THE HIGH COURT
		JUDICIAL REVIEW			1995 No.  247 J.R.
BETWEEN
DECLAN McCORMACK
		APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
		RESPONDENT

Judgment delivered by Mr. Justice Declan Budd on 20th day of March 1997.

	The applicant applied for an Order of Prohibition on 14th February, 1997 with the hearing continuing on Tuesday 18th, February 1997.  The applicant had previously made an ex-parte application on 2nd October, 1995 to the High Court for leave to apply for Prohibition by way of Judicial Review and on that day Carney J. granted leave and restrained the respondent from proceeding with the prosecution of the applicant pending further order.  The Application in this Court proceeded on the basis of the following documents:   
1.	The Affidavit of the applicant's Solicitor sworn on 2nd October, 1995 together with the exhibits therein which include an inculpatory statement made by the applicant during his detention in Drogheda Garda Station pursuant to the provisions of section 4 of the Criminal Justice Act, 1984, during the period between 9.05am and 10.45am on 21st July, 1993.  
2.	The statement required to ground the application for Judicial Review dated 2nd October, 1995.
3.	The above mentioned order made on 2nd October 1995 giving leave to apply for orders of Prohibition on the grounds set out in paragraph E in the Statement of Grounds.
4.	The statement giving the grounds of opposition dated 13th June, 1996.
5.	The Affidavit of Garda Brian Morrissey which Affidavit was sworn on 5th June, 1996.
6.	A supplemental Affidavit of the applicant's Solicitor sworn on 9th December, 1996.
	Two preliminary aspects arise on these documents.  The first is that it is now common case that the applicant in fact never signed a plea of guilty and any suggestion to this effect is erroneous.  Secondly, while it is alleged that the applicant failed to appear on 16th September, 1994 in Drogheda District Court and that a bench warrant was issued for his arrest and that he thus caused delay, nevertheless this Court has been told that he did appear on 16th December, 1994.  I propose to ignore this aspect as no complaint is made about the time which has elapsed since 30th June, 1994 in bringing the matter before the Courts.  While the applicant's conduct may often be a relevant factor, in this instance the elapse of time in issue occurred before this failure to appear in September 1994.  The second part of the applicant's two pronged challenge is based on the alleged delay on the part of the respondent between 21st July, 1993, when the applicant was released without charge, and 30th June, 1994 when an application was made for a summons by the Garda in the District Court.   
	The sequence of events was as follows:-
1.	On 16th July, 1993 Garda Morrissey began an investigation into the larceny of property to the value of £19,762 from a home in County Galway.  On the evening of 16th July, 1993 Garda Morrissey arrested one P B on suspicion of handling stolen property and P B was detained at Drogheda Garda Station under section 4 of the Criminal Justice Act, 1984.  P B made a statement of admission whilst in custody.  He was charged with offences under the Larceny Act, 1916.  On 16th July, 1993 Garda Morrissey also arrested one B C on suspicion of handling stolen property related to the same incident and he was detained at Drogheda Garda Station under section 4 of the Criminal Justice Act, 1984.  B C also made a statement of admission whilst in custody, but he was released without charge.  On the same date Garda Morrissey arrested S McD on suspicion of handling stolen property.  He too was detained at Drogheda Garda Station under section 4 of the Criminal Justice Act, 1984; he also made a statement of admission whilst in custody and was charged with handling stolen property contrary to section 33(1) of the Larceny Act, 1916 as amended and he was released on bail.

2.	On the 21st July, 1993 at about 8.55am Garda Morrissey arrested the applicant at George's Street, Drogheda, County Louth on suspicion of handling stolen property.  On arrival at about 9.00am at Drogheda Garda Station, the applicant was handed over to Garda Charles O'Hanlon, the member in charge of the Garda Station.  After a discussion with Garda Morrissey at 9.05am on 21st July, 1993 Garda O'Hanlon detained the applicant under section 4 of the Criminal Justice Act, 1984.  At about 9.10am on that date Garda Morrissey took the applicant to an interview room.  At about 10.10am, on 21st July, 1993 the applicant's Solicitor arrived in the interview room and Garda Morrissey says that the inculpatory statement was subsequently signed by the applicant in the presence of the applicant's Solicitor.  At 10.45am on 21st July, 1993 the applicant was released from custody.  He was not charged at that time.  

