The Gazette 1980

JULY-AUGUST

1980

GAZETTE

(3) The High Court decision in The State (Brennan) v. Mahon, that it was not lawful to charge a person who was arrested pursuant to the provisions of Section 2 of the Emergency Powers Act 1976 otherwise than in a District Court or a Special Criminal Court, was not a correct reading of the Section or of Section 30(4) of the Act of 1939. The sub-section could not be read as excluding a power to charge the detained person before he was brought to Court. If such an exclusion was intended, it would have been expressly stated. The power to charge the detained person before a Court before the end of the specified period of detention is not intended for any purpose other than to ensure that detention under the Section may be terminated before the specified period (24 hours or 48 hours) had expired.lt could not be construed as precluding the charging of a person before charging him in Court. (4) It was therefore unnecessary to deal with the submission made on behalf of the Defendant namely that even if it was not permissible to charge the Prosecutor other than before the Court, that the invalidity of the earlier charging of the Prosecutor at the place of detention would not deprive the District Justice of jurisdiction to deal with the case when it did come before him, including making an order returning the Prosecutor for trial. Per Griffin J. (in a concurring judgment): "If the Oireachtas had intended that it was not permissible to charge the person detained at his place of detention, it seems to me that this would have been clearly stated in the sub-section by the use of appropriate words". Per O'Higgins CJ. (in a concurring judgment): "It is to be noted that the sub- section does not direct that the person concerned 'be charged in' the District Court or Special Criminal Court. It merely provides that he shall be charged 'before' either of these Courts. If, as in the Brennan case, and in this case, a person is charged with an offence in the Garda Station and is then brought before the District Court or the Special Criminal Court and evidence is given in obvious explanation of his being there, that he had been so charged with an offence, can it be said that he

After more than six months after the return for trial in July 1977, the Prosecutor applied on the 9 March 1978 to the High Court for a conditional order of Certiorari to quash the District Court Order returning him for trial, on the ground that because he was charged with the robbery, not in Court but in the Garda Station while detained pursuant to Section 30 of the Act of 1939, the return for trial was inValid. The Prosecutor relied on the recent High Court decision (per Finlay P.) in The State (Brennan) v. Mahon (13/2/78 - unreported) where an absolute order of Certiorari had been granted to quash an order of return for trial, where the accused who had been held under Section 2 of the Emergency Powers Act 1976 had been charged in the place of detention and not in the District Court. The Prosecutor in the present case wished to extend that decision to the provisions of Section 30(4) of the Act of 1939 which in this respect were similar to Section 2 of the Act of 1976. However, the High Court (Costello J.) had refused a conditional order holding that the Prosecutor was not in detention pursuant to Section 30 holding that the detention had ended when he had been taken from the Garda Station before he was charged to point out the house to the Gardai. The Prosecutor appealed to the Supreme Court. Held: (per Henchy J.) that: (1) As the application for the Conditional Order had been made outside the six months time limit provided for in 0.84 r 10 of the Rules of the Superior Courts, the Prosecutor would have to show that there were exceptional and compelling reasons why his failure to move within six months must be overlooked. In this case he had not done so, notwithstanding that The State (Brennan) v. Mahon, (13/2/78) had been in the meantime decided and was being relied on. (2) Despite the interlude of the journey in the motor car with the two Gardai on 18 March 1977, the Prosecutors absence was but a temporary deviation from the statutory custody, (and a deviation to which the Prosecutor had consented) and when he was brought back to the Garda Station the correct statutory detention under Section 30 of the Act of 1939 had been resumed.

CERTIORARI

A person detained under section 30 of the Offences Against the State Act 1939 may be validly charged at the place of detention during his period of detention under that Section; it is not necessary that he be first charged in the District Court. The Prosecutor (Walsh) had been arrested on 16 March 1977 pursuant to Section 30 of the Offences Against the State Act 1939 in connection with an armed robbery. This arrest under Section 30 of the Act of 1939 allowed his detention for a period of 24 hours, but Section 30 also provided that the period of detention might be extended for a further period of 24 hours if an officer of the Garda Siochana not below the rank of Superintendent so directed; such a direction was given, and the Prosecutor could therefore be legally detained under the Section for a maximum of 48 hours from the time of his arrest on 16 march 1977 to the same time on 18 March 1977. Section 30(4) of the Act of 1939 provides that: "A person detained under the next preceding sub-section may, at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence or be released by direction of an officer of the Garda Siochana and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub- section". After making a statement of an incriminating nature to the Gardai early on 18 March 1977, the Prosecutor had been taken with two Guards to a house where the Prosecutor had stated he had brought three men who had been involved in the armed robbery. He was then returned to the same Garda station where he had been detained. Later on the same day, 18 March 1977 at the Garda station he was formally charged with armed robbery. On the same afternoon, before the end of his permitted detention under Section 30 of the Act of 1939 was reached, he was brought before the District Court on that charge. Eventually, on 14 July 1977 he was returned for trial by the District Court to the Special Criminal Court.