Denham C.J.
Hardiman J.
Clarke J.
Dunne J.
Charleton J.

Between/

Judgment of Mr. Justice Hardiman delivered the 23rd day of July, 2015.

1. This is the Director’s appeal pursuant to s.34 of the Criminal Procedure Act 1967 against the acquittal of Colm Roche at his trial before the Tipperary Circuit Criminal Court (His Honour Judge Thomas Teehan and a jury) in November, 2001. The respondent, Mr. Colm Roche, was acquitted on the only two counts of an indictment preferred against him. They alleged possession of cannabis resin contrary to s.3 of the Misuse of Drugs Act 1977, as amended and possession of cannabis for purposes of supply contrary to s.15 of the same Act.

2. This appeal is without prejudice to the acquittal of Mr. Roche.

3. I wish to make two points before entering into the substance of the case. The first is the question of law which comes before the Court was drafted by the prosecution with no input from the defence. This is in accordance with the statute. The question posed is this:

“Where a person has been arrested and detained at a garda station for an initial period not exceeding six hours, pursuant to the provisions of s.4(2) of the Criminal Justice Act 1984, does the fact that no evidence was given that the member-in-charge in the station relieving another member-in-charge… considered whether

(a) There were reasonable grounds for the original detention,

or

(b) There were reasonable grounds for continuing that detention, of itself render the continued detention of that person unlawful.

Despite the way in which this question is phrased, it appears from an examination of the transcript that no issue was at any time raised by the defence as to the legality of Mr. Roche’s original detention once prima facie evidence of it was given. A Garda Brendan O’Halloran, who was the Member-in-Charge at Clonmel Garda Station at 1pm on the 24th December, 2007 gave evidence that he authorised the detention of Mr. Roche, at the request of a Garda Power, at 1.10pm on that day. This was not challenged by the defence. Nor was it ever suggested that the reasonableness of Garda O’Halloran’s initial decision, made at 1.10pm, could be at all affected by what the Member who relieved him as Member-in-Charge at 2pm did or failed to do.

4. It is unfortunate and misleading that the question was phrased in that way. It tends to give the impression that the case raises a point of general application, so that the validity of every detention under s.4 of the 1984 Act might be invalidated by what a new Member-in-Charge of the Garda Station did or failed to do. This is simply not so. The question as phrased might suggest that the case could “open the floodgates”. In reality there is no prospect of this and I do not know why the question was phrased in such a way as to suggest that there was.

5. The second preliminary point I wish to make relates to the summary of the relevant Sections of the Criminal Justice Act 1984 contained in the judgment of Mr. Justice Charleton in this case. Everything Mr. Justice Charleton says in this regard is perfectly true but I am afraid that, if taken literally, the material might create a false impression, in particular a false impression of how the Act operates in practice.

6. The novel feature of the Act of 1984 is that, for the first time outside the context of Offences against the State, it provided that a person suspected of a wide variety of offences could be detained, not for the purpose of being brought before a court as had previously been the case, but for the purpose of questioning. Moreover, it provided that this detention could take place on the authority of a garda known as the “Member-in-Charge”. It is perfectly true, as Mr. Justice Charleton says at para. 14:

“Section 4(2) of the Act of 1984 provides that an arrested person ‘may be taken to and detained in a Garda Síochána station’. Detention for the period established in the legislation may be allowed only ‘if the member of the Garda Síochána in charge of the station to which the person is taken on arrest has at the time of the person’s arrival at the station reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence’.”

7. However, the statement that a person may be detained “only” in the circumstances mentioned is somewhat qualified by the mundane fact that I am unaware of any case in the more than thirty years for which the Section has been operated in which a Member of the Garda Síochána in charge of the station has refused the application of another member of An Garda Síochána to detain a person. My own experience at the Bar and on the Bench does not extend to such a case, and I have never heard of one. In the case of DPP v. Birney [2007] 1 I.R. 377 some difficulty was posed, in the view of some gardaí, by the fact that a Member-in-Charge meticulously processed a number of arrested persons individually. That is the only occasion of which I have been aware of the actions of a Member-in-Charge conflicting with the views of other gardaí. But even in that case, as the Court of Criminal Appeal found, there was no refusal to detain a person. I therefore feel that the precisely correct statements of Mr. Justice Charleton as to the content of the statute have to be read in light of the fact that there is no known instance of a Member-in-Charge of a garda station refusing to detain a citizen when another garda requests it.

