High Court dismisses judicial review challenging criminal charges as not brought forthwith due to 3.75h delay.

Neutral Citation Number: [2009] IEHC 549

THE HIGH COURT

JUDICIAL REVIEW

2009 112 JR

BETWEEN

KEN BROE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND

THE JUDGE OF THE NORTHERN CIRCUIT AND

JUDGE KEVIN KILRANE

RESPONDENTS

JUDGMENT of Mr. Justice Ryan delivered on the 4th day of December, 2009

Introduction

1. This is an application for judicial review seeking orders of prohibition and certiorari and declarations in respect of

criminal proceedings against the applicant, who has been returned for trial to Letterkenny Circuit Criminal Court on

charges under the Non-Fatal Offences against the Person Act, 1997, and the Misuse of Drugs Act, 1977. The events

giving rise to the charges took place on the 9th October, 2008 at Letterkenny. The accused was charged with the

offences on the 12th October, and 15th October, 2008. Leave was applied for and granted on the 2nd February, 2009.

2. Section 10(2) of the Criminal Justice Act 1984, provides that a person who has been released from detention under s. 4

of that Act can only be re-arrested by order of the District Court or for the purpose of charging him forthwith.

3. The applicant in this case was re-arrested following a period of such detention and charged with offences. He was

brought to court and is now facing trial by judge and jury. The trial has been stopped awaiting the outcome of this

application in which he is challenging the validity of the charges and the subsequent court process.

4. There was a delay of 3 hours and 45 minutes between the time when the applicant was arrested and when he was

charged. During this period the Gardaí were trying to arrange a for a special sitting at the District Court to which they

could bring the applicant and they needed to know the venue of the court in order to complete the charge sheet. The

applicant’s case is simply that the hold-up means that the charge did not happen forthwith, as the subsection provided.

In consequence, he argues, the charges and all the proceedings that followed including the return for trial were invalid

and void.

5. Paragraph 11 of the grounding affidavit sworn by the applicant’s solicitor says:-

“I am advised and believed that the applicant herein was being detained unlawfully at the time when he was

charged with the offences, the subject matter of the proceedings herein. I am further advised and believe that

accordingly the applicant has been unlawfully before the courts at all times during the prosecution herein. I say and

believe that the second named respondent has no jurisdiction to hear the trial of the applicant herein or to in

anyway deal further with the prosecution of the applicant herein and I say and believe that the first named

respondent has no power to deal further with the prosecution of the applicant herein on the charges currently

before the courts.”

6. Paragraph E (5) of the Statement of Grounds says:-

“Following his release from detention pursuant to s. 4 of the 1984 Act, the applicant was re-arrested and thereafter

detained. This arrest and/or detention was contrary to law where he was not immediately charged with any criminal

offence or otherwise detained on any lawful basis. His subsequent charging with the offence is the subject matter

of the proceedings herein and the criminal proceedings arising therefrom are null and void and of no legal effect

where his detention prior to being charged was unlawful.”

7. There is no challenge to the facts as deposed by the Gardaí. It is accepted or not disputed that there was no mala

fides on the part of the Gardaí and that there was no actual difference between what happened to the applicant and

what would have occurred if the procedure contended for had been followed, except for the timing of the charge. Another

matter that is not in dispute is the reason put forward by the Gardaí for not charging the accused earlier than 12.33 pm

on Sunday 12th October, 2008. The Gardaí depose in their affidavits that they had instructions from the DPP to charge

the applicant and were in the process of doing so. They had to state in the charge sheet the court at which he was to

appear; in order to ascertain the court they made inquiries with the Courts Service and acted as soon as they knew the

position.

The Facts

8. On Thursday 9th October, 2008 the applicant was arrested and detained at Monaghan Garda Station under s. 4 of the

Criminal Justice Act 1984, in connection with an assault that caused serious injuries to a young man in Letterkenny.

