The Supreme Court dismissed Oliver Whelton’s appeal against the High Court’s refusal to quash his theft conviction and sentence. Justice McKechnie found that the Gardaí breached the statutory requirement to charge him “forthwith” after rearrest, making his detention unlawful. But that breach did not deprive the District Court of jurisdiction to try him, so the conviction could not be set aside on that basis.
Whelton had previously been arrested and detained under section 4 of the Criminal Justice Act 1984, then released without charge. On 27 October 2005, after receiving a phone call from the investigating officer, he met Detective Garda Murray by arrangement outside Anglesea Garda Station in Cork. He was arrested, taken to Bridewell Garda Station and detained at 4.40pm. He was charged at 5.45pm and released after entering a recognisance to attend the District Court.
The charge was that he stole money, contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. He pleaded not guilty, was convicted on 11 May 2006 and received a four-month prison sentence, fully suspended. An appeal against that conviction remained pending in the Cork Circuit Criminal Court. The Supreme Court said that appeal did not affect the issues before it.
Whelton argued that the approximately 75 minutes between arrest and charge breached section 10(2) of the 1984 Act, which permits rearrest “for the purpose of charging him with that offence forthwith”. McKechnie J. said the requirement was stricter than charging “as soon as practicable”: the charge must be made promptly and with urgency, assessed in the circumstances of the particular case.
The judge noted that Whelton had attended by appointment at a known place and time. A printer problem required staff to obtain the charge sheet from another station, adding about 25 minutes. McKechnie J. considered that explanation insufficient and said the rest of the delay reflected routine practice indifferent to Whelton’s liberty. He concluded that the charge was not made promptly and that the detention was unlawful.
However, the Court rejected Whelton’s separate argument that the unlawful detention invalidated the District Court proceedings. It held that the validity of the arrest or charge was not a prerequisite to the District Court’s jurisdiction to try the theft charge. The Court found no deliberate and conscious violation of Whelton’s constitutional rights that would justify refusing to proceed. It therefore dismissed the appeal and left the conviction and sentence in place. The Supreme Court judgment also addressed a separate CCTV complaint, but McKechnie J. adopted Fennelly J.’s judgment on that issue and added nothing.