held that in the circumstances of that case the immediate re-arrest of that applicant in

the immediate aftermath of his release being ordered was not an abuse of process. In that case the applicant faced charges before

the Special Criminal Court and was remanded in custody. It was only subsequent to that remand in custody that it was discovered

that one member of the Special Criminal Court sitting when the remand was made was no longer a member of the Special Criminal

Court. Following an application for the applicant's release in those circumstances, an order for release was made. Following the making

of that order the applicant was released from prison, but as soon as he left the precincts of the prison he was immediately re-

arrested and brought before a properly constituted Special Criminal Court where he was re-charged with the same charges as

previously. This was found by Mr Justice Geoghegan not to be an abuse of process and that the applicant was in exactly the same

position as he would have been had there been no unlawful remand by an unlawfully constituted Special Criminal Court. His detention

was found to be in accordance with law and the application for his release was refused.

14. Mr Maher submits that the facts of the Hegarty case are completely different to the facts and circumstances of the present

applicant, and that the judgment of Mr Justice Geoghegan cannot be regarded as authority for the lawfulness of this applicant's

present detention.

Conclusion

15. It is no part of the function of this Court on this application to consider again the question of whether the District Judge on the

3rd January 2008 was entitled to exercise his discretion in favour of extending the time for service of the book of evidence on the

applicant and remanding him in custody to the 17th January 2008. Mr Justice Edwards has already decided that the detention of this

applicant on foot of that order was not in accordance with law. In any event, a copy of his judgment is not yet available, since his

decision was given ex tempore on the 11th January 2008, with an indication that his reasons would be given at a later date in a

written judgment. But this Court is simply not concerned with why that order was granted, except in so far as the known facts which

gave rise to that application are relevant to the determination of the issue now arising. There is no doubt in my view that there is

currently in existence an order of the District Court made on the 3rd January 2008 which has remanded the applicant to appear again

before the District Court on the 17th January 2008 on foot of a charge that on the 2nd November 2007 he, together with other

named persons conspired to commit a crime punishable by law, namely the theft of cash. That charge is currently before the District

Court.

16. What has occurred since the 3rd January 2008 is simply that the High Court has determined that it is unlawful that he should be

held in custody until the 17th January 2008 on foot of that order, but the balance of the remand order stands. Since the judgment of

Mr Justice Edwards is not available, this Court is unaware of the precise reasons why he reached his decision that it be detention of

the applicant until the 17th January 2008 was unlawful, but given the basis of the application it is reasonable to presume that he was

satisfied that the learned District Judge ought not have extended time for the book of evidence without having evidence before him

on which to base the exercise of his discretion in the matter. Following the making of that order the applicant was technically

released.

17. What has occurred subsequently has set that order at nought. Det. Sgt Kelly has clearly stated in evidence that prior to the

order for release being granted, a decision had already been taken by the DPP and communicated to him that the applicant should, if

ordered to be released, be re-arrested and brought back before the District Court and charged again with the same offence. There is

no dispute that this is what happened. While I can readily understand and appreciate the desire and anxiety on the part of the

prosecution to achieve the continued detention of the applicant on foot of what is clearly a very serious charge and in respect of

which his arrest on 2nd November 2007 may well have occurred following a very lengthy and careful investigation, the fact is that an

order of the High Court for the applicant's release from unlawful detention was made, and that his re-arrest on the 11th January 2008

in the manner in which it happened has produced a situation in which the purpose of the order of release was frustrated and set at

nought, and in my view, is impermissible.

18. This case can be clearly distinguished from the Hegarty case to which the Court has been referred and upon which the DPP relies.

In that case the remand order made by the Special Criminal Court was invalid by reason of the court not being properly constituted at

the time the order was made. Had the court been properly constituted at the time the order was made, the detention of that

applicant on foot of the order would have been lawful. Therefore his re-arrest, following his release, did not place that applicant in

any worse position then if he had been lawfully remanded in custody in the first place.

19. That is not the situation in the present case in which a properly constituted District Court remanded the applicant in custody to

the 17th January 2008 pending service of a book of evidence, and that detention has been found to be unlawful by the High Court. In

such circumstances the re-arrest must be seen as a device to continue the detention which had been declared unlawful. The

situation which has been achieved means that the applicant is currently before the District Court on two separate but identical

charges.

20. Section 4B of the 1967 Act, as inserted by section 9 of the Criminal Justice Act 1999 provides that subsection (3):

"On application by the prosecutor, the District Court may extend the period within which the document mentioned in

subsection (1) to be served if it is satisfied that--

(a) there is good reason for doing so, and

(b) it would be in the interests of justice to do so."

21. Sub section (5) provides:

"Where it refuses to grant an extension, the District Court shall strike out the proceedings against the accused in

relation to the offence.”

22. Subsection (6) provides:

"The striking out of proceedings under subsection (5) shall not prejudice the institution of any proceedings against the

accused by the prosecutor."

23. On the 3rd January 2008, the District Judge might have refused to further extend the time for service of this book of evidence, in

which case he would have been required to strike out the proceedings against the accused, who would then have been at liberty.

Such an order would not have precluded the applicant being proceeded against afresh. In such circumstances there would at all times

be only one charge in respect of the same offence against the accused.

24. The intention of the section is clearly to restrict the time during which an accused person may be held in custody while the

prosecution prepares and serves the book of evidence. The mischief in the present case can be seen in a situation where on the 17th

January 2008 there are two identical charges against the accused person, the applicant. The prosecution might consider withdrawing

or striking out the earlier charge, and rely only on the second charge, thereby enabling the prosecution to rely once again on the 42

day time-limit for service of the book of evidence as prescribed by s. 4B of the 1967 Act, as amended. That time would have

commenced to run only on the 12th January 2008, and the applicant could be remanded in custody during that 42 day period without

objection, and the District Judge would be called upon to exercise his discretion to extend time only at the further expiration of that

period. If such a situation is permissible the intention of the Act would be easily circumvented, not only in the present case but in any

case in which the prosecution for whatever reason was not in a position to serve the book of evidence. The prosecution in any case

could therefore before the expiration of 42 days from arrest simply re-arrest the accused and charge him again with the same

offence, thereby re-commencing the 42 day period for the book of evidence. That cannot be correct.

25. Since I am of this view, it follows that an order for the applicant’s release must be made, and I so order.