Shortly before he was due to be released, the DPP gave instructions that he was to be charged with a number of

offences. When the applicant was released by the Gardaí at 8.48 am on Sunday 12th October, 2008, he was immediately

re-arrested for the purpose of charging him, but he was not charged until 12.33 pm, some 3¾ hours later.

9. The chronology of Sunday 12th October, 2008 is as follows.

8.11 am – DPP directed that the applicant be charged with certain offences.

8.48 am --applicant released from s. 4 custody and rearrested by Det. Sgt. Michael Carroll “for the purpose of charging

him with assaulting Kristian Shortt at Upper Main Street, Letterkenny on the 9th October 2009, contrary to s. 3 of the

Non-Fatal Offences Against the Person Act 1997. “I also had directions that Mr. Broe was to be charged pursuant to s. 15

and s. 3 of the Misuse of Drugs Act 1977. It was my intention that Sgt Kelly of Monaghan Garda station preferred these

charges upon him” – para. 3 of affidavit of Det. Sgt. Michael Carroll.

8.52 am --Det. Sgt. Carroll “spoke with Sgt. Kelly and requested that he make contact with the District Court Clerk so as

to find out what court to prepare the charges for. Sergeant Kelly informed me a short time later that he was having

difficulty getting through the out of hours number for the court clerks. Sergeant Stephen Kelly deposed that he was

informed by Sgt. Carroll that Kenneth Broe had been released from detention pursuant to the provisions of s. 4 of the

Criminal Justice Act 1984 and that he had re-arrested him for the purpose of charging at 8.48 am on the direction of the

Office of the Director of Public Prosecutions. Sergeant Carroll requested that “I contact the District Court Clerk and

arrange a special court because it was a Sunday and no court was scheduled for that day.”

10.00 am –“At some time shortly after 10.00 am Sgt. Kelly informed me that he had got in contact with the court clerk

and that he was waiting for her to get back to him in relation to a court venue for a special sitting that day. I had the

charge sheet almost prepared, I just needed the court detail but I could not complete this task until I had same.

10.14 am --Sergeant Kelly managed to get through to the Courts Services and “I advised the duty Court Clerk that I had

a suspect in custody who had been arrested for the purpose of charging in relation to a serious assault and possession of

controlled drug. I requested that she arrange a special sitting of the District Court. The details of the court sitting was

also information I needed in order to enter charges on the PULSE system.

12.07 pm – I contacted the District Court Clerk again as I had not received a reply and was advised that I should bring

the suspect to the sitting at Ballyconnell District Court on the following day at 10.30 am. Kenneth Broe was informed by

myself that I was in contact with the District Court attempting to arrange a special sitting.”

12.30 pm – Shortly before 12.30 pm that Sunday 12th October, 2008, Sgt. Kelly informed Detective Sergeant Carroll that

the Court Clerk had got back to him and the instruction was that they were to charge Mr. Broe to the Ballyconnell District

Court sitting the next morning, Monday 13th October, 2008, at 10.30 am at Ballyconnell courthouse. “I inserted these

details on the charge sheet that I was preparing for Mr. Broe and I brought the charge sheet to the cell area where he

was charged as set out on charge sheet 809835”.

12.33 pm – applicant was charged.

10. Detective Garda Colm McDonagh deposed that during the applicant’s time in the cell in Monaghan Garda station, Sgt.

Kelly was in contact with the District Court Clerk and that on two occasions while he was visiting Mr. Broe, Sgt. Kelly

accompanied him in order to inform Mr. Broe that efforts were being made to arrange a special court sitting for that day.

11. Ms. Margaret Connolly is the District Court Clerk and she says that she was the Court Clerk on duty for out of hours

calls for Monaghan District Court on Sunday 12th October, 2008. “I do not have a clear recollection of the particular

morning of the 12th October, 2008, and therefore cannot say with certainty what interactions took place by phone

between myself and other parties. However I believe that the normal protocol, namely that we follow up a request from

An Garda Síochána for a special court as soon as practical was adhered to on this occasion.” This is not very informative

but it does not in any way contradict what the Gardaí are saying.

