The Supreme Court has dismissed the Director of Public Prosecutions’ appeal concerning evidence excluded at Colm Roche’s trial, leaving his acquittal undisturbed.
Roche was acquitted in 2001 by a jury in Tipperary Circuit Criminal Court on charges of possessing cannabis resin and possessing cannabis for supply. The DPP appealed under section 34 of the Criminal Procedure Act 1967. The Supreme Court stressed that the appeal was “without prejudice” to the acquittal.
The dispute concerned alleged verbal admissions made while Roche was detained at Clonmel Garda Station in December 2007. At trial, the judge rejected challenges to the arrest, search and initial decision to detain him. Garda Brendan O’Halloran had authorised detention at 1.10pm. Garda John Downey took over as station member-in-charge at 2pm.
Downey testified about custody events, including Roche’s interview beginning at 3.15pm and his release at 4.26pm. He gave no evidence that he had assessed whether continued detention was necessary or whether there had been unnecessary delay. The custody record was not produced in evidence.
The trial judge ruled that detention after 2pm was unlawful and excluded the evidence. He considered that the statutory provision allowing evidence despite breaches of custody regulations did not apply, because the complaint concerned a breach of the Act itself.
In a judgment delivered by Justice Hardiman on 23 July 2015, the Supreme Court addressed the evidential record and the trial judge’s exercise of discretion. Hardiman said the prosecution had to establish that custody was lawful, including compliance with safeguards against unnecessary delay and the requirement to consider whether continued detention remained warranted. He noted that Roche was arrested at 12.20pm, detained at the station from 1.10pm, and not questioned until 3.15pm; no reason for that interval was given in evidence.
Hardiman said the trial judge had heard the witnesses and that he could identify no basis for the Supreme Court to review the judge’s decision to exclude the evidence. He concluded: “I would dismiss the appeal.” The judgment did not disturb Roche’s acquittal.