	In his Affidavit, the Garda deposed as follows:-

	"6.	On the 24th November, 1993 having completed my investigations, I gathered together all the relevant statements I had obtained. I submitted my report to the Director of Public Prosecutions seeking directions as to what further charges should be brought against the four arrested persons including the applicant herein.
	
	7.	I subsequently received back from the Office of the Director of Public Prosecutions directions dated the 22nd June, 1994.  Consequent upon these on the 30th June, 1994 I applied for summonses against the applicant herein and one other party B C.  The applicant herein is presently before the Circuit Criminal Court at Dundalk, County Louth in respect of the charge set out in the summons applied for on that date.
	
	8.	In July, 1993 when I was investigating the matters giving rise to this prosecution, I was of the view that the applicant and B C were permanently resident in the jurisdiction and would not be likely to leave the jurisdiction.  In contrast P. B. and S. McD., I felt, were likely not to be available should summonses subsequently be served upon them and that is why they were charged at the time.  I was anxious to obtain the clear directions of the Director of Public Prosecutions to proceed against the applicant and B. C. and was confident that should such directions be given, they would be available for service of summons."

3.	On 30th June, 1994 Garda Morrissey applied for a summons against the applicant in the District Court.  On 22nd July, 1994 the summons was returnable before Drogheda District Court.  The learned District Judge refused jurisdiction and the matter was adjourned for preparation of a Book of Evidence.  In February 1995 the case came before the Circuit Criminal Court sitting in Dundalk and was adjourned to the Circuit Court in Dundalk on 1st June, 1995.  It seems that after the jury was empanelled, Counsel for the applicant, in the absence of the jury, indicated that it would be part of the defence that, as the applicant had been arrested and detained under the provisions of section 4 of the Criminal Justice Act, 1984, he should have been charged or caused to be charged by the Garda without delay, once the member of the Garda Síochána had enough evidence to prefer a charge for an offence against him.  The learned Circuit Court Judge ruled that this was an issue that should be dealt with if and when it arose in the case.  Later, under cross-examination, Garda Morrissey, according to the applicant's Solicitor's note, said words to the effect that the statement was completed and that he had clear evidence on which to charge the applicant, but did not do so, and instead released the applicant and sent on the papers subsequently to his superior officer and to the Director of Public Prosecutions.

4.	Counsel for the applicant submitted that the provisions of section 4(5) of the Criminal Justice Act, 1984 are mandatory.  The learned Circuit Court Judge, being troubled by this submission, discharged the jury without giving any directions for any finding by the jury.  

5.	Subsequently, in correspondence and by telephone, it was indicated that the Director of Public Prosecutions intended to proceed against the applicant again, before a jury in the Circuit Criminal Court and accordingly in October 1995 the applicant sought and was granted leave to apply for Prohibition by way of Judicial Review.

	The submission is made on behalf of the applicant that:   

	(1)	Section 4(5) of the Criminal Justice Act, 1984 is mandatory and accordingly the Garda's failure to charge the applicant or cause him to be charged without delay is fatal to the prosecution of the count in the indictment.

	(2)	The delay between 21st July, 1993, when the applicant was released without charge, and 30th June, 1994 when the summons was issued in the District Court, is of such a lapse of time that it is an abuse of process and prejudicial, particularly in a case of handling stolen property where knowledge and belief at the time of the offence are important, and that the prejudice in the circumstances is such that an Order of Prohibition should be granted.  
	
	The relevant parts of the sections in issue are as follows:-
	Section 3 of the Larceny Act, 1990 amends section 33 of the Larceny Act, 1916:-  
	
	"Section 33(1) A person who handles stolen property knowing or believing it to be stolen property shall be guilty of felony and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years or to a fine or to both.
	