12. Relevant dates are as follows.

Thursday 9th October, 2008, - 11.45 pm- applicant arrested and brought to Monaghan Garda station,

Friday 10th October, 2008 - 12.15 am – applicant was detained under s. 4 of the Criminal Justice Act 1984,

Sunday 12th October, 2008 -- set out above.

Monday 13th October, 2008 -- applicant was brought before Ballyconnell District Court on foot of these charges

and was remanded in custody.

Wednesday 15th October, 2008 -- applicant was charged with a further offence.

15th January, 2009 -- applicant was sent forward for trial to Letterkenny Circuit Court on the 3rd February, 2009.

2nd February, 2009 -- (nearly four months after the events complained of) these proceedings were instituted

when leave was granted pursuant to an ex parte application.

13. Some reference to procedure is necessary. Charging a person with a criminal offence begins a transition from

investigation to prosecution, which ends when the Gardaí hand over the accused person to a court. They can of course

continue to pursue inquiries but they do so without the involvement of the accused. When a person has been charged he

must be brought before the District Court as soon as practicable.

14. The process of charging a person consists of putting to the suspect the crime he is accused of having committed.

This means reading out to him what is on the charge sheet. That is a document in a standard form prescribed by rules of

court. When the suspect has been charged, he must be given a copy of the charge sheet. It follows that the charge

sheet has to be prepared before the person can be charged. It would be possible to do otherwise by charging ore tenus

and then making the document but that is fraught with possibilities of error and confusion and the process would still be

held up while the sheet was produced.

15. One of the pieces of information on the charge sheet is the court venue, identified by area and district. When the

Gardaí know the court to which the accused will be brought they fill in that part of the form. This normally causes no

difficulty because the rules provide for jurisdiction and it often happens that there is a choice of court venues to deal

with the case. But the venue is not known in advance when a special court is to be convened to sit out of hours.

16. It is not clear to me that an error or omission of the court venue in a charge sheet is a fatal flaw but I think it could

give rise to uncertainty at least and a judge might be concerned about his or her capacity to deal with the matter in the

particular court. A Garda Sergeant would obviously be worried that a mistake in this document would have serious

consequences.

17. Order 17.1(1) of the District Court Rules 1997, provides, so far as relevant, as follows:-

• “Whenever a person is arrested and brought to a Garda Síochána station, and is being charged with an offence . .

. particulars of the offence alleged against that person shall be set out on a charge sheet. (Form 17.1 Schedule B).”

• The form of charge sheet includes the District Court area and the District number.

• Order 17.1(3) provides that the charge sheet shall be lodged as soon as possible with the Clerk for the District

Court area in which the case is to be heard.

• Order 17.2(2) provides:-

“A person arrested without warrant shall on arrest be brought before a Judge having jurisdiction to deal with the

offence concerned as soon as practicable.”

• Order 17.3 provides that if a person is charged after 10.00 pm, it is sufficient compliance with the requirement for

“as soon as practicable” if he is brought before a judge at the commencement of the sitting scheduled for the

following morning.

18. The relieving provision in Order 17.3 carries the implication that if it is well before 10 pm, as it was in this case, the

requirement has to be satisfied in a different manner.

19. Mr. Colman Fitzgerald SC for the applicant argues first for what he says is an absolute rule, i.e., that any departure

from immediate charging and for whatever reason invalidates the procedure. Alternatively, he contends that a test which

examines the circumstances of the delay leads to the same conclusion. He submits that if the applicant was not charged

forthwith, it follows that all subsequent proceedings were void. The case does not have any excusing circumstances that

could save the proceedings from this fatal and inevitable flaw.

