Judgment: 2009-12-04 · Court archive

High Court refuses challenge over 3¾-hour delay in charging Ken Broe

The court found a breach of the requirement to charge him “forthwith” after re-arrest, but ruled that the delay did not invalidate the criminal proceedings. It also found the judicial review was brought too late.

High Court · [2009] IEHC 549

Who, what, where, when and why

Who
  • Ken Broe (Applicant)
  • The Director of Public Prosecutions
What

The court found a breach of the requirement to charge him “forthwith” after re-arrest, but ruled that the delay did not invalidate the criminal proceedings. It also found the judicial review was brought too late.

Where

Places mentioned in the report

  • Monaghan Garda Station
  • Letterkenny
  • Monaghan
When

Judgment:

Other dates in the report
  • 15 January 2009

    Mr Broe was sent forward for trial at Letterkenny Circuit Criminal Court on 15 January 2009. He obtained leave to bring the judicial review on 2 February, the day before the scheduled trial. The judge said the objection had not been raised during the intervening months and that a change of solicitor did not excuse the delay.

Why

Reasons reported in the judgment

The High Court has refused Ken Broe’s application to stop criminal proceedings against him, despite finding that Gardaí breached the requirement to charge him “forthwith” after re-arrest.

The High Court has refused Ken Broe’s application to stop criminal proceedings against him, despite finding that Gardaí breached the requirement to charge him “forthwith” after re-arrest.

Mr Justice Ryan ruled on 4 December 2009 that the 3-hour-45-minute delay did not make the proceedings invalid. He also concluded that Mr Broe had lost the ability to rely on the timing issue because he waited until shortly before trial to challenge it.

The charges arose from events in Letterkenny on 9 October 2008. Mr Broe had been detained at Monaghan Garda Station under section 4 of the Criminal Justice Act 1984. After the Director of Public Prosecutions directed that he be charged, Gardaí released and immediately re-arrested him at 8.48am on Sunday, 12 October, for that purpose. He was charged at 12.33pm.

The Gardaí said they were arranging a special District Court sitting and needed to confirm its venue before completing the charge sheet. The court accepted that account and noted there was no dispute about the facts or any allegation of bad faith. Mr Broe argued that the delay meant the charges and all subsequent proceedings were void.

Mr Justice Ryan held that the Supreme Court’s interpretation of the requirement to charge “forthwith” applied. The delay meant there had been a breach of section 10(2), even though it arose while Gardaí were trying to arrange the court sitting. The judge did not decide that the requirement was an absolute rule for every possible circumstance.

However, the judge said that, as a general rule, a court’s jurisdiction to hear a criminal case is not affected by an unlawful process bringing an accused before it. He found no exceptional circumstances here, such as a deliberate and conscious violation of constitutional rights. He also said Mr Broe was brought before the District Court as soon as practicable, and that the only alleged irregularity was the timing of the charge.

Mr Broe was sent forward for trial at Letterkenny Circuit Criminal Court on 15 January 2009. He obtained leave to bring the judicial review on 2 February, the day before the scheduled trial. The judge said the objection had not been raised during the intervening months and that a change of solicitor did not excuse the delay.

The court refused the application for judicial review. It did not quash the charges or stop the trial; the judgment held that the proceedings remained valid despite the breach.

Read the original court judgment

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