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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. (McTiernan) v. Bradley [1999] IEHC 54; [2000] 1 IR 420 (9th December, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/54.html Cite as: [2000] 1 IR 420, [1999] IEHC 54

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D.P.P. (McTiernan) v. Bradley [1999] IEHC 54; [2000] 1 IR 420 (9th December, 1999)

IN THE MATTER OF SECTION 52(1) OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961 (No. 39 OF 1961)

BETWEEN

JUDGMENT of Mr. Justice McGuinness delivered the 9th day of December 1999.

This is a Consultative Case Stated pursuant to Section 52(1) of the Courts (Supplemental Provisions) Act, 1961 by Judge Desmond Hogan of the District Court. The learned Judge sets out the facts of the case as follows:-

"1. At the sitting of the Dublin Metropolitan District Court held at Court No. 46 the Bridewell, Chancery Lane, in the City of Dublin on the 19th December 1997, the Accused herein appeared before me on Finglas Charge Sheet 95 of 1997 which said Charge Sheet alleged that the Accused on the 23rd day of October 1997 assaulted one,Garda Des McTiernan (the Prosecutor herein) contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997.

2. At the said hearing the Accused was represented by Catherine Staines, Solicitor in the office of Michael J. Staines and Company Solicitors. Garda Des McTiernan, the Prosecutor on that date, represented himself. Garda Des McTiernan was the only witness called by the Prosecution at the trial of the alleged offence.

3. Garda McTiernan gave evidence that as a result of a call he received while on mobile patrol at approximately 12.30 a.m. on the 23rd October 1997 in the Finglas West area he went to Cappagh Road. He said that he saw the Accused at the gateway to No. 370 Cappagh Road.Garda McTiernan stated that he made an effort to speak to the Accused about complaints of noise that had been made. The garda then stated that the Accused became very abusive and eventually threatened Garda McTiernan with a cavity block. Garda McTiernan said that fearing for his own safety and those with him he left the situation as it was. Garda McTiernan also gave evidence that he came back to 370 Cappagh Road a short time later on the same night with garda assistance. The Accused was still very abusive and Garda McTiernan again withdrew. Garda McTiernan said that on the 29th October 1997 he arrested the Accused for the offence of assault contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997. The Accused was then charged and brought before the District Court.

4. At the conclusion of the prosecution case, Catherine Staines, Solicitor for the Accused, submitted that there was no power of arrest for an offence contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997. Catherine Staines further submitted that as the arrest was unlawful there had been an infringement of her client's constitutional rights and that the Court should protect such rights. The prosecution submitted that the Criminal Law Act, 1997 granted a general power of arrest. It was argued by Ms Staines on behalf of the Accused that Section 4 of the Criminal Law Act, 1997 only permitted arrest without warrant for an offence for which a person may be punished by imprisonment for a term of 5 years or more. Section 2(1)(b) does not carry such a penalty. I then directed that the case be put back for further legal submissions.

5. The case came before me for further legal argument on the 23rd day of January 1998 and the 24th day of February 1998. At that time the Director of Public Prosecutions was represented by Mr. Mulholland, Solicitor. The Defendant was represented by Ms Bambury. The prosecution accepted the argument made by Ms Bambury that the provisions of the Criminal Law Act, 1997 did not grant power of arrest for an offence under Section 2 of the Non Fatal Offences Against the Person Act, 1997. Mr. Mulholland for the Prosecutor then submitted that the question of whether there was a lawful arrest was immaterial to the hearing before me. The prosecution relied upon the decision of the Supreme Court inThe Director of Public Prosecutions v. Michael Delaney (O'Flaherty J. nem diss) 27th November 1997. It was submitted that the said case was authority for the proposition that unless the validity of the arrest is an essential ingredient in proving the charges brought, then the nature of the arrest is irrelevant to what the District Judge must decide. In reply, Ms Bambury for the Accused said the District Judge had an obligation under the Constitution to vindicate the constitutional rights of an accused person and that the accused person had to appear before the Court in accordance withdue process of law. Ms Bambury relied upon the High Court decision of Mrs Justice Denham in the case of Coughlan v. Patwell [1992] ILRM 808. It was submitted that the latter case was authority for the proposition that where an accused person alleges that his constitutional rights have been infringed in procedures adopted in bringing him before the District Court, then the District Judge is obliged to hear the Accused's allegations and submissions and take such steps as are considered appropriate. The Accused first appeared before the Court on 29th October, 1997.