20. Mr. Niall Nolan, counsel for the Director, opposes the claim for judicial review on the grounds that the delay in bringing

the application disentitles the applicant from relief; that there has been acquiescence on the applicant’s part that also

bars him from relief; that the arrest was not made under s. 10(2) but under other legal authority and therefore the

obligation of charging him forthwith did not apply; that notwithstanding the alleged breach of s. 10(2) the District Court

had jurisdiction to deal with the charges and the Circuit Court has jurisdiction to try the applicant; that he was brought

before the District Court as soon as practicable as required by law. Finally, the replying affidavits and submissions also

contend at least by implication that the interval between re-arrest and charge has been explained and is reasonable and

is therefore not in breach of s. 10(2).

21. The case is concerned with the following questions:

A. Did s. 10(2) apply in the circumstances?

B. Was the applicant charged forthwith?

C. If he was not charged forthwith, what are the consequences?

D. Is he prevented from challenging the process because of delay or acquiescence?

22. The first point to be considered is whether the arrest in this case was effected under s. 10(2) of the 1984 Act or

under s. 4(3) of the 1997 Criminal Law Act. Mr Nolan, Counsel for the respondents submits that the Gardaí have a choice

in a case like this whether to arrest under s. 4(3) or under s. 10(2) and whichever they decide has different procedural

consequences. This is why he says that what was required in this case was not that the applicant be charged forthwith,

but rather that he had to be brought before the District Court as soon as practicable. I do not accept this contention. In

my opinion, s. 10(2) does not confer any power of arrest, but simply deals with a situation where the person is in fact

arrested under some power of arrest either by statute or at common law. Section 10(2) implicitly acknowledges the power

of arrest that exists under different legal provisions. I therefore reject the argument based on a factual point that there

are s. 10(2) arrest cases in this context that are different from other arrests. I also think it would be wholly

unsatisfactory if separate sets of obligations that arose depending on which procedural course the Gardaí decided upon.

There are, of course, different powers of arrest contained in a multitude of statutes and also available at common law,

but none of the different powers requires to be analysed in this case.

23. Did the authorities comply with section 10(2) in dealing with Mr Broe? Mr. Colman Fitzgerald SC for the applicant relies

on the Supreme Court decision in O’Brien v The Special Criminal Court & Another [2008] 4 I.R. 514. That case concerned

s. 30A (3) of the Offences Against the State Act, 1939 which was inserted by s. 11 of the amending Act of 1998 and

which was at the material time in the same terms as s. 10 (2). Admittedly, there are significant differences between the

facts and procedures of that case and the present. First, Mr O’Brien was to be brought to the Special Criminal Court to be

charged there, pursuant to a direction under s. 47 of the Act of 1939. The court had to be assembled for the purpose and

the Supreme Court held that the delay of some 15 hours between the arrest and the appearance before the court for

charging was a breach of the requirement in the sub-section. Secondly, since the jurisdiction of the Special Criminal

Court, under section 43 of the 1939 Act, depended on the accused person being lawfully brought before the court, the

proceedings were quashed for invalidity. By contrast, Mr Broe was to be charged by the Gardaí in the station and then

brought to court and it is not a statutory condition precedent of the jurisdiction of the District or Circuit Courts that the

accused be lawfully brought to court. Having noted two of the points that distinguish the facts of the two cases, it is

nevertheless clear that the Supreme Court considered the effect and application of the same words in the same context,

with particular reference to the word “forthwith.”

24. Two important points about O’Brien’s case should be mentioned. The first is that the Court read the similar sub-

section not as expressing a valid purpose for arrest, namely, to charge the arrested person forthwith, but as a statutory

obligation to charge forthwith. An arrest could be made with the intention and for the purpose of immediate charge but

supervening accidental or fortuitous events might make it impossible to do so. The second feature was that “forthwith”

was given its ordinary, dictionary meaning of “at once” or “immediate,” instead of a legal interpretation.