8. Secondly, it is perfectly true, as Mr. Justice Charleton says that:

“The Act of 1984 made provision for the first time for statutory regulations to be enacted for the protection of members of An Garda Síochána against unwarranted allegations of brutality, oppression, and for the establishment of a Code of Conduct as to how prisoners should be correctly and humanely treated.”

This is perfectly true, but I do not believe it was the principal purpose of the statute, which was to provide for detention for questioning. Moreover, while regulations for the protection of persons in custody, and for their correct and humane treatment are certainly provided for in the Act, the Act also provides:

“7(1) The Minister shall make regulations providing for the treatment of persons in custody in Garda Síochána stations.

(2) The regulations shall include provision for the assignment of An Garda Síochána in charge of a garda síochána station, or to some other member, of responsibility for overseeing the application of the regulations at that station, without prejudice or the responsibilities and duties of any other member of the Garda Síochána.

(3) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement by him”.

(Emphasis added)

Thus, while it is perfectly true to say that the Act mandates the making of regulations for the protection of persons in custody, those regulations are absolutely extraordinary delegated legislation creating obligations for the breach of which there is no civil or criminal remedy or penalty and expressly providing for the admissibility in evidence of material obtained in breach of regulations, or in the context of a breach of regulations at a Court’s discretion. This is toothless legislation. It must be very clear that if legislation or delegated legislation which creates or defines criminal offences (as in the case in much of the drugs legislation) contained similar immunities for breach of the law or regulations, they would be absolutely unenforceable. This is the position in the case of the 1987 Regulations, relating to the Treatment of Persons in Custody.

This is an area of high constitutional significance. Article 40.4.1 provides that:

“No citizen shall be deprived of his personal liberty save in accordance with law”.

When Mr. Roche was arrested at 12.20pm on Christmas Eve, 2007, he was thereby immediately deprived of his personal liberty. This deprivation would be unconstitutional unless it was, and continued to be, “in accordance with law”.

Moreover, by Article 40.3.1:

“The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.

These rights, in the case of Mr. Roche, extend to his right to liberty. By statutory arrangement, and statutory instrument made under the 1984 Act the responsibility of overseeing the detention of Mr. Roche and of ensuring that it was in accordance with the law was delegated to Garda Downey. His very brief account of his discharge of this onerous stewardship will be given below.

As will be seen in the summary of arguments below, the learned trial judge was invited to exercise the discretion which (the prosecution said) was conferred on him by s.7(3) of the Act which is set out above. The exercise of a similar discretion has been considered, somewhat controversially, in this Court in the recent case of DPP v. J.C. (No. 1).

In the judgment of Clarke J. at para. 4.23 he says:

“These matters are addressed in the judgment of Hardiman J. Likewise, I acknowledge that there may well have been a tendency, in cases of illegally, as opposed to unconstitutionally, obtained evidence, for courts to tend to exercise their adjudicative role in favour of the admission of such evidence.”

With great respect there was a great deal more than a “tendency” to exercise the discretion in that way. As mentioned in my judgment in that case I am aware of only one instance where the discretion was exercised in favour of exclusion, and that was, by coincidence, a case where all of the defendants, the parties arguing for exclusion, were all themselves members of the gardaí.

This, however, is a case where a discretion was in fact exercised in favour of an ordinary citizen and the evidence thus excluded. I would be more than sorry to see this exercise of discretion overruled in a case shortly following that of J.C. I do not consider that this Court has power to interfere with an exercise of judicial discretion of this sort, on the evidence which was heard by His Honour Judge Teehan.

