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.