An Chúirt Uachtarach

The Supreme Court

Between

1. Following on a trial in the Tipperary Circuit Criminal Court before Judge Thomas Teehan and a jury, in November 2011, the respondent Colm Roche was acquitted on the two counts in an indictment alleging possession of cannabis resin contrary to s.3 of the Misuse of Drugs Act 1977, as amended, and possession for the purpose of supply contrary to s.15 of that Act. Colm Roche was presumed at his trial to be innocent and as that presumption of innocence has not been displaced, nothing herein is to be taken as in any way questioning that.

2. This is an appeal by the Director of Public Prosecutions pursuant to s.34 of the Criminal Procedure Act 1967, as substituted by s.21 of the Criminal Justice Act 2006. It is without prejudice to the acquittal of Colm Roche. That procedure allows the Circuit Criminal Court to state a question of law for the opinion of the Supreme Court. The result is without prejudice to the acquittal of the accused Colm Roche.

3. The question is as follows:

Where a person has been arrested and detained at a garda station for an initial period not exceeding 6 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 of the station relieving another member in charge (including the original detaining member in charge) considered whether –

(a) there were reasonable grounds for the original detention, or

(b) there are reasonable grounds for continuing that detention,

of itself render the continued detention of that person unlawful.

5. At the trial, on the defence indicating that there was a challenge to the admissibility of whatever may have been said by Colm Roche in garda custody, in the absence of the jury, the trial judge enquired as to what was the issue that he would have to try. He asked: “Is it the admissibility of evidence?” To which counsel for the defence replied: “I’m calling on the State to prove the arrest and the search and the detention and the memo.”

6. Counsel for the Director of Public Prosecutions then proceeded to call the arresting officer and the member in charge of Clonmel garda station who had authorised the detention of Colm Roche and his replacement. The custody record, which by regulation shortly to be referred to, requires the keeping of a note of the reason for arrest and detention of any prisoner in a garda station and a chronological note relating to checks on the proper treatment in accordance with law of the prisoner, was not produced in evidence on this issue to the trial judge. Nor was a general question asked as to whether the relevant regulations had been abided by in the treatment of the prisoner by all those who had dealings with him. As Hardiman J notes in his judgment, the custody record is kept as a document to be accessed at trials in order to resolve issues as to what may have occurred in custody. Had that record been produced during the course of the testimony by various gardaí, the trial judge would have had before him evidence as to what had happened and evidence as to what may have changed or whether the custody period was being properly used by the investigating gardaí. In the separate judgment of Clarke J the importance of adjudicating on the issues on the appeal in the light of the specific evidence available is emphasised as the primary factor. In that context, the absence of the custody record from the evidence meant that even on the appeal this Court could not have regard to it, despite a request that it be produced. In what follows, therefore, it appears that there was a gap in the evidence as opposed to any question of misconduct by any garda officer dealing with the detention of this prisoner. Perhaps inadvertence to the custody record was understandable in the light of the lack of specificity as to the challenge. Piecing together what happened from the pieces of evidence available to the trial judge without the custody record shows, however, that the concerns raised in the judgment of Clarke J as to inertia, and thus a possible failure to use the time that an arrested person spends in custody in accordance with the purpose of the statutory power, are not applicable to the facts in this case.