9. What happened in this case emerges clearly from the transcript of the hearing of the 3rd November, 2011. Defending counsel, Mr. O’Shea informed the judge that “I’m going to put the State on proof of certain matters” (p.5). These included the detention of the accused under the 1984 Act. During this detention certain admissions were allegedly made. Accordingly, the admissibility of these alleged verbal admissions was in issue.

The prosecutor intimated that “I am going to need some time then to..”.

At p.8 Mr. O’Shea called on the State “to prove the arrest and the search and the detention and the memo”.

10. On foot of that requirement various garda witnesses were called, gave evidence and were cross-examined in certain instances. As noted above the original detaining Member-in-Charge, Garda O’Halloran was not challenged on the evidence he gave about the decision to detain (pp 39/40).

11. A Garda John Downey then gave evidence and said that he commenced duty as Member-in-Charge of the Garda Station on the 24th December, 2007 at 2pm. He said:

“I took up duty as Station Orderly and Member-in-Charge at Clonmel Garda Station. This is in accordance with s.4 of the Criminal Justice Act 1984.” (p.41)

He continued:

“on the commencement of duty, relieving Garda Brendan O’Halloran, there was a prisoner in custody, namely Colm Roche of [address] having been arrested earlier that day by Garda Power for an alleged breech of s.15 of the Misuse of Drugs Act… I made relevant entries in relation to my dealings with Mr. Roche. And those dealings were at 2.25pm. The prisoner was taken by Sergeant Hennebry and Detective Garda Quinlan to be photographed and fingerprinted… at 2.47pm the prisoner was returned to cell no.4… at 3.15pm the prisoner was taken to the Interview Room with Detective Garda O’Gorman and Garda Power… at 3.34pm I visited the prisoner in Interview Room and made no requests or complaints were made of me (sic). At 4.05pm the prisoner was returned to the cell. Garda Power handed me three video cassettes one of which was sealed, and at 4.26pm the prisoner was released from garda custody, having no complaints. Mr. Roche signed the custody record to this effect.”

12. There was no cross-examination of this garda.

13. In that state of the evidence Mr. O’Shea cited Professor Dermot Walsh’s book on Criminal Procedure (p.45/46) and particularly the proposition:

“And a Member-in-Charge at the station must have reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the crime.”

Mr. O’Shea submitted, on that basis “that there is a requirement of ongoing appraisal [by] the Member-in-Charge and ongoing enquiry by the Member-in-Charge and the Section itself sets out that… if there are no grounds in detaining him further he must be released forthwith. He referred to s.4(4) of the Act.

14. It should be noted that Garda Downey not only gave no evidence other than that summarised above, but did not produce or prove the custody record relating to Mr. Roche.

15. Prosecuting counsel, Mr. Cody said:

“I’m not aware of any authority in which a Member-in-Charge taking up duty from the admitting Member-in-Charge is required to make the inquiries that Mr. O’Shea suggests.”

Mr. Cody then referred to the evidence of Garda Downey to the effect that he was informed by Garda O’Halloran that there was a prisoner in custody, and for what. He continued:

“So even if, and I suggest there is isn’t any requirement on the Member-in-Charge to engage in this exercise… in any event he has received information, Judge, which enables him to take up duty and continue with the detention of Mr. Roche under the Section.”

He then proceeded to rely on s.7 subsection 3, of the Act which has been set out above, and which, State counsel submitted, created a discretion to admit the evidence despite any shortcomings in the treatment of a prisoner.

16. In his judgment, the learned trial judge rejected the challenge to the original arrest and search which led to Mr. Roche being brought to the Garda Station. He continued (p.54):

“With regard to the second application in relation to the detention, Garda O’Halloran was the Member-in-Charge when Garda Power brought the prisoner, Mr. Roche, to the station and it seems to me that the proper procedures were followed as between them and it seems to me also that Garda O’Halloran as the Member-in-Charge in deciding to detain Mr. Roche under s.4 of the Act of 1984 had reasonable grounds for suspecting that his detention was reasonably necessary for that purpose.”