25. Section 30A (3) had been considered by the Court of Criminal Appeal in The People (DPP) v. Birney and Others [2007]

1 I.R. 338, in which the Court held against a similar argument to that advanced by this applicant. Although the case is

cited with approval in O’Brien’s case on a different point, the part of the judgment dealing with this issue is not mentioned

and the applicant submits that it has been superseded. His written submissions at para. 6 deal with the case as follows:-

“In the People (Director of Public Prosecutions) v. Birney [2007] 338 the Court of Criminal Appeal dealt, inter alia,

with a submission that a person released from detention under Section 30 of the Offences Against the State Act

(as amended) must, under the provisions of Section 30A of the said Act be charged forthwith for his arrest to be

valid. The Court of Criminal Appeal (Hardiman J.) dealt with that submission at page 352/353 and held against it.

The judgment in the Court of Criminal Appeal in that Case was given on the 12th May, 2006. It is submitted that

that part of the Birney judgment has been overtaken by the authority of the Supreme Court in the O’Brien case.

This is inconsistent with the judgment of the Court of Criminal Appeal in Birney.”

26. Applying the reasoning in O’Brien v The Special Criminal Court & Anor to this applicant’s circumstances, the applicant

argues that he was not charged forthwith when he was brought to the Garda Station on his arrest. The delay was 3

hours 45 minutes. The time was spent while the Gardaí sought a special sitting of the District Court. It cannot be said,

therefore, that the charge was preferred immediately or at once. The absence of mala fides is irrelevant. It does not

matter that the Gardaí were trying to get a court sitting to deal with Mr Broe. Even if it was necessary to the charging

process to ascertain the court venue, as the replying affidavits assert without contradiction, that is an explanation but

not an excuse for the failure to charge forthwith, as was the need to get the Special Criminal Court to assemble in the

O’Brien case. The fact that the arrested person was kept informed is no more than evidence of the benign disposition of

the authorities.

27. I have to say that I am not at all sure that the applicant is correct in his contention that the Supreme Court meant to

lay down an absolute rule that would apply in all conditions and circumstances. Is anything less than immediate charging

of an accused on a re-arrest to be condemned whatever the circumstances? I am thinking about a situation where the

Gardaí had every intention of charging a person immediately, but some supervening circumstance prevented them from

doing so. A car accident might happen on the way to the Garda station, the building might go on fire, the member in

charge or the officer to do the charging might have a heart attack or otherwise become ill, some external commotion

might occur in the form of a riot or something of that kind – there is in a word a large number of possibilities that could

disrupt the best laid plans of mice and men. If immediate charging is to be regarded as an absolute, unrelated to the

circumstances, then it runs into all these practical possibilities. Having said that, if the judgments do mean immediate and

nothing else, the charging in this case was not immediate.

28. The applicant’s second approach is based on an analysis of a number of High Court cases that have been decided on

this section and which considered different delays and the reasons for them. Some of the cases were decided before and

some after the O’Brien decision. In each of them the High Court considered the general circumstances and the reasons for

the delays that occurred, which ranged from 55 minutes to 2 hours and 17 minutes. If it is permissible to look at the

reasons for any delay, it is clear that the period in this case was significantly longer than those others. Moreover, there

was nothing like the breakdown of equipment such as happened in Whelton v. Judge O’Leary and another [2007] IEHC

460, in which Birmingham J. distinguished the facts from O’Brien’s case.

29. It could be said that charging is not always a discrete and simple statement of accusation and that in circumstances

such as arose in this case it is more of a process that can take time to complete. Hardiman J. said in DPP v. Finn [2003] 1

I.R. 372:

“I have no difficulty with the proposition that where the authorities are entitled to perform a particular procedure on

arrest, they are entitled to a reasonable period of time in which to do it. For example, if a decision is made to

procure the attendance of a doctor for the purpose of requiring the arrested person to provide him with a specimen

of blood or urine, a reasonable period for the attendance of the doctor is required. But, at least upon the

reasonableness of the length of time actually involved being challenged, it will in my view be necessary to

demonstrate that the actual period of time was no more than was reasonable. The onus of proof on this point is and

must be on the prosecution since the reasons why a particular length of time was required will normally be within its

exclusive knowledge. For that purpose evidence about the distance the doctor had to travel, any other

commitments he had at the time and cognate matters might be called so as to render a period of time which

seemed excessive reasonable.”