7. The car in question was stopped at 12:20 hours on the day in question. At 13:00 hours, the prisoner arrived at the garda station under arrest by Garda Helena Power and the member in charge was Garda Brendan O’Halloran. At 13:04 hours Garda O’Halloran told Colm Roche of his rights, including the right to consult a solicitor, and no legal assistance was sought. At 13:10 hours, the arresting officer explained to the member in charge that after searching the car they had found a bag containing suspected cannabis resin and that, after caution, the prisoner had admitted ownership. Garda O’Halloran granted detention for a period of up to six hours, pursuant to the relevant regulations. At 13:11 hours, a search of Colm Roche yielded “a small notch of hash”. At 13:12 hours, article 5 of the Criminal Justice Act, 1984 (Electronic Recording of Interview) Regulations, 1997 (S.I. No. 74 of 1997) was read to the prisoner. At 13:13 hours he was brought to the doctor’s room for the purposes of a further search. At 13:20 hours he was placed in a cell. At 13:52 hours, a garda superintendent gave permission for the prisoner to be fingerprinted and photographed. Garda O’Halloran’s evidence then continued “I informed the prisoner of the same and at 2pm I informed the member in charge that Colm Roche was detained pursuant to section 4 of the Criminal Justice Act … [and] that was the end of my dealings.” No questions were asked by the defence. Garda Helena Power gave evidence of arresting Colm Roche and of bringing him to the station. As to his detention she stated that Garda O’Halloran “entered all details into the custody record” and that she had a conversation with him outlining her “reasons for requiring him to be detained.” She stated that “drugs had been found in a rucksack in a car and that Colm Roche had claimed ownership of this rucksack and bag.” As a result of that conversation she said that “Garda O’Halloran then detained Colm Roche under section 4 of the Criminal Justice Act.” She was later one of the gardaí who interviewed Colm Roche.

8. At the time when Colm Roche was interviewed, Garda O’Halloran had gone off duty to be replaced as member in charge of Clonmel garda station by Garda John Downey. He gave evidence before the trial judge that he commenced duty at 14:00 hours as “station orderly and member in charge … in accordance with section 4 of the Criminal Justice Act 1984.” Having taken up duty, he said, “there was a prisoner in custody, namely Colm Roche of [address redacted] having been arrested earlier in the day by Garda Power for an alleged breach of section 15 of the Misuse of Drugs Act.” Whether in giving his testimony Garda Downey was reading from the custody record or not, it is clear that the details which followed must have come from that source. He testified to making “relevant entries in relation to” his dealings with the prisoner. These included that at 14:25 hours the prisoner “was taken by Sergeant Hennebry and detective Garda Quinlan to be photographed and fingerprinted.” He next noted that at 14:47 hours, “the prisoner was returned to cell No. 4.” He next noted that at 15:15 hours “the prisoner was taken to the interview room with detective Garda O’Gorman and Garda Power.” He stated that at 15:44 hours he “visited the prisoner in interview room and … no requests or complaints were made of me.” He recorded that at 16:05 hours the prisoner was returned to the cell and that Garda Power handed him “three video cassettes, one of which was sealed.” He then said that at 16:26 hours, “the prisoner was released from Garda custody, having no complaints.” He said that “Mr Roche signed the custody record to this effect.” That concluded the evidence on the issue of lawfulness of custody.

9. In closing submissions, counsel for the defence submitted that a member in charge must have reasonable grounds for believing that the continued detention of a person in custody is necessary for the proper investigation of the crime and that there was no evidence that Garda John Downey had ever applied his mind to that issue.

10. On that question, the trial judge ruled as follows:

With regard to the 2nd application in relation to the detention, Garda O’Halloran was the member in charge when Garda Power brought in 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 section 4 of the Act of 1984 had reasonable grounds for suspecting that his detention was reasonably necessary for that purpose. That detention took place at 10 past 1. Various other matters then followed and then at 2 o’clock he 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 continued detention of Mr Roche. I’m 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 section 3 of the 1984 Act because that section – section 7.3, I should say, section 7.3 gives a discretion to the Court to admit evidence notwithstanding a 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 then I must accede to the application in this request – in this regard, and I must rule that the continued detention of Mr Roche past 2 o’clock on the day was unlawful and I think it flows from that, I think, it [the statement in Garda custody] must be excluded.