6. I stated that I was of the view that what was stated in the Delaney case was obiter (an observation with which Mr. Mulholland disagreed). I noted that in the case of The DPP v. Delaney, above cited, the case of Coughlan v. Patwell, above cited, did not appear to be considered by the Supreme Court. I was of the view that although the Supreme Court decision was the binding decision, a difficulty arose in its interpretation and application insofar as the decision in Coughlan v. Patwell did not appear to have been considered by the learned Supreme Court. I had a difficulty in resolving how to exercise my constitutional duties as outlined by Mrs Justice Denham in Coughlan v. Patwell with the decision of the Supreme Court in the DPP v. Delaney. In those circumstances I consider that the opinion of the High Court should be sought for the purpose of resolving those divergent authorities".

The learned Judge then submits the following question to this Court:-

"Where it is alleged that the constitutional right to liberty of a person accused of an offence contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act has been violated in the procedures adopted in bringing him before the District Court, in circumstances where proof of a valid arrest is not an essential ingredient in proving the charge, am I, a Judge of the District Court, entitled, for that reason, to dismiss the charge accordingly?"

1. At the hearing before me it was accepted by Counsel (a) that proof of a valid arrest is not an essential proof under Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997, (b) that there is no power of arrest without warrant for an alleged offence under this section, and (c) that no power of arrest without warrant for such an offence is conferred by Section 4 of the Criminal Law Act, 1997 since the definition of an arrestable offence under that section is "an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence". It is thus common case that Garda McTiernan did not have a power of arrest and that consequently the purported arrest was unlawful.

2. Counsel for the Accused, Mr. O'Connor, submitted that the unlawful arrest by Garda McTiernan was a flagrant breach of the Accused's constitutional right to liberty under Article 40.4.1. He also referred to Article 38.1 "No person shall be tried on any criminal charge save in due course of law" and submitted that "due course of law" included and encompassed the pre-trial investigative process and procedures prior to the hearing of the criminal trial. He referred to the judgment of Denham J. in the High Court in Coughlan v. Patwell [1992] ILRM 809 where the learned Judge stated at page 812:-

"The District Court is a Court established under the Constitution and its judges uphold the law on the Constitution. Its jurisdiction is a limited jurisdiction. But within that jurisdiction it acts in accordance with the Constitution".

3. He referred also to the cases of Trimbole v. The Governor of Mountjoy Prison [1985] IR 550 and The People (Director of Public Prosecutions) v. Mark Kenny [1990] 2 IR 110.

4. Mr. O'Connor pointed out that Garda McTiernan had available to him the power to arrest the Accused on the two previous occasions when he was abusive and threatening and thereby creating a breach of the peace. He had neglected to do so and had deliberately and unlawfully arrested him six days later.

5. Mr. Collins, on behalf of the Director of Public Prosecutions, submitted that at least since 1955, in the case of State (Attorney General) v. Fawcitt [1955] IR 39, the Supreme Court had consistently held that the jurisdiction of the District Court to embark on any criminal proceedings was not affected by the fact that the accused had been brought before the Court by an illegal process. He referred to thejudgment of O'Flaherty J. in Director of Public Prosecutions v. Delaney [1997] 3 IR 453, but pointed out that the latest re-statement of this settled principle was to be found in Director of Public Prosecutions (at the suit of Garda John Ivers) v. Angela Murphy [1999] 1 ILRM 46 and in particular in the judgment of Keane J. in that case. He submitted that the facts in the present case were quite unlike the graphic facts in Trimbole's case. The Kenny case dealt with the admissibility of evidence obtained as a result of an invalid search warrant, which was a completely different issue.

As far as Coughlan v. Patwell was concerned, he argued that the issue decided in that case was that a Judge of the District Court acts in excess of jurisdiction where he or she refuses to allow an accused person to make any submission in relation to an alleged breach of constitutional rights and refuses to listen to such a submission. The learned Judge did not statethat where an accused person alleged that there had been a breach of his or her constitutional rights, the District Court should proceed to dismiss the complaint itself. What she decided was that, where such a submission is made, it should be heard and appropriate steps taken with regard to it. In the present case, the learned Judge Hogan had acted entirely correctly within the terms of Denham J's judgment in hearing evidence and submissions and in stating a case for this Court.

THE LAW

In DPP v. Delaney the learned O'Flaherty J., giving judgment on behalf of the Supreme Court, stated (at page 457):-

"It appears that the submissions made in the District Court and also in the High Court and, to a degree, in this Court proceeded on the basis that the matter of arrest had some relevance to the charges here.

Whether an arrest is illegal nor not can only be of relevance where proof of a valid arrest is an essential ingredient to ground a charge, such as under Section 49 of the Road Traffic Act, 1961, as amended (driving with excess alcohol); see, for example,Director of Public Prosecutions v. Forbes [1993 ILRM 817. It was not necessary in the case of any of the charges brought against these appellants to prove a lawful arrest".

