The High Court ordered the release of an applicant detained at Cloverhill Prison after finding that his re-arrest and second charge for the same alleged offence frustrated an earlier High Court release order.
In a judgment delivered on 15 January 2008, Mr Justice Michael Peart considered an application under Article 40.4.2 of the Constitution concerning the applicant’s detention under a District Court order made on 12 January. The judgment records that Mr Justice Edwards had ordered the applicant’s release the previous day, having found his detention under an earlier remand order unlawful.
The applicant had been arrested in November 2007 and charged, with other co-accused, with conspiring to steal cash in excess of €900,000. Proceedings in the District Court were delayed while the prosecution prepared a book of evidence. On 3 January 2008, the District Court extended the time for service and remanded him in custody until 17 January. The applicant challenged that detention, arguing that the prosecution had not provided evidence to justify another extension. Mr Justice Edwards ordered his release on 11 January.
According to the applicant’s affidavit, he was released after leaving the Four Courts, then immediately re-arrested, taken to Bridewell Garda Station and charged again with the same offence. At the return hearing in the present case, Detective Sergeant Justin Kelly gave evidence that he had received a direction from the Director of Public Prosecutions before the earlier release decision: if release were ordered, the applicant was to be re-arrested after leaving the court precincts.
The DPP argued that the re-arrest was lawful, relying on *Hegarty v. The Governor of Limerick Prison*. Justice Peart distinguished that case: there, the original remand was invalid because the Special Criminal Court was improperly constituted. Here, the District Court was properly constituted, but the High Court had found the applicant’s detention under its remand order unlawful.
Justice Peart said the re-arrest had frustrated the purpose of the release order and was impermissible. He noted that the applicant was then before the District Court on two separate but identical charges. Under section 4B of the Criminal Procedure Act 1967, proceedings must be struck out if an extension for serving the book of evidence is refused, though fresh proceedings may then be brought. The judge said allowing a fresh charge to restart the 42-day period for serving the evidence could circumvent the statutory time limit.
The court ordered the applicant’s release. It did not reconsider the basis of Mr Justice Edwards’s earlier decision; his written reasons were not then available.