	(2)  For the purposes of this Act - 

		(a)  a person handles stolen property if (otherwise than in the course of 	the stealing), knowing or believing it to be stolen property, he 		dishonestly -

			(i)	receives the property, or 
			(ii)	undertakes or assists in its retention, removal, disposal or 		realisation by or for the benefit of another person, or 
			(iii)	arranges to do any of the things specified in subparagraph (i) or 
			(ii) 	of this paragraph; 

		(b)	where a person -

			(i)	receives stolen property, or 
			(ii)	undertakes or assists in its retention, removal, disposal or 	realisation by or for the benefit of another person, or 
			(iii)	arranges to do any of the things specified in subparagraph (i) or 
			(ii)	of this paragraph,

			in such circumstances that it is reasonable to conclude that he knew or believed the property to be stolen property, he shall be taken to have so known or believed unless the Court or the jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether he so knew or believed; 
			and 

		(c) 	believing property to be stolen property includes thinking that such property was probably stolen property.  

	(3)	A person to whom this section applies may be indicted and convicted 		whether the principal offender has or has not been previously convicted 	or is or is not amenable to justice".

	Section 4 of the Criminal Justice Act, 1984 deals with the Detention of Arrested Persons in Garda Síochána Custody in Certain Circumstances.

	"4.-(1)  This section applies to any offence for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and to an attempt to commit any such offence.

	(2)  Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Síochána station for such period as is authorised by this section if the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person's arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence.

	(3)	(a)  The period for which a person so arrested may be detained shall, subject to the provisions of this section, not exceed six hours from the time of his arrest.

		(b)	An officer of the Garda Síochána not below the rank of superintendent may direct that a person detained pursuant to subsection (2) be detained for a further period not exceeding six hours if he has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence.

		(c)	A direction under paragraph (b) may be given orally or in writing and if given orally shall be recorded in writing as soon as practicable.

	(4)	If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for suspecting that he has committed an offence to which this section applies, he shall be released from custody forthwith unless his detention is authorised apart from this Act.

	(5)	Where a member of the Garda Síochána has enough evidence to prefer a charge for an offence against a person detained in a Garda Síochána station pursuant to this section, he shall without delay charge that person or cause him to be charged unless that person is, with reasonable cause, suspected of another offence to which this section applies and the member of the Garda Síochána then in charge of the station has reasonable grounds for believing that the continuance of his detention pursuant to this section is necessary for the proper investigation of that offence.
	
	(6)	(a)	If a person is being detained pursuant to this section in a Garda Síochána station between midnight and 8 a.m. and the member in charge of the station is of opinion that any questioning of that person for the purpose of the investigation should be suspended in order to afford him reasonable time to rest, and that person consents in writing to such suspension, the member may give him a notice in writing (which shall specify the time at which it is given) that the investigation (so far as it involves questioning of him) is suspended until such time as is specified in the notice and shall ask him to sign the notice as an acknowledgement that he has received it; and, if the notice is given, the period between the giving thereof and the time specified therein (not being a time later that 8 a.m.) shall be excluded in reckoning a period of detention permitted by this section and the powers conferred by section 6 shall not be exercised during the period so excluded:

			Provided that not more than one notice under this paragraph shall be given to a person during any period between midnight and 8 a.m.

		(b)	A notice under paragraph (a) may, for serious reasons, be withdrawn by a subsequent notice given in like manner, and in that event any time subsequent to the giving of the second notice shall not be excluded under that paragraph.

		(c)	A member of the Garda Síochána when giving notice to any person under paragraph (a) or (b) shall explain to him orally the effect of the notice.

		(d)	The following particulars shall be entered in the records of the Garda Síochána station without delay -

			(i)	the time of the giving of a notice under paragraph (a) and the time specified therein as the time up to which the questioning is being suspended,

			(ii)	whether the person being detained acknowledged that he 		received the notice, and

			(iii)	the time of the giving of any notice under paragraph (b).