6. The learned Judge went on to deal with a number of what he described as "recondite points" which had been debated in the District Court and in the High Court, but it is clear that he felt them to be largely irrelevant, since he concluded his judgment by saying (at page 461):-

"It will be clear from what I have stated in the course of this judgment so far that these points are of no relevance to what the learned District Judge has to decide. This is because, as already related, proof of arrests, the validity of which arrests might have been vitiated if there was a breach of the Constitution, was not an essential ingredient to prove the charges brought and, in any event, provided the District Judge is satisfied that Sergeant McGrath was acting bona fide in the belief that he should enter the premises to safeguard life and limb, then there was no breach of the Constitution".

7. It seem to me that Judge Hogan erred in stating, as he did in the District Court, that the first-quoted remarks of O'Flaherty J. were obiter; they were in fact the main ratio of the decision. This is reflected in the official report of the case in the Irish Reports where the primary matter held by the Supreme Court is summarised in the head note:-

"1. That whether an arrest was illegal or not, could only be of relevance where proof of a valid arrest was an essential element to ground a charge".

8. The judgment of Keane J. in DPP (Ivers) v. Murphy seems to me to set the matter out with the utmost clarity. He states (at page 61):-

"It has been repeatedly pointed out that, as a general rule, the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been brought before the Court by an illegal process. If I refer to ajudgment which I delivered in Killeen v. Director of Public Prosecutions [1997] 3 IR 218, it is simply because, so far as I am aware, it is the latest re-statement of that well settled principle. I said (at page 228/9-10:

'It can, in general, be said that the jurisdiction of the District Court to embark on any criminal proceeding, including the holding of a preliminary examination, is unaffected by the fact, if it be the fact, that the accused person has been brought before the Court by an illegal process. This was so held by Davitt P. inState (Attorney General) v. Fawcitt [1955] IR 39 at page 43 where he said:

"The usual methods of securing the attendance of an accused person before the District Court, so that it may investigate a charge of an indictable offence made against him, is by way of arrest or by way of formal summons, but neither of these methods is essential. He could, of course, attend voluntarily, if he so wished; so far as the exercise of the Court's substantive jurisdiction is concerned, it is perfectly immaterial in what way his attendance is secured, so long as he is present before the District Justice in Court at the material time. Even if he is brought there by an illegal process, the Court's jurisdiction is nonetheless effective".

Some qualifications to that general principle may be noted in passing. Firstly evidence obtained from the accused person during the course of a detention which proves to be unlawful, whether because of a defective warrant or for some other reason, may subsequently beexcluded as inadmissible by the Court of trial. Secondly, where the process by which the person is brought before the Court involves a deliberate and conscious violation of his constitutional rights, of which the most graphic example is State (Trimbole) v. Governor of Mountjoy Prison [1985] IR 550, the Court may be justified in refusing to embark upon the hearing. There may also be cases in which a question is raised as to the validity of the detention in Garda custody of a person brought before the District Court, in which case the appropriate course is to remand the person concerned, enabling him, if he wishes so to do, to apply to the High Court for an Order of Habeas Corpus. (See the observations of McCarthy J. inKeating v. Governor of Mountjoy Prison [1991] 1 IR 61). None of these considerations arise in the present case'.

Neither do they arise here. That, in my view, is sufficient to dispose of the present case".

9. It is, as was pointed out by Counsel for the Director of Public Prosecutions, notable that the learned Keane J. uses the term "graphic" to describe the facts of Trimbole's case. The circumstances in the instant case are very far removed from such a deliberate and conscious violation of constitutional rights. I am, of course, aware that the term "deliberate and conscious" does not necessarily involve mala fides; however, on the facts as set out in the Case Stated, it seems unlikely that the unlawful arrest in this case would require the Court to refuse to embark on the hearing. Ultimately, however, as was held by Denham J. inCoughlan v. Patwell, this is a decision for the Judge of the District Court. Denham J. states at page 814:-

"If an individual as here alleges that his constitutional rights have been infringed in procedures adopted in bringing him before the Court, then the District Court has jurisdiction to, and indeed should, hear the submission and take such steps as it considers proper. It is not appropriate for a District Court to refuse to allow such a submission to be made to the Court. It may be that the District Justice on hearing the submission would have a very clear picture and could deal with the matter there and then. It may be that the District Justice would take the view that there should be a full submission after evidence is heard in the trial. It may be that the District Justice would take evidence and state a case".

10. The learned Judge Hogan clearly acted correctly in hearing both evidence and submissions and in stating a case for this Court. It remains for him to decide whether or not to dismiss the case, but this is a decision which he should make in the light of the general rule, as set out by Keane J., that the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been brought before the Court by an illegal process. Only if he feels that there has been a deliberate and conscious violation of the Accused's rights, as in Trimbole's case, should he decline to embark on the hearing.

11. The answer, therefore, to the learned Judge's question to this Court is a qualified affirmative. Yes, he is strictly speaking entitled to dismiss the case, but only if he considers that, on the evidence before him, it falls within the parameters of the decision of the Supreme Court in DPP (Ivers) v. Murphy.