Supporting Documents:
Appl.for Leave to Appeal.pdf

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

Result: The Court does not grant leave to appeal.

Reasons Given:

Jurisdiction

1. The applicant seeks to leave to appeal against a decision of the Court of Appeal to uphold the refusal of the High Court to direct an inquiry under Article 40.4 of the Constitution into the legality of his detention.

2. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

3. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background

4. The applicant was arrested on the 6th November 2017, on suspicion of conspiracy to commit murder. He was taken to and detained in Irishtown Garda Station under the provisions of s.50 of the Criminal Justice Act 2007. The section, as amended, permits an extended period of detention up to a limit of seven days, subject to certain requirements.

5. On the evening of the 8th November 2017 an application was made to the District Court under s.50(3) of the Act for the extension of the detention of the applicant. The applicant was properly on notice of this and was represented by counsel. Evidence in relation to the application was given by a Detective Chief Superintendent. The arresting officer was not in court but the member in charge who had authorised the initial detention of the applicant was present. He was not called to give evidence.

6. It was submitted on behalf of the applicant that a necessary proof was missing in that, it was submitted, evidence from the arresting garda was a condition precedent to the exercise of the power to extend the detention. The argument was that the judge had to be satisfied that the original arrest was lawful, which depended upon the state of mind of the arresting member. The Detective Superintendent told the judge that he personally was unaware of the details of the arrest but that the member in charge could testify as to his conversation with the arresting member.

7. The District Judge took the view that the proposed evidence was unnecessary and made the extension order. Two days later the applicant moved for an inquiry under Article 40.4.

The judgments

8. The judgments of the High Court and Court of Appeal were both ex tempore. The Court of Appeal took the view that while there was nothing to stop the applicant raising an issue as to the lawfulness of his arrest, the section did not require lawfulness of arrest to be established to the satisfaction of the District Judge.

The statutory provisions

9. Under the terms of s.50(3), the initial period of detention is for six hours, authorised by the member in charge of the station at the time of arrival of the arrested person. A second period, of up to 18 hours, may be authorised by a member not below the rank of superintendent. A third period, of up to 24 hours, may be authorised by a member not below the rank of chief superintendent. To extend the detention further, it is necessary to apply to a judge of the Circuit or District Court, who may authorise a period not exceeding 72 hours. A final extension of up to 48 hours may also be given by a judge.

10. Section 50(3) stipulates that in each case of an application for extension by a judge, the judge concerned must be satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously. The arrested person must be brought before the judge at the hearing of the application, and the judge is to hear any submissions made or evidence adduced by or on behalf of the person and the member of the Garda Síochána making the application. In addition, the judge may order that the person be brought back before the court at a specified time or times and shall, if not satisfied that the person’s detention is justified, revoke the warrant of extension and order the person’s release.

11. Section 50 was amended by s.23 of the Criminal Justice (Amendment) Act 2009. For the purpose of considering the instant application, the relevant amendments are made by the insertion of the following new provisions into s.50 (4):

“(4B) Save where any rule of law requires such an issue to be determined by the Court, in an application under subsection (3) no issue as to the lawfulness of the arrest or detention of the person to whom the application relates may be raised.

(4C) (a) In an application under subsection (3) it shall not be necessary for a member of the Garda Síochána, other than the member making the application, to give oral evidence for the purposes of the application and the latter member may testify in relation to any matter within the knowledge of another member of the Garda Síochána that is relevant to the application notwithstanding that it is not within the personal knowledge of the member.

(b) However, the Court hearing such an application may, if it considers it to be in the interests of justice to do so, direct that another member of the Garda Síochána give oral evidence and the Court may adjourn the hearing of the application for the purpose of receiving such evidence.”

12. As is clear from a range of determinations made by this Court since the 33rd Amendment of the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court, or another court from which the Court of Appeal has appellate jurisdiction prescribed by law, has simply been in error in some material respect, the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise, a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more, the interests of justice will not require a further review on appeal to this Court.

13. It is against that background that it is necessary to consider the basis on which it is said that the constitutional threshold is met in this case.

Decision

14. It is unfortunate that the amendments to the section do not appear to have been adverted to in either the District Court, the High Court or the Court of Appeal. In the first place, it was obviously open to the District Court, under the amending provisions, to hear the evidence of the member in charge if there was any concern about the arrest. Secondly, while there must be some scope for debate as to the meaning of the phrase “save where any rule of law requires”, it is difficult to see how a meaningful debate could be conducted as to the entitlement of the applicant to seek relief under Article 40.4, on a point related to evidence of arrest in this context, without addressing s.50 4(B). That has not been done in this case, and cannot be done for the first time on appeal to this court.

15. In the circumstances leave to appeal will be refused.

And it is hereby so ordered accordingly.