30. This was not argued, however, and I am reluctant to base any decisive conclusion on it.

31. Ultimately, although I do not believe that the Supreme Court laid down an absolute and general rule for all cases, the

reasoning in O’Brien’s case does in my view apply to this case. The unambiguous judgments of the Court point to the

interpretation of the words of the sub-section that is binding on me. In the result, the conclusion must follow that there

was, however innocently, a failure to comply with s. 10 (2). It is noteworthy also that the actual time delay in this case

is substantially greater than in any of the other cases on the section decided in this court.

32. If the applicant was not charged forthwith, does that invalidate the subsequent court proceedings? The answer is

that generally speaking it does not matter that a person is unlawfully brought before a court. The exceptions are first

where the court is the Special Criminal Court, because its jurisdiction expressly requires that the accused be lawfully

brought before it: s. 43 of the Offences Against the State Act 1939. The second exception is where there has been an

egregious violation of the accused person’s constitutional rights, as in the Trimbole case [1985] I.R. 550.

33. The Director’s submissions rely on DPP v. Bradley [2000] 1 I.R. 420, in which McGuinness J. cited with approval the

judgment of Keane J. (as he then was) in Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 I.R. 98 at 113, where

Keane J. said:-

“It has been repeatedly pointed out that, as a general rule, the jurisdiction of the District Court to embark on any

criminal proceeding is not affected by the fact, if it be the fact that the accused person has been brought before

the court by an illegal process. If I refer to a judgment which I delivered in Killeen v. Director of Public Prosecutions

[1997] 3 I.R. 218, it is simply because, so far as I am aware, it is the latest restatement of that well settled

principle. I said at p. 228:-

‘It can, in general, be said that the jurisdiction of the District Court to embark on any criminal

proceeding, including the holding of a preliminary examination, is unaffected by the fact, if it be the

fact, that the accused person has been brought before the court by an illegal process. This was so held

by Davitt P. in The State (Attorney General) v. Fawsitt [1955] I.R. 39 at p. 43 where he said:-

‘The usual methods of securing the attendance of an accused person before the District Court, so

that it may investigate a charge of an indictable offence made against him, is by way of arrest or

by way of formal summons, but neither of these methods is essential. He could, of course, attend

voluntarily, if he so wished; so far as the exercise of the court’s substantive jurisdiction is

concerned, it is perfectly immaterial in what way his attendance is secured, so long as he is

present before the District Justice in court at the material time. Even if he is brought there by an

illegal process, the court’s jurisdiction is nonetheless effective.’

Some qualifications to that general principle may be noted in passing. First, evidence obtained from the

accused person during the course of a detention which proves to be unlawful, whether because of a

defective warrant or for some other reason, may subsequently be excluded as inadmissible by the court

of trial. Secondly, where the process by which the person is brought before the court involves a

deliberate and conscious violation of his constitutional rights, of which the most graphic example is The

State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550, the court may be justified in

refusing to embark upon the hearing. There may also be cases in which a question is raised as to the

validity of the detention in Garda custody of a person brought before the District Court, in which case

the appropriate course is to remand the person concerned, enabling him, if he wishes so to do, to apply

to the High Court for an order of habeas corpus. (See the observations of McCarthy J. in Keating v.

Governor of Mountjoy Prison [1991] 1 I.R. 61). None of these considerations arise in the present case.’”

