THE SUPREME COURT

Between/

1. Introduction
1.1 It is fair to say that there have been developments in the regime which the law provides in respect of persons arrested for the purposes of investigation over the years. The question which arises in this reference concerns one aspect of that regime. The defendant/respondent (“Mr. Roche”) was acquitted on the only two counts of an indictment which alleged possession of cannabis resin. The prosecutor/applicant (“the D.P.P.”) has referred an issue of law to this Court, without prejudice to that acquittal of Mr. Roche, under s.34 of the Criminal Procedure Act 1967. That section permits the D.P.P. to refer “a question of law” to this Court for determination where an accused is found not guilty on the question of law concerned. While proceedings of this type are sometimes referred to as an appeal without prejudice it is, perhaps, more correct to describe such an application by the D.P.P. as a reference.

1.2 The questions of law which now come before this Court are fully set out in the judgments of Hardiman and Charleton JJ. and it is unnecessary to set them out in detail here. Furthermore, the facts and the issues which were canvassed are likewise fully set out in those other judgments. I have written this separate judgment because I do not fully agree with the position adopted in either of those judgments.

1.3 As appears from the main judgments on this appeal, the key central questions which arise concern the practical operation of the regime which requires that the so-called member in charge of a gárda station keep the validity of the continuing custody of a suspect under review.

2. The Regime
2.1 First, section 4(2) of the Criminal Justice Act 1984 (“the 1984 Act”) requires, in order that the continuing detention of a person for investigative purposes be authorised, that where a person is brought to a gárda station under arrest, the member in charge must have “reasonable grounds for believing that his or her detention is necessary for the proper investigation of” a relevant offence.

2.2 Of particular relevance to the issues which arise in this case are the provisions of subss. (4) and (5) of s.4 of the 1984 Act. Subsection (4) requires that a person be released from custody forthwith (unless there are other grounds for his continued detention) if “there are no longer reasonable grounds for suspecting that he has committed an offence to which this section applies…” Subsection (5), in similar vein, provides for release if there are “no longer reasonable grounds for believing that [the suspect’s] detention is necessary for the proper investigation of the offence to which the detention relates…” There are other provisions, which are not relevant to this case, concerning release during a period of detention or the possible conversion of an inquiry into one offence to an inquiry into another offence.

2.3 What is, however, absolutely clear from the provisions of s.4 of the 1984 Act is that there are two continuing requirements which must be in place in order, ordinarily, for the continued detention of a suspect for investigative purposes to be justified in law. First, the suspicion which justified the arrest of the person, being a suspicion that they committed a relevant offence, must continue. Second, the view which the member in charge formed when allowing for the detention of the suspect when brought to the gárda station, to the effect that the detention of the person in question was required for the purposes of a relevant investigation, must also continue. The corollary is also clear. If either of those bases for the continued detention of a suspect disappears (i.e. if either the reasonable suspicion of having committed a relevant offence or the need for detention to aid the investigation of a relevant offence is no longer present) then the suspect must be released unless other provisions of the legislation (which are not relevant for present purposes) arise.

2.4 The core issue of principle on this appeal is as to how practical effect is to be given to the undoubted entitlement of a suspect to be released in the event that one or other of those requirements justifying continued detention disappears. A subsidiary, although closely connected, issue concerns the extent of the evidential burden which rests on the prosecution to establish the continuing validity of custody in the light of those legislative measures. I turn to those questions.

3. The Issues of Principle
3.1 The starting point has to be to note the language of subss. (4) and (5), both of which speak of it being necessary to release a person where there are “no longer reasonable grounds” for suspicion of the person having committed a relevant offence or for it being necessary to continue their detention for relevant investigative purposes. Those subsections do not specify who is to make the decision as to whether reasonable grounds continue to exist for either of the matters concerned. But it would make a nonsense of the clear entitlement of a suspect to be released in circumstances where those reasonable grounds no longer existed if the obligation to assess those issues did not rest on any particular person.

3.2 It seems to me that it follows that the member in charge, being the person who is given the task of ensuring that a suspect who is to be detained for investigative purposes is properly so detained in the first place, must also be the person who is intended, under the legislation, to ensure that a suspect is released where reasonable grounds no longer exist for either of the conditions which underlie a valid continuing detention.

