The Supreme Court ruled that the absence of evidence that a replacement station officer separately reconsidered a man’s detention did not, by itself, make that detention unlawful. It answered both questions referred by the Director of Public Prosecutions in the negative, while leaving the man’s acquittal undisturbed.
Colm Roche had been acquitted by a jury in November 2011 of charges involving possession of cannabis resin and possession for supply. The DPP brought the appeal under section 34 of the Criminal Procedure Act 1967, a procedure allowing a legal question to be referred to the Supreme Court without affecting the acquittal.
The question arose from a trial judge’s decision to exclude a statement Roche was alleged to have made in garda custody. Garda Brendan O’Halloran authorised Roche’s detention at Clonmel Garda station after hearing from the arresting officer. At 2pm, Garda John Downey took over as station member in charge. The trial judge found that Downey had not given evidence that he satisfied himself the continued detention was reasonable, and ruled that detention after 2pm was unlawful.
The Supreme Court, in a judgment delivered by Mr Justice Charleton on 23 July 2015, said the trial judge’s conclusion was wrong. The evidence showed that the initial detention had been authorised on reasonable grounds. It also showed that, before Downey took over, a superintendent had permitted Roche to be fingerprinted and photographed as part of the investigation. The custody record, although not produced as an exhibit, was described in testimony about entries recording significant events, including fingerprinting, interviews and Roche’s release at 4.26pm.
The Court said the member in charge has continuing duties, including ensuring that custody regulations are followed and that a prisoner is released if the grounds for suspicion disappear or detention is no longer necessary for the investigation. But those release duties depend on a change in circumstances that triggers them. The evidence did not show that the grounds for suspicion had dissipated or that a development required Roche’s release before he was released.
The Court said a lack of evidence that a replacement officer reconsidered the original detention or its continuation was not sufficient on its own to make the detention unlawful. It held that some event shown by the evidence must require release for continued detention to become unlawful in those circumstances. The Court’s answers concerned the referred legal questions; Roche’s acquittal remained in place.