In the Dáil last Thursday, when dealing with questions on the matter now before the House, I said I would make a full statement when proceedings before the High Court had been concluded. My reason for proceeding in that way was to avoid the situation where something said in this House concerning the merits or otherwise of relevant court decisions might inadvertently impact on the matters now before the High Court.
Deputies will also be aware that when the proceedings in question came before the High Court yesterday evening, they were adjourned until Thursday of this week. However, because there is an understandable desire amongst Deputies and the public in general for further information relating to this matter, it is right that I should put before the House, as fully as I can, the information now available to me.
Naturally, I am as deeply concerned about these events as everybody else. Before I proceed to recite the facts now made available to me, it is vitally important that we avoid the situation where something said in this House about the merits or otherwise of court decisions already made in connection with this matter would impact in any way on matters currently before the High Court. I am sure Deputies will agree on the absolute importance of avoiding that.
In this context, I should also inform the House that the sequence of events I shall outline is based largely on information I received from the Garda. While I will set out as fully as I can the facts that have been made available to me, the House will appreciate that obviously the circumstances surrounding the facts of arrest and detention are matters which can, and often do, become the subject of dispute in court proceedings and, as new information might emerge at a trial, it will fall to the courts to decide the facts of the matter.
At approximately 7.25 p.m. on Thursday, 13 November 1997 three persons were arrested under section 6 of the Misuse of Drugs Acts, for an offence under section 15 of the 1977 Act. The three were detained under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996. There have been numerous arrests under the 1997 and 1996 Acts which have not given rise to difficulty. A short time later two other persons were arrested under section 25 of the Misuse of Drugs Acts 1977 to 1984 for an offence under section 15. These two were also detained under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996.
Approaching six hours into their detention all five prisoners had their detention period extended for a further period of 18 hours by Chief Superintendent Kevin Carty, head of the Garda National Drugs Unit, in accordance with the provisions of section 2 of the 1996 Act. On Friday, 14 November 1997 their period of detention was further extended under section 2 for a period of 24 hours by Chief Superintendent Carty. I am informed by the Garda authorities that on Saturday, 15 November the Garda, at approximately 4.55 p.m., went to the Dublin Metropolitan District Court in order to apply to the court, under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996 for an extension of the period of detention of the five persons under arrest.
The Garda brought with them blank warrants and a copy of the Act. The Garda gave the blank warrants and the copy of the Act to the District Court Clerk who passed the copy of the Act to the judge. The five persons were legally represented. The court was adjourned to enable the court clerk to prepare the necessary documentation. Approximately 20 minutes elapsed, following which Judge Windle heard evidence from Chief Superintendent Carty and granted the order sought by the Garda. At the time this application was made the Garda authorities genuinely believed that Judge Windle had been nominated by the President of the District Court to deal with such an application, a belief shared by the judge. The warrant authorising the continued detention and signed by the judge included the following assertion:
I, being duly nominated by the President of the District Court for the purpose of the Criminal Justice (Drug Trafficking) Act, 1996 .................. hereby authorise the detention of [the persons named] for a further period not exceeding 72 hours.
The Act gives functions to District Court judges only following their nomination by the President of the District Court. I am informed that on 12 September 1996 the President nominated all of the district judges assigned to provincial District Court areas, 22 judges in all, and on 8 November 1996 he nominated one of the judges assigned to the Dublin area.
The Garda advise me that, prior to this case, they have experienced no difficulties in applying the detention and arrest provisions under the Criminal Justice (Drug Trafficking) Act, 1996 since its introduction in September 1996. To date, approximately 255 people have been detained under the Act and the detention was extended by a judge in 33 cases. Furthermore, the Garda advise me that they have not encountered difficulties in applying power of arrest under the provisions of the Misuse of Drugs Acts, 1977 to 1984.
Late on Monday, 17 November 1997, Chief Superintendent Carty became aware, because of developments in another unrelated case, that there seemed to be some doubt as to whether Judge Windle had been nominated by the President of the District Court for the purpose of section 2 of the 1996 Act. I am advised that he contacted Judge Windle that evening at the judge's home but was assured by the judge that there was no cause for concern. Doubts continued to be expressed, however, and on Tuesday, shortly after midday, the Garda contacted the DPP to clarify the position. As the President of the District Court was indisposed, an officer of the DPP contacted the office of the president and was informed that Judge Windle had not been nominated.
The DPP then directed the release of all five prisoners from detention. He also directed the Garda to re-arrest all five prisoners under section 25 of the Misuse of Drugs Acts for the purposes of charging them with an offence under section 15.
