Technical breach of statutory regulations does not invalidate arrest

The People (Director of Public Prosecutions) (respondent) v Egbertus Marius van Onzen and Frank Catharina Loopmans (applicants).

Criminal Law - Misuse of Drugs - Arrest - Breach of custody regulations - Whether breach renders detention unlawful - Breach of Judge's Rules - Whether breach renders statement inadmissible - Offence of possession of controlled drug with intent to supply - Whether intent must be to supply to person within the State - Misuse Of Drugs Act 1977 (No 12), sections 3. 15 - Criminal Justice Act 1984 (No 22), section 4 - Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations Regulations 1987 (SI No 119).

The Court of Criminal Appeal (before Mr Justice O'Flaherty, Mr Justice Barr, Mr Justice Flood); judgment delivered 5 December 1995.

A TECHNICAL breach of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Stations) Regulations 1987, will not of itself render unlawful a person's arrest under section 4 of the Criminal Justice Act 1984. In addition a breach of the Judge's Rules, which are discretionary in nature, will not necessarily render inadmissible into evidence a statement of a person made while in custody.

Where an accused is charged with possession of a controlled drug with intent to supply, contrary to section 15 of the Misuse of Drugs Act 1977, it is necessary for the prosecution to show an intent to supply the drug to any persons and it need not be proved that such persons are within the State.

The Court of Criminal Appeal so held in refusing the applicants leave to appeal against their convictions for offences contrary to sections 3 and 15 of the Misuse of Drugs Act 1977.

Denis Vaughan Buckley SC and John Edwards BL for the respondent, Barry White SC and Martin Giblin BL for the first applicant, Peter Charleton SC and Henry Downing BL for the second applicant.

MR JUSTICE O'FLAHERTY, delivering the judgment of the court, said that the applicants had been found guilty, in the Circuit Criminal Court, of possession and of possession with intent to supply of a large quantity of cannabis resin within the territorial waters of the State.

He said that, in July 1993, the Garda came into possession of a mobile phone which they had grounds for believing would be called from a vessel off shore. A number of calls were indeed made from a yacht off Loop Head, Co Clare, and a garda spoke with a person on the boat seeking to lead the occupants to believe that he was their contact on shore. A discussion later ensued in which an occupant of the vessel asked a garda whether he was arranging the rescue of the cargo from the yacht and was told that this was being done.

Later that night a naval vessel went in search of the yacht and made radar contact with it when it was 4.4 miles within territorial waters. The yacht was boarded by the authorities and, an attempt to scuttle the yacht having been prevented, its four occupants, among them the applicants, were apprehended. The applicants were taken to Tralee Garda Station and arrested and detained for a period of six hours by the member in charge, one Garda Herbert, at the station pursuant to section 4 of the Criminal Justice Act 1984; the period of detention was extended for a further 6 hours by one Superintendent Garvey. The applicants were then released but immediately re arrested and charged with inter alia, the offences of which they were ultimately found guilty.

Mr Justice O Flaherty said that the applicants sought leave to appeal their convictions on a number of grounds. The first g round concerned section 11 of the Maritime Jurisdiction Act 1959, which required that, in the prosecution of an alien for an offence allegedly committed in the territorial seas on a foreign ship, the certificate of the Minister for Foreign Affairs, stating that the institution of proceedings was expedient, was required. It was contended by the applicants that the official of the Department of Foreign Affairs who had authenticated the ministerial seal on the relevant certificates did not prove his authority so to do. Mr Justice O'Flaherty said that, in the view of the court, the oral testimony of the official was sufficient evidence of such authority.

The applicants next contended that the trial judge had erred in admitting into evidence certain maritime charts produced by the prosecution. Section 13 of the Act of 1959 stated that the Government could prescribe the charts which might be used in establishing the territorial seas and, said Mr Justice O'Flaherty, a Government order of 1959 had prescribed that charts published by the Admiralty, London should be such charts for the purposes of the Act. The applicants argued that as the service producing these maritime charts no longer operated from London and as, the Admiralty had become, since 1959, part of the larger Department Of Defence, the order of 1959 was no longer valid. Mr Justice O'Flaherty said that the changes since 1959 were more apparent than real and that the impugned order remained valid. The applicants third ground of appeal centred upon the legality of their detention. In this respect they argued that there was a doubt whether Garda Herbert was in fact the member in charge and, accordingly, a doubt regarding the admissibility in evidence of any statements while in detention.