3.3 However, it is important to note the distinction between the language used in subs.(2), on the one hand, and that contained in subss. (4) and (5), on the other. In order, under subs.(2), for detention for investigative purposes to be valid, the member in charge has a positive obligation to have “reasonable grounds” in accordance with the subsection. Thereafter, the obligation to release arises where such reasonable grounds “no longer” exist. There can be no doubt that it is necessary, at the beginning of an investigative detention in a gárda station, for the relevant member in charge to have positively applied his or her mind to the question of whether relevant reasonable grounds exist in order that there be a valid continuing detention. However, it cannot have been that the legislative intention necessarily required a positive obligation on the member in charge to constantly review the situation on a minute by minute basis. On the other hand, if the member in charge had no obligation to consider the question of whether the circumstances justifying detention continued at all, then the right to be released contained in the legislation would hardly be of any value.

3.4 In those circumstances, it seems to me that the obligation on the member in charge is to address the question of whether the necessary basis for continued detention exists whenever the circumstances ought reasonably to lead to a consideration of whether those conditions do, in fact, remain in place. In his judgment, Charleton J. suggests that the duty to order release is “entirely predicated upon the condition of an event happening which triggers either section”. I agree that there must be something to trigger the obligation. However, in my view, the circumstances which may trigger such an obligation may be positive or negative.

3.5 Where there is a development which might lead to a question over whether there are reasonable grounds for believing that the suspect has committed a relevant offence or whether the suspect’s continued detention is necessary for relevant investigative purposes, then there is a clear positive obligation on the member in charge to consider whether the pre-conditions to continued detention remain. However, in my view, there is also an obligation on the member in charge, particularly in the context of subs.(5) and the need that there be continuing reasonable grounds for believing that detention is necessary for investigative purposes, to consider whether that situation can truly be said to continue to exist where nothing much of an investigative nature seems to be happening.

3.6 That is not to say that a suspect is entitled to be released simply because little by way of investigation has taken place. There may well be good reason why certain aspects of an investigation (for example, the questioning of one particular suspect ahead of another) may lead to little action being taken which is relevant to a particular suspect for a period of time even though there may remain good reason to believe that the continued detention of the suspect in question is necessary for relevant investigative purposes.

3.7 Where, therefore, there are either actual developments in the investigation or there is a lack of activity in relation to any aspect of the investigation, which might raise a legitimate question as to whether a suspect’s continuing detention was necessary for such investigative purposes, it seems to me that an obligation is placed on the member in charge to consider whether the necessary reasonable grounds for continued detention subsist.

3.8 That leads to the particular issue which arises in the circumstances of this case which stems from the fact that there was a change of the member in charge during the period of Mr. Roche’s detention.

4. A Change of the Member in charge
4.1 The question which arises under this heading is as to the extent, if any, to which the obligations on the member in charge may differ because there is a change of personnel. Clearly, assuming that detention was regular in the first place, the original member in charge, being the member who was in charge when the suspect was first brought under arrest to the gárda station in question, must be taken to have been satisfied that there were grounds for suspecting the individual concerned of a relevant offence and that there was a reasonable basis for concluding that detention was necessary for the relevant investigation. The obligation on such a member in relation to continued detention has already been addressed. That member must consider whether the relevant reasonable grounds continue to subsist either if there is a positive development which might call that issue into question or if there is inaction on the investigative side which might raise doubts as to whether continued custody is necessary for investigative purposes. But the original member in charge will know why there were grounds for suspecting the individual of a relevant offence in the first place and will also know, at least in very general terms, why the detention of that person was considered necessary for investigative purposes.

4.2 To take a simple example, it might be considered necessary to question an individual but to do so after another individual, also suspected of involvement in the same events, had been questioned to a certain point. To the original member in charge, it might not be a particular surprise in those circumstances if a suspect was not taken for questioning or any other direct investigative action was not taken relative to the suspect in question for a period of time. In those circumstances, a lack of action might raise no legitimate issues from which it might be argued that grounds for continued custody for investigative purposes did not continue.