The Criminal Justice Act 1984
12. The Criminal Justice Act 1984 effected two major reforms to the criminal justice investigation system. Prior to that legislation, where it was suspected that a felony had been committed, a garda could arrest the suspected perpetrator where there were reasonable grounds to support that suspicion. Felonies were not logically classified, so that the theft of a chocolate bar from a shop grounded this arrest power whereas a major fraud on a bank did not. The Act of 1984 made offences which could “under or by virtue of any enactment” be punished “by imprisonment for a term of five years or by a more severe penalty and to attempt to commit any such offence” the standard for arrest powers. Prior to the Act of 1984, persons arrested were regarded as being at the beginning of their imprisonment. Therefore, they had to be brought before a court as soon as was reasonably practicable. The time between arrest and the next proximate sitting of such a court could be used for questioning. That time was, however, variable and unregulated. It depended in part on when someone was arrested, on a Friday as opposed to a Monday morning, for example, and as to when a court might be sitting. Apart from judicial decisions as to the admissibility of confession statements, and apart from the Judges’ Rules, there was nothing to ensure that prisoners in custody were properly treated and questioned in such a way that a statement against interest might be publicly regarded as reliable. 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. Again for the first time, once there was a reasonable suspicion to ground an arrest, a person could be arrested for the purpose of questioning. The time limit was placed on that questioning of six hours but allowing for an extension pursuant to the direction of a Garda superintendent for a further six hours. Since section 9 of the Criminal Justice Act 2006 was introduced, the period may be extended by a chief superintendent for a further 12 hours; section 4(3). But, there are limits. Such limits also existed under the Offences against the State Act 1939, as amended, for arrest under section 30, but the application of that legislation to offences was as random as the categorisation of crimes as felonies and misdemeanours. Hence, maliciously damaging a window, as well as explosives or firearms offences, enabled detention under that legislation for a period of twenty four hours, capable of being extended to forty eight hours on the direction of a chief superintendent, but murder and rape did not.

13. Central to the protections set up by the Act of 1984, is the regulation of the custody of prisoners through subsidiary legislation. For the purposes of this appeal, the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 (S.I. No. 119/1987) applies. The principles upon which those Regulations are based are set out in the Act of 1984. As originally passed, the Act of 1984 did not allow for the suspension of detention for the purposes of the gardaí making “enquiries or investigations” but amendments were introduced by the Criminal Justice Act 2011 in that regard. These were not in force at the time of this arrest and detention and require no further mention.

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.”

15. This appeal has centred on the meaning of the duties cast on the member in charge by section 4(4) and section 4(5) of the Act of 1984 and these provide:

(4) If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for suspecting that he has committed an offence to which this section applies, he shall be released from custody forthwith unless his detention is authorised apart from this Act.

(5) if at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for believing that his detention is necessary for the proper investigation of the offence to which the detention relates, he shall, subject to subsection 5A, be released from custody forthwith unless he is charged or caused to be charged with an offence and is brought before a court as soon as may be in connection with such charge or his detention is authorised apart from this Act.

17. In The People (DPP) v Birney [2007] 1 IR 337, one of the issues before the Court of Criminal Appeal was delay in detaining a number of prisoners who had apparently been validly arrested on suspicion of the commission of the offence of membership of the self-styled Irish Republican Army. It was contended that this delay was contrary to law and rendered the subsequent detention of the prisoners unlawful. In the course of the judgment of the court, Hardiman J emphasised the importance of the member in charge of the garda station having an independent view as to the reasonableness of the suspicion for arresting the accused and of considering whether the detention of arrested persons was, on reasonable grounds, necessary for the further investigation of the offence. At paragraph 58, Hardiman J stated:

This court is of the view that it was clearly the intention of the Oireachtas that the member in charge of a garda station in circumstances where he is asked to detain a prisoner for the purpose of investigation of an offence pursuant to s. 4 should not merely be a rubber stamp. The role of the member in charge involves both a subjective and objective element and subjectively he must believe that the applicant’s detention is necessary and objectively must be satisfied that there are reasonable grounds for his belief. It is clear that the legislature, notwithstanding that s. 4 of the Act of 1984 has to be construed strictly, did intend that a reasonable period would have to be allowed to the member in charge to consider his decision following the arrival at the garda station of the arrested person and in the particular circumstances of this case this court is of the view that there was no departure from the intention of the legislature in the manner in which each of the applicants was dealt with and detained pursuant to s. 4 of the Act of 1984 and that each of the applicants was lawfully detained pursuant to s. 4.