17. Accordingly, it can be seen that the learned trial judge also rejected the challenge to the decision to detain Mr. Roche when he was brought to the Garda Station. He then continued:

“Various other matters then followed and at 2 o’clock he [Garda O’Halloran] was relieved by Garda Downey. Garda Downey gave evidence of having relieved Garda O’Halloran and of the various matters that took place during the time that he was relieving his colleague he did not say anything about satisfying himself of the reasonableness of the continuing detention of Mr. Roche. I am quite certain that if he had even a relatively short conversation with his colleague that he would have satisfied himself because as I said, there were certainly in this case reasonable grounds for directing the detention of the prisoner. But he did not do so. It seems to me that this is not a situation which is covered by s.7(3) of the 1984 Act. Section 7(3) gives a discretion to the Court to admit evidence notwithstanding breach of regulations made under the Section. Now, but this… what is complained of here by the defence is not a breach of regulations but a breach of the actual Section and a criminal provision has to be construed strictly and with considerable hesitation I must accede to the application in this regard and I must rule that the continued detention passed 2 o’clock on the day was unlawful and I think it flows from that… it must be excluded.” (sic)

18. The office of “Member-in-Charge” is defined by the Regulations referred to above:

“4(1) In these Regulations ‘Member-in-Charge’ means the member who is in charge of a station at a time when the Member-in-Charge of a station is required to do anything or cause anything to be done pursuant to these Regulations.”

19. In this case, Garda Downey gave unchallenged evidence to the effect that he was the Member-in-Charge from 2pm on the 24th December, 2007 and that he took over from Garda O’Halloran who had previously acted in that capacity.

20. By Regulation 5(1):

“The Member-in-Charge will be responsible for overseeing the application of these Regulations in relation to persons in custody in the station and for that purpose shall visit them from time to time and make any necessary enquiries.”

It may be important to note that by Regulation 3(2):

“There shall be no unnecessary delay in dealing with persons in custody.”

This provision is absolutely essential to any constitutional provision for detention for questioning. Such a provision is an interference with the right of liberty which of course is a constitutional and not merely a legal right. Where a statute such as the 1984 Act permits detention other than for the purpose of trial or judicially imposed imprisonment, the procedural safeguards pertaining to detainees alone give practical effect and protection to the constitutional right to liberty. See Article 40.4.1 of the Constitution. If a person could be detained for questioning and then simply left for an indefinite period in the intimidating and often unsanitary circumstances of a cell in a garda station, the right to liberty would be set at nought. Therefore it is essential that the Regulations provide, as they do, that “there shall be no unnecessary delay in dealing with persons in custody”.

21. In this particular case it is to be noted that the respondent, Mr. Roche, having been arrested at 12.20pm, and detained in a garda station since 1.10pm was not questioned until 3.15pm. One would not like to think that this was for some trivial reason, such as to allow members of An Garda Síochána to have their lunch while the respondent cooled his heels in a cell for most of the time. But one will never know whether this is so or not because, on the evidence, the member of the Garda Síochána in charge of the station made no enquiry at all about Mr. Roche’s detention or why he was left for two hours and fifty-five minutes from his arrest before being questioned. We will never know this because the member of the Garda Síochána in charge of the station from 2 o’clock on Christmas Eve, 2007, never addressed his mind to it, as far as the evidence goes.

22. It must be borne in mind that these Regulations are made under statutory authority, s.7 of the 1994 Act. This requires the Minister to make Regulations “providing for the treatment of persons in custody in Garda Síochána stations and assigning to some member of An Garda Síochána “responsibility for overseeing the application of the Regulations…”.

23. In my view, that being so, there is an obligation on the State to prove compliance with the statutory duty and specifically to establish that there was no unnecessary delay. In my view this is not merely a regulatory matter but a matter of statutory and indeed constitutional significance.

24. If Garda Downey had turned his mind to the question of the necessity for the continued detention of Mr. Roche, it might have been quite easily established that such detention was necessary. As the learned trial judge said, a short conversation might have been all that was required. But on the state of the evidence in this case Garda Downey did not turn his mind at all to the question of whether there was unnecessary delay, or whether the detention continued to be warranted.

