The Gazette 1983

GAZETTE

MAY 1983

taken to the Richmond Hospital. He remained there for another nine days. On his discharge from the hospital he was again arrested and brought before the Special Criminal Court, charged with offences and later found guilty. 'Illegal Arrests' It was submitted on behalf of the accused O'Shea that the accused had been arrested in the forest and brought in custody to the Regional Hospital Galway where he remained until he was discharged some seven days later. It was submitted that the "arrest" in the forest and subsequent custody were illegal. There was evidence at the trial of the accused that the accused had been first arrested on discharge from the Galway Regional Hospital pursuant to Section 30 of the Offences Against the State Act 1939. Counsel for the accused had submitted that this arrest on discharge from the Regional Hospital was unlawful and his subsequent detention was illegal. It was argued that the manner in which the Gardai brought the applicant O'Shea from the forest to hospital and treated him while in hospiral "exhibited all the characteristics of, and incidence of, an arrest" and that the applicant was not free to leave their custody nor told he could leave. In evidence it had been established that his room was under armed police guard. The Gardai strongly denied that they had arrested him in the forest. The Court of Trial accepted their evidence and stated that it was satisfied beyond a reasonable doubt that the accused had not been arrested in the forest either at common law or under Section 30 of the Offences Against the State Act 1939. The Court of Criminal Appeal held that this finding could not be challenged. The Court stated that although the Gardai had a duty to arrest the applicant once they had good ground for charging him with the serious crimes (Creagh v. Gamble* 1 ) the Gardai were entitled to postpone the implementation of that duty in view of the suspect's urgent need for medical treatment. The Special Criminal Court found that the applicant "willingly and voluntarily" remained in Galway Regional Hospital until the time he was discharged by the hospital authorities. The Special Criminal Court found as a fact that he had not been detained in hospital against his will. The Court of Criminal Appeal also stated that although in certain circumstances armed gardai may be in the vicinity of a suspect, to ensure, inter alia, that he does not escape, this does not in itself mean he is in garda custody. In support of the submission on behalf of the applicant, the Court of Criminal Appeal was referred to a statement by Henchy J in The State (Walsh) v. McGuire 18 . "As an arrest means a physical act done with a view to detention, and since the accused was already arrested and in detention, this cannot have been an arrest in law." The Court of Criminal Appeal stated that Mr. Justice Henchy was referring to a situation where a person was in lawful detention and to the purported second arrest of such a person, whereas in this case it had been argued that the applicant was in unlawful custody. The Court held that the applicant was never in Garda custody until his arrest outside his room in the Galway Regional Hospital. So the argument as to the invalidity of the arrest failed.

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