19. One of the most important duties of the member in charge is to keep the custody record under Article 6 of the Regulations of 1987. This requires the recording “as soon as practicable” of such information as pertains to the person in custody. Under Article 7 it is required that record is to be kept of the “date, time and place of arrest and the identity of the arresting member”, of the “time of arrival at the station”, of the “nature of the offence or other matter in respect of which” the arrest took place and of “any relevant particulars relating to … physical or mental condition” of the prisoner. This is all written in the custody record. That form requires that the member in charge of authorising the detention should declare and sign a statement as to the particular prisoner declaring that the member in charge has “reasonable grounds for believing that the detention … is necessary for the proper investigation of the offence(s) in respect of which he/she has been arrested.” Any extension of detention for a further period has also to be particularised, recording the officer’s name and rank and that the officer had “reasonable grounds for believing that such further detention was necessary for the proper investigation of the offence concerned”. The regulations apply to all persons in custody and not simply to those arrested under the Act of 1984. Article 11 provides that an arrested person should have “reasonable access to a solicitor of his choice and be enabled to communicate with” that solicitor privately. The detained person is entitled to information “in ordinary language of the offence or other matter in respect of which” he or she has been arrested; Article 8. Such an arrested person is also entitled to “receive a visit from a relative, friend or other person with an interest” in his or her welfare provided that it would be capable of being properly supervised and not “hinder or delay the investigation of crime.” Article 12 provides that interviews are to be conducted “in a fair and humane manner.” As a matter of practice, the member in charge is to ensure that interviews do not last beyond the 4 hours as specified in Article 12 and, as the evidence before the trial judge indicates, periodic inspections are carried out. One such inspection was carried out in this case in compliance with the Regulations. Article 20 declares that persons in custody should not be subject to “ill-treatment of any kind or the threat of ill-treatment” and that there should be no threats to “the person himself, his family or any other person connected” with him or her. Article 24 provides for the preservation of custody records for “at least 12 months” or until the close of criminal or civil proceedings or the final determination of any complaint that might be made. Provisions as to information are contained in Articles 10 and 16. The proper conduct of personal searches is provided for in Article 17, including that the person to be searched “understands the reason for the search” and there is a duty on the garda conducting the search to pursue it with “due respect for the person being searched.” Provisions as to fingerprinting and photographing are contained in Article 18, and these were clearly followed on the basis of the evidence before the trial judge. The Regulations must be abided by, though a breach of the Regulations may be excused under some circumstances, as set out in s.7(3) and s.27(4) of the Act of 1984. There is no provision allowing for a breach of the Act to be excused. Any proposed exclusion of evidence should detention become unlawful would, as of the present time, be subject to an appropriate analysis in accordance with the decision of the Supreme Court in The People (DPP) v JC [2015] IESC 31.

Awareness
20. Certain aspects may be highlighted as to the awareness that is required of the member in charge of a garda station to which arrested prisoners are brought for the purpose of investigation under section 4 of the Act of 1984. Firstly, it is abundantly clear both under the terms of the legislation itself and on the authorities which have considered the matter, that the member in charge has a role in permitting the detention only of persons who are reasonably believed to be required to be detained for the proper investigation of the offence. Section 4(2) makes it clear that no detention should take place, even though a prisoner may have been arrested with reasonable cause in respect of the commission of an arrestable offence, unless on arrival at the station the member in charge is given reasonable grounds for believing that the detention is necessary. It is to be noted that the subsection confers that duty on “the member of the Garda Síochána in charge of the station to which the person is taken on arrest”. The requisite belief of the member in charge is to be formed “at the time of the person’s arrival at the station” or if the prisoner is actually arrested in the station, then at the time of “his or her arrest in the station”. That is a serious and solemn duty, which was clearly fulfilled on the basis of the evidence before the trial judge.