In my view, the prosecution is required to prove that the Member-in-Charge of the Garda Station turned his attention to these matters. In DPP v. Conroy [1986] I.R. 460 the question of whether a prisoner was in lawful detention when something of evidential significant transpired was simply not ruled upon by the trial judge. Finlay C.J. said at p. 474:

“It would appear from the transcript that the learned trial judge did not rule on this question, largely on the basis that upon enquiring as to what the issue of fact which counsel on behalf of the accused was seeking to have put before the jury was, he was informed that the accused would if he gave evidence, swear that he was under the impression that he could not leave the garda station after he had been there for a while. The judge appeared to rule that this was not evidence of fact, it would be of no value and, eventually, ruled that there was not evidence to show that there was an issue of fact for determination of the type which was dealt with in the Lynch case [1982] 1 I.R. 64. It would appear to me that upon an issue being raised by counsel on behalf of the accused as to whether his client was at, and prior to, the time of making a confession, in custody. The onus of proof is on the State to establish either that his custody was legal or that he was not in custody and that the judge should ordinarily permit evidence to be adduced on the issue.”

(Emphasis added)

Mr. Justice Griffin and Mr. Justice Hederman agreed with the judgment of the Chief Justice in Conroy.

25. It appears to me from dicta in the Article 26 reference In Re The Emergency Powers Bill [1977] I.R. 159 and in DPP (Lenihan) v. McGuire [1996] 3 I.R. 586 the 1987 Custody Regulations are designed to provide a procedural safeguard to what is of its nature a constitutional right. Therefore, where the Constitution can be invoked regarding deprivation of liberty in the form of a detention which does not observe the statutory procedural safeguards, it appears to me that the legality of the detention itself is called into question.

26. The Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (SI No. 119 of 1987) are designed to provide a procedural safeguard to what is a constitutional right, the right to liberty. If the Regulations were not seen in this light then there would be no attempt to discharge the State’s obligation under Article 40.3.1 to vindicate the right of Mr. Roche to liberty. Therefore, the Constitution can be invoked regarding deprivation of liberty in the context of the non-observance, or non-demonstrated observance of an obligation protective of Mr. Roche’s constitutional rights; and any evidence obtained in such circumstances is a breach of his constitutional right and not merely a question of illegality.

As to the position of the Regulations themselves, and of the Member-in-Charge, I wish to quote from the judgment of Kelly J. in DPP (Lenihan) v. Maguire) [1996] 3 I.R. 586 at 593:

“The Criminal Justice Act 1984 is an important enactment dealing, inter alia, with the safeguarding of rights of persons who are in the custody of the garda. Section 7 of the Act of 1984 creates a mandatory obligation on the Minister to make Regulations providing for the treatment of persons in custody in garda stations. The second subsection of that Section requires that the Regulations include a provision for the assignment to the Member of the Garda Síochána in charge of a garda station… of responsibility for overseeing the application of the Regulations made at that station. This is an important responsibility placed on the shoulders of such a person.”

I agree with this. It is in my view part of the proofs of a prosecution which relies in whole or in part on evidential material developed during the period when a person is deprived of his liberty to demonstrate such deprivation was lawful and was in accordance with the Regulations laid down for the treatment of people who have been deprived of their liberty for investigative purposes. If this is not done then the prosecution are at risk of having the evidential material excluded in the exercise of the learned trial judge’s discretion. This is not a thing that often happens, but it happened in this case.

27. It appears to me to be well established from the Statute and Regulations that the Member-in-Charge of the Garda Station is the person designated, under statutory authority for “overseeing the application of the [Treatment of Persons in Custody] Regulations at that station”. This is a role independent of the criminal investigation which leads to the person being in custody.

28. This is obviously an important role. A person in custody is unable to look after his own interests by reason of the very fact of the custody. Apart from that, the unfamiliarity of the surroundings, the intimidating and, as I have said, often unsanitary conditions of a cell in a garda station, may heighten a suspect’s needs for assistance in the validation of his rights.