The five prisoners were released from custody in the Garda stations where they had been detained at approximately 1 p.m. on Tuesday, 18 November 1997. They were immediately rearrested by the Garda in accordance with statute and pursuant to the directions given and were charged with offences contrary to section 15 of the Misuse of Drugs Acts, 1977 to 1984. All five accused were brought before District Court Judge William Early presiding in one of the custody courts in the vicinity of the Bridewell Garda station. Evidence was given before Judge Early of the arrest, the charging and the cautioning of the accused. A remand in custody was sought.
Solicitors for the accused made submissions to the effect that the prosecution was precluded from arresting the accused for the purposes of having them charged and brought before the court. It was submitted that since the accused persons had been detained pursuant to section 2 of the Act of 1996, and had been released without charge, they could not again be arrested except in circumstances provided for by section 4(1)(b) of the Act. This provides as follows:
Where a person is detained pursuant to section 2 and is released without any charge having been made against him or her, he or she shall not—
(a) be arrested again in connection with the offence to which the detention related, or
(b) be arrested for any other offence which, at the time of the first arrest, the member of the Garda Síochána by whom he or she was arrested suspected, or ought reasonably to have suspected, him or her of having committed,
except under the authority of a warrant issued by a judge of the Circuit Court or a judge of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that further information has come to the knowledge of the Garda Síochána since the person's release as to his or her suspected participation in the offence for which his or her arrest is sought.
This provision exists to facilitate the further questioning of suspects who had earlier been detained under the provisions of section 2 of the Criminal Justice Drug Trafficking Act, 1996.
Detective Inspector Sutton from the Garda National Drugs Unit, on behalf of the Director of Public Prosecutions, submitted that subsection 4(5) of the 1996 Act clearly covered the situation. That subsection provides:
Notwithstanding subsection (1), a person to whom that subsection relates may be arrested for any offence for the purpose of charging him or her with that offence forthwith.
The accused persons before the court had been charged forthwith with the offences which were before the court and as a consequence, the Criminal Justice (Drug Trafficking) Act, 1996, had no longer any relevance to the proceedings.
Judge Early ruled that the rearrest of the accused persons was unlawful and that, therefore, the charges which had been preferred against them, their subsequent custody and their appearance before the court was also unlawful. He indicated that in his view the only rearrest of the accused persons which was possible was a rearrest in accordance with section 4(1) of the Act.
The Garda decided on the spot that the five persons should be rearrested and recharged. They succeeded outside in arresting two, but the other three could not be located. The Garda brought the two they had arrested to the Bridewell Garda Station where, following discussions, it was decided to release the two and consult fully with the DPP.
Following further consultation the Director of Public Prosecutions directed that warrants should be sought from a district judge for the rearrest of the five persons. The Garda decided that, as Judge Early was familiar with the case, the warrants should be sought from him.
That evening three gardaí travelled to Judge Early's home with a view to swearing information for arrest warrants for the five released persons, arriving at about 9.30 p.m. The judge declined to issue the warrants as he believed that such were not appropriate in the light of his rulings earlier in the day. He indicated that, in his view, the Director could only apply for a warrant pursuant to section 4(1) of the 1996 Act.
The gardaí submitted to the judge that section 4(5) of the 1996 Act clearly covered the situation and that there was no bar to the rearrest of the suspects for the purpose of charging them with an offence. Judge Early, however, did not agree.
The Garda again consulted the DPP and on the morning of Wednesday, 19 November 1997 a solicitor from the office of the Chief State Solicitor attended at the Bridewell Courts on the instructions of the Director to apply for arrest warrants. Judge King dealt with this application. The applications for warrants were grounded upon the sworn information of two sergeants of the Garda Síochána and were warrants directing that the individuals concerned be arrested and brought before the court for the purposes of being charged. It was pointed out to Judge King that although she was possessed of certain additional powers, pursuant to her nomination by the President of the District Court for the purpose of section 2 of the 1996 Act, it was not the intention of the Director of Public Prosecutions to rely on these powers as the Director did not wish to obtain any order pursuant to the Act of 1996. Judge King in chambers, having being informed of the earlier decision at 2 p.m. on Wednesday, 19 November 1997 issued the necessary warrants for the arrest of the five persons.
On the Wednesday evening two of the warrants were executed and on the following day a third. The three persons who had been arrested appeared before Judge William Early once more on the morning of Thursday, 20 November 1997. All three were represented by solicitors. The cases of the first two were called first and there was evidence given of arrest, charge and caution. The Garda sought a remand in custody and both accused were remanded in custody for a week.
