The High Court found that a man’s re-arrest at Swords Garda Station was unlawful after he was arrested for the purpose of being charged with false pretences but was instead charged more than two hours later with conspiracy to defraud.
Mr Justice Gilligan ruled that the man’s custody after the re-arrest breached his constitutional right to liberty. The judgment did not make a final order: the judge said he would hear submissions on what order should follow.
The man and his wife had been arrested at their home in County Meath on 4 November 2003. Both were detained under section 4 of the Criminal Justice Act 1984 while gardaí investigated an alleged fraudulent insurance claim. The judgment recounts that the insurer was alleged to have paid €685,658.56 following a claim connected to an operation said to have been carried out on the wife.
The man was told at 9.08pm that he was being released from detention under section 4. Detective Sergeant Daly then arrested him for obtaining by false pretences, intending to charge him with that offence. He was held at the station and charged at 11.35pm with conspiracy to defraud, on the direction of the Director of Public Prosecutions. The judgment says a fault in the station’s pulse charging system contributed to the delay, and that the charge was changed during that period.
The man sought judicial review prohibiting the District Court judge from proceeding with the prosecution. He initially had leave to argue that the charge sheet did not establish the District Court’s jurisdiction. He later obtained leave to amend his grounds, and his case proceeded on the claim that the second arrest was unlawful. The judge’s decision therefore addressed that amended ground, not the original jurisdiction arguments.
The court rejected the argument that the man had never genuinely been released from his first detention. It accepted the evidence that he was released from section 4 detention before being arrested again and said he did not have to be taken out onto the public street before the second arrest.
But the judge held that section 10(2) permits a further arrest after detention only to charge the person with the offence for which that arrest was made, and requires the charge to follow forthwith. As the man was arrested for false pretences but never charged with that offence, the judge found that his custody became unlawful when the decision was made to charge him instead with conspiracy to defraud.