29. It appears to me that the main statutory features of the detention which require supervision are firstly the requirement that there be no unnecessary delay, that is that a person who is deprived of his liberty and, quite literally, locked up, without having been convicted of any offence and without an immediate intention of bringing him to court, should be held in that way for the shortest time possible. Secondly, the question of whether there is a continuing necessity for his detention must be present to the mind of the Member-in-Charge who must make the necessary enquiries about it. Here there is no evidence that he turned his mind to either of these questions.

30. I am unable to concur in the approach of Mr. Justice Charleton expressed, for example, in para. 21:

“There is nothing to suggest on the evidence in this case that there did not remain reason to continue to suspect, and on reasonable grounds, that Colm Roche had committed the offence for which he was charged.”

In my view, this approach, expressed by two negatives (“Nothing to suggest… that there did not remain”) does not adequately reflect the fact that on a voir dire of this sort “the onus of proof is on the prosecution to establish that his custody was legal”, as Chief Justice Finlay put it in Conroy, cited above. We have not been asked to depart from the authority of that case. This omission is a significant aspect of the present case.

31. The formulation used in the judgment of Mr. Justice Charleton, which I have discussed in the previous paragraph, is consistent only with a view either that the onus of proof is on the defence to establish that something occurred which required the Member-in-Charge’s attention or, alternatively, no onus arose until such time as something developed, the proof of which did not lie on the State. This is equivalent to saying that there is some form of evidential burden on the defendant. I do not accept that this is so, on the authority of Conroy.

Moreover, the view that it is sufficient for the State to succeed that there be “nothing to suggest on the evidence that there did not remain reason to continue to suspect” is in my view inconsistent with the recent decision in J.C. (No. 1), cited above. There, at para. 5.1 of his judgment, Mr. Justice Clarke said:

“In any criminal trial the onus rests on the prosecution to prove guilt. It seems to me that, as part of that overall approach, the onus rests on the prosecution to establish the admissibility of any evidence in respect of whose admissibility a legitimate question is raised. The first part of any proper test must, therefore, state that:

‘The onus rests on the prosecution to establish the admissibility of all evidence’.”

32. Mr. Justice Clarke continued, at para. 5.4 of his judgment:

“As part of that obligation it seems to follow that the onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places two separate obligations on the prosecution. The first is to put forward whatever argument or basis it is suggested nonetheless justifies the admission of the relevant evidence. Second, and of equal importance, there must rest on the prosecution an onus to establish any facts necessary to justify such basis. while that obligation stems principally from the general obligation which lies on the prosecution, it also seems to me to be strengthened by the fact that the accused will, in the vast majority of cases, have little or no knowledge of the circumstances which led to evidence being obtained in circumstances of unconstitutionality”.

33. This passage, indeed, addressed the basis of my inability to concur in the judgment of Charleton J. I believe that where evidence is developed in circumstances where the defendant is deprived of his liberty, such evidence is admissible only if such deprivation is in accordance with law and with the constitutional rights of the detained person, which continue to subsist except in relation to his immediate entitlement to liberty. It appears to me that in this case, as far as the evidence goes, the Member-in-Charge of the garda station unto whom such significant responsibility is discharged did nothing in particular to ascertain the continuing need for the detention. Moreover, in the context of a detention for a maximum period of six hours he permitted (and may or may not have observed) that two hours and fifty-five minutes elapsed before the prisoner began to be interviewed in custody. I am far from saying that there may not have been good reason for this, but no such reason was adduced in evidence. Nor was the Custody Record produced in evidence. This is a document required to be kept under statutory authority and I can think of no good reason for its non-production.

34. Finally, it must be remembered that the learned trial judge, in the context outlined above exercised a judicial discretion to exclude the evidence. I am not aware of any basis on which this discretion can properly be reviewed by this Court which, unlike the learned trial judge, did not have the advantage of seeing and hearing the witnesses.

35. I would dismiss the appeal.