34. McGuinness J. in the Bradley case found that none of those exceptional circumstances arose in that case either.

Bradley’s case concerned an arrest by the Gardaí without warrant for an offence to which the general power of arrest

without warrant did not apply. The District Judge stated a case as to whether the charges should be dismissed if the

person’s constitutional right to liberty had been violated in the procedures adopted in bringing him before the District

Court. The court held that the question whether there had been a lawful arrest was immaterial to the hearing before the

District Court. The learned Judge decided that since none of the exceptional considerations mentioned by Keane J. arose

in the case that was “sufficient to dispose of the present case”. McGuinness J. went on (pp. 427/8):-

“It is, as was pointed out by counsel for the prosecutor, notable that the learned Keane J. uses the term ‘graphic’

to describe the facts of The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550. The

circumstances in the instant case are very far removed from such a deliberate and conscious violation of

constitutional rights. I am of course, aware that the term ‘deliberate and conscious’ does not necessarily involve

mala fides; however, on the facts as set out in the case stated, it seems unlikely that the unlawful arrest in this

case would require the court to refuse to embark on the hearing. Ultimately, however, as was held by Denham J. in

Coughlan v. Judge Patwell [1993] 1 I.R. 31, this is a decision for the judge of the District Court. Denham J. states at

p. 37:-

‘If an individual as here alleges that his constitutional rights have been infringed in procedures adopted

in bringing him before the court, then the District Court has jurisdiction to, and indeed should, hear the

submission and take such steps as it considers proper. It is not appropriate for a District Court to refuse

to allow such a submission to be made to the court. It may be that the judge on hearing the submission

would have a very clear picture and could deal with the matter there and then. It may be that the

judge would take the view that there should be a full submission after evidence is heard in the trial. It

may be that the judge would take evidence and state a case.’

The learned District Court Judge clearly acted correctly in hearing both evidence and submission and in stating a

case for this court. It remains for him to decide whether or not to dismiss the case, but this is a decision which he

should make in the light of the general rule, as set out by Keane J., that the jurisdiction of the District Court to

embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been

brought before the court by an illegal process. Only if he feels that there has been a deliberate and conscious

violation of the accused’s rights, as in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550,

should he decline to embark on the hearing.”

35. The applicant in this case expressly disavows any suggestion of mala fides on the part of the Gardaí. Like the other

cases that have been cited above, there is nothing in this case to bring it within the Trimbole exception.

36. It is indeed arguable whether there was any breach of the accused’s constitutional rights. The applicant was lawfully

arrested by the Gardaí, a fact which is not in dispute. He was to be charged and his entitlement was to be brought before

the District Court as soon as practicable. That is precisely what happened. The only irregularity that is alleged is in the

timing of the presentation of the charges to him. He did not have a right to liberty and his only complaint is about the

delay that occurred while the Gardaí tried to arrange for a special sitting of the court in order to bring him before it as

soon as they could. The circumstances of this case may be contrasted with those of the Bradley case, where the arrest

itself was unlawful.

37. The result is that the court proceedings whereby Mr Broe comes to stand his trial are lawful and valid,

notwithstanding the delay in charging him.

38. The last issue is whether the application should be rejected because of acquiescence or delay on the part of the

applicant. On the 15th January 2009, he was sent forward to Letterkenny Circuit Court for trial on the 3rd February 2009

but on the day before he obtained leave in these proceedings, with an order stopping his trial. Between the 13th October,

2008 when he first appeared in court, and the 2nd February, 2009, when he got leave, he did not raise the matter on

which he now relies. The applicant decided to change solicitors which led to an assignment being made on the 15th

January, 2009 and his new solicitor thought of the point about the time of charge when he read the Book of Evidence.

The rebutting affidavit sworn by the applicant’s present solicitor says that he was assigned on the 15th January, 2009

following the decision by the applicant to change solicitors.

I say that it was only when the book of evidence was read that it transpired that an issue arose on the lawfulness

of the re-arrest of the applicant and subsequent proceedings. I say that the applicant was so advised and that he

gave instructions to institute the proceedings herein. Thereafter things moved with all due haste and the ex parte

application for leave herein was made on the 2nd February, 2009.

I say and am advised that the primary issue before the courts in these proceedings is whether the applicant when

rearrested was charged forthwith, not whether the applicant was brought before a district judge as soon as was

practicable.