21. Secondly, there is a continuing supervisory duty over the detention which is exercised by the member in charge or any other member who replaces him as member in charge. That awareness concerns an ongoing obligation to ensure that a person is not continued to be detained in custody where the grounds for suspecting that the prisoner has committed an offence have dissipated. 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. That reasonable suspicion might be said to have finally dissipated with the ultimate verdict of the jury.

22. There is, thirdly, an obligation on the member in charge to ensure that there is no breach of the Custody Regulations. Nothing was adverted to either on the state of evidence as presented by the prosecution and there was nothing by way of testimony called by the defence, which would show that there had been any breach of the Regulations. A trivial breach, such as the recording of a routine matter might be excused, where however, there is a serious breach related to the human rights of the suspect, that could well be subject to a different analysis. Therefore, in that regard, it should be noted that nothing happened whereby the detention was rendered unlawful.

23. The condition, fourthly, for the release of a prisoner where there is no longer any “reasonable grounds for believing that his detention is necessary for the proper investigation of the offence to which the detention relates” is cast in section 4(5) in conditional terms. There must be a release but only, as the subsection indicates, “If at any time during the detention of a person pursuant to this section” the reasonable grounds which underpinned the necessity for the detention of the prisoner for the purpose of the ongoing investigation are removed. On the state of the evidence before the trial judge, that did not happen. The obligation cast in the section is clearly conditional upon the removal of the grounds upon which it became necessary to detain the prisoner for the proper investigation of the offence.

24. Colm Roche was properly detained upon his arrival in Clonmel garda station by Garda Brendan O’Halloran because there were objective circumstances which allowed him, as member in charge, to believe that his detention was necessary for the proper investigation of the offence. That decision was the justification for the legality of the detention of Colm Roche. It is correct that the initial period of 6 hours, as set out in section 4(3) of the Act of 1984, is not a minimum period for which a person may be detained unless a superintendent or a chief superintendent authorises detention beyond that maximum or any subsequent maximum period. Detention, instead, may be up to 6 hours. Nor, on the state of the evidence before the trial judge, did the gardaí in Clonmel approach the section under any erroneous state of mind. Once an interview had concluded, the process of releasing Colm Roche from detention was initiated about three hours and twenty minutes after his detention had been initially authorised. In the meanwhile, every significant event had been noted by the replacement member in charge, Garda Downey, in the custody record.

25. Essentially, the question of law raised in this case concerns the fact that no evidence was given that the member in charge of the station relieving another member in charge, including the original detaining member in charge, considered whether there were reasonable grounds for the original detention. On the evidence before the trial judge, there was an absence of testimony that Garda Downey had applied his mind as to whether or not there were reasonable grounds for the original detention. It is difficult to see any basis upon which Garda Downey, having regard to the provisions of the Act of 1984, could have any role in considering whether the decision of Garda O’Halloran to detain Colm. Roche was correct or not. If there were reasonable grounds for the detention of Colm Roche when he was brought to the Garda station and when Garda O’Halloran made the decision to detain, there could be no basis for Garda Downey to re-consider that decision. That decision, on the evidence, had been made in a responsible way by Garda O’Halloran and it was arrived at in the manner in which he was required to do it on the arrival of the prisoner at the station. In the absence of such evidence, the prosecution would have failed to prove that the initial detention was lawful.

26. A second limb of the question posed for the opinion of the Supreme Court concerns whether the fact that no evidence was given that the member in charge of the station relieving another member in charge, in this case the original detaining member in charge, considered whether there are reasonable grounds for continuing that detention, of itself render the continued detention of that person unlawful. It is best to return to what the learned trial judge in the course of his ruling on the matter observed:

Various other matters then followed and then at two o’clock he was relieved by Garda Downey. Garda Downey gave evidence of having relieved Garda O’Halloran and of the various matters that took place during that time that he was relieving his colleague. He did not say anything about satisfying himself of the reasonableness of the continued detention of Mr. Roche. I am quite certain that if you 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.