4.3 On the other hand, a new member in charge may have a greater obligation of inquiry precisely because that new member in charge may not have the same underlying information as would have been available to a predecessor. To turn to the example given earlier, an original member in charge might, on the basis of information obtained when the suspect first came to the station in custody, be aware that it was unlikely that the suspect would be questioned, or that any other aspects of the investigation which required the presence of the suspect would occur, for a reasonable period of time. The fact that nothing had happened for two or three hours might not, in those circumstances, represent a circumstance which would have required the original member in charge to consider whether a continuing necessity of detention for investigative purposes persisted. However, a new member in charge, who was not aware of those underlying facts, might be put on inquiry by a similar delay. Likewise, a new development in the investigation might, in the context of the knowledge of one member in charge, not truly give rise to any questions concerning the continued necessity for detention but might, in the context of a new member in charge with less information, provide the circumstances which would trigger an obligation to at least consider in more detail whether continuing detention was justified. In summary, it seems to me that the sort of circumstances which may require an active consideration by a member in charge of whether continuing detention is justified will depend on all of the circumstances of the case including, importantly, the state of knowledge of the relevant member in charge. This latter factor can, potentially, alter when there is a change of member in charge, for the information available to the new member in charge may not necessarily be the same as that which was available to the original member in charge.

4.4 In that latter context it is, in my view, important to emphasise that the nature of the change of the member in charge and the length of time for which that change is likely to last may themselves be important factors or circumstances. A member of An Gárda Síochána who takes over on a very short term basis as member in charge may not have any circumstances brought to his or her attention which would warrant giving detailed consideration to the justification for continued detention. Likewise, a brief period of inactivity in the investigation during an equally brief period in charge by a substitute member might not, in all the circumstances, give rise to a need to consider whether continued detention for investigative purposes was truly required. On the other hand a member in charge taking over on a permanent basis and not finding any activity for a significant period of time might well be placed in a position where there was an obligation to consider whether investigative detention continued to be justified.

4.5 In my view, it is not, therefore, the case that there is an automatic obligation on a new member in charge to immediately satisfy him or herself as to the continuing validity of any detention. Rather it is the case that the fact that there is a new member in charge (and, therefore, that the level of knowledge which that new member may have may not be the same as that of a predecessor) is one of the circumstances which must be taken into account in determining whether an obligation to consider the validity of continued investigative detention has been triggered.

5. The Circumstances of this Case
5.1 I should first state that I agree with Hardiman J. that, in reality, the first leg of the question referred to this Court, being the issue of whether the “new” member in charge must give evidence as to whether he/she considered that “there were reasonable grounds for the original detention” did not truly arise in this case. There is no basis in law for requiring a new member in charge to second guess or review the decision made by the member in charge who held that position when the suspect was first brought to the gárda station. The validity of the initial detention after arrival at the gárda station depends on the sustainability of the view taken by the member in charge at that time.

5.2 The specific question, which is relevant to this case, is as to whether the fact that there was no evidence that the “new” member in charge considered that there were reasonable grounds for continuing the detention of itself rendered that continuing detention unlawful. That issue comes down, in the main, to one which relates to the evidential burden on the prosecution. For the reasons which I have already sought to analyse I am satisfied that there is an obligation on any member in charge (“new” or “existing”) to review whether continuing detention is required where the circumstances trigger such an obligation. Those circumstances may be more likely to trigger such an obligation in the case of a “new” member in charge. But the real question, for the purposes of this appeal, is as to whether it is necessary for the prosecution, in establishing the lawfulness of the detention of the relevant suspect, to lead evidence to suggest that the circumstances which might have triggered such an obligation had not arisen. In other words, is the simple fact that, as here, the defence had placed the prosecution on proof of the validity of Mr. Roche’s detention sufficient, of itself, to place an obligation on the prosecution to establish that nothing had happened to trigger the obligation of further consideration?

5.3 In my view, there is not a simple yes or no answer to this question. The question of whether an obligation to consider the validity of continued detention had arisen is one which, for the reasons which I have already sought to analyse, requires consideration of all the circumstances of the case. To the extent that some of those circumstances may be favourable to the prosecution’s proposition that a requirement to consider has not been triggered, then there is a clear onus on the prosecution to establish those circumstances. In that context, I agree with the point made by Hardiman J. to the effect that the obligation to establish any facts relevant to the admissibility of evidence is, on the recent authority of the majority of this Court in D.P.P. v. J.C. (No.1) [2015] I.E.S.C. 31, a burden which must be borne by the prosecution. However, it does not seem to me necessarily to follow that the only way in which that evidence can be given is by the member in charge expressing a view on the issue. If there is evidence which is sufficient to establish that the circumstances in which an obligation to review the justification for continued detention had not been triggered, even if that evidence comes from sources other than the relevant member in charge, then the prosecution will have, in my view, at least on a prima facie basis, established the lawfulness of the detention in question.