Mr Justice O'Flaherty said that the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 stated that the superintendent in charge of a district shall issue instructions as to who is to be the member in charge of each station in the district. In this district the superintendent, in 1986, had instructed that the station orderly was to be the member in charge. Noting that there was confusion whether Garda Herbert was the station orderly, Mr Justice O'Flaherty said that the court accepted the evidence tendered that, in times of pressure, the two roles might be separated and, further, that it accepted the evidence that Garda Herbert was acting as the member in charge and was recognised as such; whilst, there may have been a technical breach of the 1987 regulations, section, 7(34 of the 1984 Act provided, in effect, that a technical breach of the regulations did not of itself affect the lawfulness of a person's detention.

The applicants then contended that there had been a delay in providing them with a solicitor. Mr Justice O'Flaherty noted that the trial judge had accepted this point and had, as a result, ruled out an initial statement made by the first applicant before his solicitor had arrived. The applicants relied on the decision in People (Director of Public Prosecutions) v Buckley [1990] 1 IR 14 to the effect that where an accused makes an inculpatory statement having previously been induced by threat, promise or inducement to make an earlier inadmissible inculpatory statement, then the latter statement, despite the absence of immediate oppression, is also inadmissible.

Mr Justice O'Flaherty said that in the view of the court, this submission was not tenable because the same decision went on to hold that where an earlier statement was rendered inadmissible not by reason of oppression but due to a technical breach of the Judges Rules then very different considerations would apply. In the view of the court such breaches as had occurred in the instant case were even more minor than any breach of the Judge's Rules.

Finally, with respect to the legality of the applicants detention, Mr Justice O Flaherty said that even had the court thought that there were circumstances for rendering the applicants' statements inadmissible, it would have held that their admission did not constitute a miscarriage of justice and would have upheld their convictions on the basis that they had, in any event, been caught red handed.

Mr Justice O'Flaherty then went on to deal with certain additional grounds of appeal which had been advanced on behalf of the second applicant.

It was argued that to be guilty of the offence of possession of a controlled drug with intent to supply it to others, under section 15 of the Misuse of Drugs Act 1977, it was essential for the prosecution to show that the drugs were intended for supply to persons within the State. It was contended that the all the evidence had pointed to the fact that the applicant had intended to ship the drugs from the State for supply to persons in another jurisdiction.

In reply, it was argued for the prosecution that it was necessary simply to prove possession with intent to supply to another, and that that other need not be within the State.

Noting that counsel for the second applicant had contended that under Irish law the exercise of criminal jurisdiction generally did not extend to cover acts committed outside the State, Mr Justice O Flaherty said that, in principle, it would be wrong for the court to show no concern for persons outside the State to whom controlled drugs were supplied. In addition the court was of the view that the authorities indicated that this submission was incorrect.

It was also contended for the second applicant that the prosecution had failed to show that he had been part of the common design engaged in by the persons on the yacht to bring the yacht's cargo within the jurisdiction. In the view of the court, it was unnecessary to prove such intent in order for the applicant to be guilty of the offence. Finally, the second applicant had submitted that he had been lured into the territorial waters. Mr Justice O'Flaherty said that there was no evidence that the Gardai had sought to lure the boat into territorial waters; they had merely, in the detection of a crime kept in contact with the vessel without disclosing their true identity. In any case, the evidence established that the boat had been within the territorial waters virtually at all times that the Gardai were in communication with it.

In all the circumstances the court refused the application for leave to appeal against conviction and affirmed the convictions.

Solicitors: Chief State Solicitor for the respondent; Edward O'Sullivan (Tralee) for the first applicant; Murphy & Co. (Tralee) for the second applicant.