39. A person seeking judicial review is required to move promptly - Order 84 rule 21(1). It is important that official acts

that are challenged are declared valid or void as early as possible. If the review takes place in timely fashion people who

are affected suffer less disruption of their affairs. In criminal proceedings, the community has an interest in seeing the

matter brought to a conclusion and so does the victim and other witnesses.

40. An applicant’s failure to raise objection to a much earlier event until the eve of his trial militates against his

application, particularly where a technical breach and not a matter of substantive justice is in issue. Even in the latter

case, as Henchy J observed in The State (Byrne) v. Frawley [1978] I.R. 326 at 350:-

“What has been lost in the process of events is not the right guaranteed by the Constitution but the prisoner’s

competence to lay claim to it in the circumstances of this case.”

41. The explanation that the issue was only discovered when the new solicitor came into the case does not, in my

opinion, materially affect the situation. The solicitor should normally be considered as a single entity not dependent on an

individual person. As a general rule, a change of solicitor should not make a situation better or worse for a party to

litigation. The fact that a party’s legal advisor did not think at a particular time of a point that later occurred to him is not

an excuse for delay in raising it earlier. I consider the change of solicitor from one who did not, for whatever reason, raise

the timing of the charge to one who did so to be essentially similar. I do not therefore find that the change overcomes

the delay.

42. It is difficult to address the question of delay in isolation from the conclusions I have reached on the other issues and

to be confident that the latter have not had an impact. Having said that, it does seem to me that the applicant did in all

the circumstances lose the competence to lay claim to the point, in the words of Henchy J.

43. Finally, I refer again to the judgment of the Court of Criminal Appeal in DPP v. Birney [2006] I.R. which has relevance

for two of the issues in this case. Hardiman J. delivered the Court’s judgment, in which he cited the decision of the Court

of Criminal Appeal in The People v. Kehoe [1985] I.R. 444:

“There, the applicant had been brought before the Special Criminal Court while in s. 30 detention. He argued that as

he had been physically restrained during a shoot-out with the Gardaí prior to his arrest, his subsequent purported

arrest under s. 30 and its later extension was invalid. Therefore, he had been in unlawful custody at the time he

was brought to the Special Criminal Court.

The judgment in the Court of Criminal Appeal was delivered by McCarthy J. who commenced his judgment with the

observation:

‘This application for leave to appeal has one undeniable characteristic - it is devoid of merit.’

The learned judge said this because the applicant had been one of a group who, at a private home in County

Wicklow, were found carrying loaded firearms and subsequently engaged in a gunfight with the Gardaí.”

McCarthy J. then recorded that the Special Criminal Court before whom the applicant had been brought “Was

satisfied that his jurisdiction as conferred by s. 43 of the Offences against the State Act, 1939, is lawfully invoked

when, in regard to a scheduled offence, the Director of Public Prosecutions directs that the person be brought

before that Court”. McCarthy J. continued:

“It is sufficient to say that the jurisdiction of the Special Criminal Court is conferred by s. 43 of the Act

of 1939, and that that jurisdiction does not depend upon the technical validity of the manner in which

an individual may be physically present before that Court which has (by s.43(1)(c) jurisdiction to order

the detention of and to detain in civil or military custody or to admit to bail . . . pending trial by that

Court and during and after such trial until conviction or acquittal, any person sent forward, transferred

or otherwise brought for trial before that Court.”

44. McCarthy J. also made two other relevant observations:

“This is not to say that there are not circumstances constituting unfair procedures or breach of

constitutional rights that would not invalidate a trial; ordinarily, however, as was pointed out during the

course of the argument in the Special Criminal Court by counsel for the Director, the time to take such

a point is when first brought before that Court – if the point is not then taken, it is spent.”

45. As to the latter point, it is sufficient to say that there are no circumstances whatever in the present case capable of

constituting unfair procedures of breach of Constitutional rights so as to invalidate the trial. The applicants have instead

addressed an argument to the Court which is wholly technical, as they are entitled to do.

46. In my view, the concluding comments by Hardiman J. in Birney’s case apply with at least equal force in this case.

47. For these reasons I refuse this application.