High Court clears way for rearrest of five men released by drugs case judge

 

Five men arrested by gardai in connection with a cannabis seizure were freed after one District Judge made an invalid order and another misinterpreted the law, a High Court judge has said. Yesterday's High Court decision has cleared the way for the rearrest of the five men so that they can be charged with offences connected with the seizure of £3 million of cannabis in Tallaght, Dublin.

Gardai have been unable to locate two of the men since all five were discharged by a District Judge last month.

In a reserved judgment yesterday, Mrs Justice McGuinness quashed the orders made by District Judge William Early on November 18th and 20th last discharging the men from custody. She said it was unnecessary to grant a further order compelling Judge Early to charge the men or permit their charging. She believed they could now be charged and processed before the courts in the normal way.

Only three of the five were represented at the judicial review hearing of the DPP's challenge to the orders of Judge Early heard by Mrs Justice McGuinness last Thursday and Friday.

They were Mr Patrick Ralph (33), Village Crescent, Celbridge, Co Kildare; Mr Christopher Burke (26), of Fettercairn, Tallaght; and Mr Maurice O'Riordan, Pineview Road, Aylesbury, Tallaght. Gardai were unable to locate the other two, Mr Eugene Kelly and Mr Michael Maguire.

Judge Early was not represented in the proceedings, but counsel filed statements of opposition on behalf of Mr Ralph, Mr Burke and Mr O'Riordan.

The case arose from a Garda seizure of 300 kg of cannabis resin at a house in Tallaght on November 13th. The five men were arrested on that date under the Criminal Justice (Drug Trafficking) Act and detained for six hours. Further detention periods were authorised. On November 15th District Judge Desmond Windle issued warrants authorising a further 72-hour detention.

Mrs Justice McGuinness said it was clear from the relevant section of the Act that not all District Court judges had the power to issue such warrants. Only the President of the District Court and Judge Thelma King were nominated to issue such warrants in the Dublin Metropolitan area.

She said: "It seems strange that a situation was permitted to arise where neither the gardai nor the district judges were kept informed of who was empowered to issue the warrants."

She said Garda doubts about Judge Windle's situation arose on November 18th and the men were released. The DPP then directed that all five be rearrested, charged and brought before a court. The men were brought before Judge Early on November 18th.

It was submitted on their behalf that their rearrest was unlawful under Section 4 (1) of the Act, and Judge Early discharged all five.

On November 19th Judge Thelma King issued arrest warrants and Mr Ralph, Mr Burke and Mr O'Riordan were rearrested the following day. Gardai could not locate the other two. Mrs Justice McGuinness said the three were brought before Judge Early who remanded two of them in custody. It was submitted for Mr Ralph that his rearrest was unlawful under Section 4 (1) of theAct, which, it was argued, overrode the provisions of Section 4 (5) of the same Act. It was submitted for the DPP that Section 4 (5) permitted the rearrest of the men so that they could be charged and brought before a court.

Judge Early accepted the arguments made by counsel for Mr Ralph and discharged him and later discharged the other two on the same grounds.

The DPP then initiated judicial review proceedings challenging Judge Early's decisions.

Mrs Justice McGuinness said the Act provided for additional powers of detention and arrest for the Garda in relation to suspected drug-traffickers. There were a number of safeguards against repeated detention, which were clearly necessary as the Act provided for a maximum seven-day detention period and that was "a very severe power".

Secton 4 (1) of the Act provided that where a person was held and released, they should not be rearrested except where new information had come to light since their release regarding their alleged participation in the offence.

Section 4 (5) stipulated that notwithstanding Section 4 (1) a person could be rearrested to be charged with an offence and brought before a court.

The judge said there was a distinction between arrest for the purpose of detention and arrest for the purpose of being charged and brought before a court.

In the present case the men had to be freed because Judge Windle's order was clearly invalid. Gardai felt they had then enough evidence to charge the men, and there was no evidence that the gardai were acting in bad faith.

There was nothing wrong in moving to rearrest the men provided they were immediately charged and brought before a court. Having surveyed the laws, the judge said Judge Early's interpretation of the 1996 Act was incorrect.

On whether Judge Early had the jurisdiction to make the orders discharging the men, Mrs Justice McGuinness said the basic jurisdiction of the District Court in relation to the offences preferred against the men had been established. However, it was the task of the High Court, not the District Court, to decide whether a person was in lawful custody or not.

She concluded that the error made by Judge Early was not within his jurisdiction and was amenable to judicial review.

The judge said she would not exercise her discretion to refuse the orders sought by the DPP. This was an issue of public importance which might affect quite a number of other persons. She accepted there were weaknesses in the State's presentation of evidence and preparation of its case and "an element of haste and panic" in getting the proceedings on as fast as possible.

But she did not believe the weaknesses were sufficient not to quash the orders made erroneously by Judge Early. The State applied for costs but this was opposed by counsel for the three men. Mrs Justice McGuinness said that while the men had not stood over Judge Early's interpretation of the Act, they had made submissions on other issues like jurisdiction and discretion which deserved to be made. She directed that the State pay half of the costs of the three men, and granted a stay on that order in the event of an appeal.