5.4 Obviously, it would be much easier if that information were given in evidence by the member in charge concerned. However, in my view it does not have to be given in that way provided that there is adequate evidence before the Court to satisfy the trial judge that the requirement to review the continuing validity of the custody concerned had not been triggered.

5.5 Given that the trial judge did not ask himself that question in that way it is not, in my view, possible to be prescriptive as to how the trial judge, who heard the evidence, might have answered that question had he posed it to himself.

5.6 In that context, I would also agree with the view expressed by Hardiman J. that the assessment which the Court is required to carry out can only be based on matters which were proved in evidence. That flows from the obligation on the prosecution identified in J.C. If there was, for example, apparent inactivity in the investigation for a sufficient period of time to prima facie trigger an obligation to consider whether continued detention for investigative purposes was required, then an evidential burden would fall on the prosecution to explain by evidence why either, in the circumstances of the case, the requirement was not triggered at all, or if the requirement was triggered, that the relevant member in charge applied his or her mind to the question and came to a reasonable conclusion that continued investigative detention was required.

5.7 In the context of this case the fact, as noted by both Hardiman and Charleton JJ., that the custody record was not put in evidence would undoubtedly have raised questions, at a minimum, as to whether there was a sufficient evidential basis for a conclusion that a requirement to positively consider whether investigative detention continued to be justified had been triggered.

5.8 Finally, it might be said that one of the issues which tangentially arises from the argument in this case is as to the extent to which there may be any obligation on the defence to positively put forward a basis for challenging the lawfulness of the detention of an accused as part of an argument as to the admissibility of evidence. There is no doubt that the defence, in this case, did no more than to place the prosecution on proof of the lawfulness of Mr. Roche’s custody. Prior to the evidence on that issue being heard, no specific issue was raised by the defence directed towards the particular point which persuaded the trial judge to exclude the relevant evidence, being the point which is at the heart of this judgment. Nor was such an issue raised in the course of cross-examination of any of the prosecution witnesses. There might, potentially, be a question as to the extent to which it is sufficient for the defence to simply put the prosecution on proof of the lawfulness of relevant custody and then, when the evidence has been heard, raise an issue which amounts to a complaint that the prosecution has failed to prove a negative. However, I would not express any view on that issue in this reference. No debate on the point took place before the trial judge. No significant argument, therefore, took place before this Court at the oral hearing. It would, in those circumstances, not appear to me to be appropriate to attempt to deal with what would be a most important issue in the law of criminal evidence in a case where the issue was barely debated and arises only in a very tangential way.

5.9 Having set out the proper approach which, in my view, a trial judge, faced with an issue such as that which arose in this case should apply to the issue of the admissibility of evidence, I do not think it is either possible or appropriate to attempt to indicate how that issue should have been dealt with by the trial judge in this case. In any event it is possible to address the question of law posed to this Court by the D.P.P. without specifying precisely how the application of that question to the facts of this case should have been dealt with.

5.10 Finally, before turning to how the question posed should be answered, I should indicate that nothing in this judgment touches on the question of whether, even if it were to transpire that evidence was taken during a period when Mr. Roche was in unlawful custody, that evidence might nonetheless be admissible in the light of the principles identified by this Court in J.C. Such an issue was not raised at the trial and was not the subject of any argument before this Court on this appeal. I would leave to a case in which such an issue was fully argued any decision on the proper application of the J.C. principles to an unlawful custody situation such as might arise in a case where the Court was not satisfied that it had been established that proper consideration had been given to the question of whether a suspect could continue to be lawfully detained for investigative purposes. I turn finally to the question of law posed on this appeal.

6. The Question
6.1 I would, therefore, propose that the question be answered by indicating that, where the prosecution is required to establish the validity of the detention of an accused who was detained in a gárda station for investigative purposes, there is an obligation on the prosecution to establish that circumstances which might trigger a requirement to reconsider the validity of the detention of the relevant suspect had not occurred. While meeting that burden may most easily be done by leading appropriate evidence from the relevant member in charge it is open to a trial judge to be satisfied that the burden in question has been met on the basis of any sufficient admissible evidence.

6.2 For the reasons already identified, I am not satisfied that the first part of the question posed properly arises in this case at all. In that regard, I agree with Hardiman J. So far as the second part of the question is concerned, strictly speaking I agree that the question should be answered no. However, that answer is very much subject to the qualification set out in the previous paragraph of this judgment and the commentary leading to that qualification to be found in the judgment as a whole.