There was a delay while the third person awaited the arrival of counsel in addition to his solicitor. When this case was next called, counsel for the third person made submissions stating that the provisions of section 4(5) of the Act of 1996 were overridden by the provisions of section 4(1). It was indicated by the State Solicitor that the warrant before the court which had been executed by the detective garda was a normal arrest warrant and that section 4(1) of the 1996 Act had no relevance to it. The State Solicitor argued that the accused was charged with an offence and that the Court had jurisdiction to remand him. In response, Judge Early stated that he had to have regard to section 4(1) of the Act and he then made an order discharging the accused.
After this order was made counsel and solicitor for the two persons already in custody obtained further instructions from their clients — by then in Mountjoy Prison — and at about 4 p.m. they confirmed to the judge that they had instructions to ask him to vacate his earlier order. Judge Early then indicated that he would hear their applications. Having considered arguments from the counsel for the accused and the Chief State Solicitor, Judge Early indicated that in his view it would be unjust not to vacate his orders and he did so. This meant that all three accused had to be released.
On 21 November 1997 a High Court Judicial Review by way of certiorari and mandamus was applied for on behalf of the Director of Public Prosecutions in relation to the refusal of Judge Early to accept jurisdiction both on Tuesday, 18 and Thursday, 20 November. That case is pending in the High Court.
The procedures adopted in this case have on many previous occasions been successfully applied in court proceedings by the Garda Síochána and no difficulties have been encountered. I am advised that the re-arrest of persons in accordance with statute and common law for the purpose of charging has not been the subject of the discharging of accused persons prior to this case. I am also advised by the Garda authorities that whether or not the judge dealing with the extension of time originally — Judge Windle — had been nominated by the President of the District Court, as required by the 1996 Act, the same procedures would have been followed in relation to the re-arrest, that is, procedures followed in other cases. On this basis, the issues which are now before the High Court would have arisen in any event.
Those are the facts available to me. What finally happens in relation to the decisions made by the District Court is now a matter for the High Court and it would be wrong of me to speculate as to what these decisions might be or to say anything about the merits or otherwise of the decisions already reached.
However, there are other matters — not bearing on the law — on which the House is entitled to comment. Last Thursday I gave the House, both in the debate on the annual report of the European Monitoring Centre for Drugs and Drug Addiction and in response to Private Notice Questions, the information which was available to me then in relation to these matters, which I could stand over and which I could properly disclose to the House at that stage.
Some Members of this House, and some commentators outside, expressed dissatisfaction with the information which I was in a position to make available. It is important, therefore, to put on the record the constraints under which I had to operate. Central to these, as I have said more than once, is the fact that the issues in question arose in the context of court proceedings.
Certain issues arise from that. First, it has never been the practice of Minister for Justice to comment on judicial decisions. It would have profound implications for the operation of our democracy if it were to be otherwise. Of course, it would be tempting as a short-term political expedient for a Minister for Justice to express dissatisfaction with a court ruling when facing questioning in this House. However, a Minister for Justice, irrespective of the criticism, who would respond in that way would not, on a more sober analysis of the situation, have acted either properly or wisely. To the best of my knowledge, it would be unprecedented for this House to discuss issues arising in court proceedings which were ongoing. It may be the case that last Thursday I did not place sufficient emphasis on those constraints which were upon me.
Further points need to be made about the context in which matters such as this are discussed in the House. They may be basic but in the context of what has been said in recent days they are worth repeating. As legislators we are responsible for enacting legislation. It is then solely a matter for the courts to interpret that legislation. From time to time some of us might not be happy about the interpretation a court puts on specific legislation. That may be perfectly understandable but that is the price we pay — and a price well worth paying — for having an independent Judiciary.
Decisions in the lower courts are appealable to higher courts. To seek to rush to judgment about the proper interpretation of legislation in the light of a particular court decision before appeal procedures, which in practice in some cases find that decisions of lower courts have been wrongfully decided, is not the way to proceed. I know that Deputies agree on this point. I am underlining it, not because the point is doubted by the vast majority here but because it is important that I put on record the very clear distinction between our role as legislators and the role of the courts as the interpreters of the law. While respecting and accepting the separation of powers it is still reasonable to ask whether I could have given more information to the House last Thursday. On that day, and for some time before that, the Garda who would be in a position to give a detailed report of all aspects of the case were involved in pursuing their primary operational objective of trying to ensure the persons suspected of the offences in question were brought before the courts. These matters had to be dealt with under extreme pressure and I believed, and still do, that for me to have sought to divert those resources into the preparation of detailed reports for my information would have meant I was insisting that my concern that I should be able to answer fully and immediately to the House should be placed above that of ensuring the difficulties which had arisen in these cases be addressed immediately by the courts.
