The Supreme Court said the prosecution must establish that circumstances requiring reconsideration of a suspect’s continued detention for investigation had not arisen, or that the required consideration took place. The court’s reference concerned Colm Roche, who had been acquitted of two cannabis resin possession charges.
The Director of Public Prosecutions referred questions of law under section 34 of the Criminal Procedure Act 1967, without affecting Roche’s acquittal. Justice Clarke delivered a separate judgment on 23 July 2015. He said the case concerned how the member in charge of a Garda station must review the grounds for keeping a suspect in investigative detention, and what evidence the prosecution must provide when detention is challenged.
Under section 4 of the Criminal Justice Act 1984, Clarke said, continued investigative detention depends on reasonable grounds both to suspect the person of a relevant offence and to believe detention is necessary for the investigation. If either basis ceases to exist, the person must be released unless another legal ground applies.
Clarke said the member in charge must consider whether those grounds remain when circumstances reasonably call for a review. That could follow from a development in the investigation, or from a lack of investigative activity that raises a legitimate question about whether detention remains necessary. Little activity alone does not require release; the reason for the delay and the wider circumstances matter.
A change in the member in charge is one circumstance relevant to whether a review is required. Clarke said a new member may have less information than a predecessor, but there is no automatic duty to reassess detention immediately upon taking over.
On the evidential burden, Clarke said the prosecution must establish circumstances relevant to its claim that no review was triggered. If apparent inactivity had prima facie raised a need to review, the prosecution would have to explain through evidence why no review was required, or show that a review occurred and continued detention was reasonably considered necessary. The evidence need not come from the member in charge if other admissible evidence is sufficient.
Clarke did not determine how the trial judge should have resolved the issue on Roche’s evidence. He noted that the custody record had not been put in evidence, but did not decide the case’s application. He also left open whether the defence must identify a specific basis for challenging custody, and whether evidence obtained during unlawful custody could nevertheless be admissible under the principles in D.P.P. v. J.C.
Clarke proposed answering the referred question with those qualifications. He agreed that the first part did not properly arise and said the answer to the second part was, strictly, no, subject to the prosecution’s evidential burden described in his judgment.