28. Furthermore, the decision to detain the prisoner had, on the evidence, been made in a responsible way by Garda O’Halloran, in the manner in which he was required to do so, on the arrival of the prisoner at the station. To amount to a failure by the prosecution to prove that the detention was lawful, either that evidence had to be absent, which it was not, or there had to be some piece of evidence which on the prosecution case, the defence having not called any evidence, a situation had occurred whereby either: (a) the reasonable grounds justifying the arrest of Colm Roche had disappeared entirely or had become so weakened as to cease to be a basis for reasonable suspicion at all; or (b) some development had to have occurred whereby there were no longer “reasonable grounds for believing that his detention [was] necessary for the proper investigation of the offence to which the detention relat[ed]”.

29. The reality of this case is that no event occurred prior to the release of Colm Roche from custody which would have rendered his detention unlawful. There was nothing on the basis of the prosecution evidence in chief, and there was nothing brought out by cross examination by counsel for the defence, which demonstrated an absence of reasonable suspicion against Colm Roche in respect of the offence for which he had been arrested. Further, there was nothing in the prosecution evidence in chief, and there was nothing brought out by cross examination by counsel for the defence, which demonstrated any change in circumstances, whereby the decision carefully arrived at by Garda O’Halloran would have given Garda Downey any grounds for ordering the release of the prisoner on the basis that there were no longer any reasons for Colm Roche’s continued detention for the proper investigation of the offence. In short, the overall state of the evidence should have been looked at by the trial judge and not just one aspect of the relevant testimony.

In summary
30. In summary, therefore, Colm Roche was, on the evidence before the trial judge, properly arrested on the basis of a suspicion that he had committed an offence under s.15 of the Misuse of Drugs Act 1977, as amended. That suspicion did not, at any stage during the time when he was in garda custody for the purposes of the investigation of the offence, either dissipate or weaken. On arrival in Clonmel garda station, it was the duty of Garda O’Halloran, as the member in charge, to make enquiries of the arresting officer and to only authorise the detention there of Colm Roche where he subjectively believed, and where there was objective grounds to suggest, that the detention of the prisoner was necessary for the proper investigation of the offence for which he was arrested.

31. While there is an ongoing duty cast on the member in charge, and on the Garda replacing him as member in charge, to ensure that the Custody Regulations are complied with, there is nothing on the evidence in this case to suggest that this duty was cast aside or ignored. The evidence is quite to the contrary. While there is an ongoing duty to ensure that where the detention of an arrested person is no longer necessary for the proper investigation of the offence, that they should be released, there is not the slightest evidence before the trial judge that any such event occurred. The duty to order release either because the grounds for arrest have dissipated, or because there are no longer reasonable grounds for believing that the detention of the prisoner is necessary for the proper investigation of the offence, are entirely predicated upon the condition of an event happening which triggers either section. Hence, both s.4(4) and s.4(5) of the Act of 1984, begin with the words: “If at any time during the detention of a person pursuant to this section there are no longer …”

32. The trial judge concentrated on one aspect of s.4, as to the absence of evidence, but did not consider the conditional nature of the requirement for release. That condition in the legislation is entirely explicable and it logically flows from the scheme of detention whereby there should be an initial enquiry on “arrival at the station” and whereby detention should only be authorised on reasonable grounds but, once that is done, it requires the occurrence of a further event, whereby the failure to release renders unlawful the continued detention of a prisoner because of something happening. That could be new information. But, no such thing occurred. Therefore, the ruling by the trial judge was erroneous.

Questions
33. Both questions should therefore be answered in the negative. Whereas failure to give evidence that the member in charge of the station relieving another member in charge considered whether there were reasonable grounds for the original detention, or whether there were reasonable grounds for continuing that detention, was correctly highlighted by the defence, that, of itself, is not enough to render the continued detention of that person unlawful unless there is, on the evidence, an occurrence which requires the release of the prisoner already properly held from that detention.