		(e)	Records kept in pursuance of paragraph (d) shall be preserved for at least twelve months and, if any proceedings are taken against the person in question for the offence in respect of which he was detained, until the conclusion of the proceedings (including any appeal or retrial).

	(7)	(a)	Subject to paragraph (b), subsection (2) shall not apply to a person below the age of twelve years.

		(b)	If the member in charge of the Garda Síochána station in which a person is detained has reasonable grounds for believing that the person is not below the age of twelve years the subsection shall apply to him as if he were of that age, provided that, where such member ascertains or has reasonable grounds for believing that the person is below that age, he shall be released from custody forthwith unless his detention is authorised apart from this Act.

	(8)	Where it appears to a member of the Garda Síochána that a person arrested in the circumstances mentioned in subsection (2) is in need of medical attention, or where during his detention it comes to notice that he is in need of such attention, and he is taken for that purpose to a hospital or other suitable place, the time before his arrival at the station or the time during which he is absent from the station, as the case may be, shall be excluded in reckoning a period of detention permitted by this section.

	(9)	To avoid doubt, it is hereby declared that a person who is being detained pursuant to subsection (2) in connection with an offence shall in no case be held in detention (whether for the investigation of that or any other offence) for longer than twelve hours from the time of his arrest, not including any period which is to be excluded under subsection (6) or (8) in reckoning a period of detention.

	(10)	Nothing in this section shall affect the operation of section 30 of the Act of 1939.

	(11)	The powers conferred by this section are without prejudice to any powers exercisable by a member of the Garda Síochána in relation to offences other than offences to which this section applies."	 

	Section 10 deals with rearrest and reads:-

	10.	(1)	Where a person arrested on suspicion of having committed an 		offence is detained pursuant to section 4 and is released without any 	charge having been made against him he shall not -
			(a)	be arrested again for the same offence, or 
			(b)	be arrested for any other offence of which, at the time of the 		first arrest, the member of the Garda Síochána by whom he was 		arrested suspected him or ought reasonably to have suspected 		him,
	
	except on the authority of a justice 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 suspected participation in the offence for which his arrest is sought.  A person arrested under that authority shall be dealt with pursuant to section 4.

	(2)	Notwithstanding anything in subsection (1), a person to whom that subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith.

	(3)	Where a person who has been arrested under section 30 of the Act of 1939 in connection with an offence is released without any charge having been made against him, he shall not be detained pursuant to section 4 -
		(a)	in connection with the first-mentioned offence, or
		(b)	in connection with any other offence of which, at the time of his 			arrest for the first-mentioned offence, the member of the Garda 			Siochana by whom he was arrested suspected him or ought 			reasonably to have suspected him.	

	I have quoted these two sections at length so that s. 4(5) may be read in context as part of a provision which enables a Garda to arrest without warrant a person who may be taken to and detained in a Garda station subject to conditions and with safeguards in respect of the deprivation of the person's liberty.
	I have misgivings about dealing with this application on the basis of the three Affidavits before this Court and their contents.  The evidential basis for an application in respect of compliance with s. 4(5) would be more real in a Court which has heard and can assess the evidence given.  Nevertheless, since there has already been an abortive trial, brought about by concern as to the true construction of s. 4(5) of the Criminal Justice Act, 1984, and bearing in mind that there is much to be said for having a resolution by way of judicial review of both the issues raised by the applicant's two pronged attack in advance of any further prospective hearing before a jury, it seems to me that there is merit in dealing with this application for prohibition.  I should add that I proceed on the basis that I do not have before me on Affidavit the Book of Evidence or a transcript of the trial before the learned Circuit Court Judge.  There seems to me to be a minimal conflict as to what occurred in the Garda Station on 21st July, 1993 and subsequently, save that the applicant would lay stress on the Garda having said in evidence words to the effect that he had sufficient evidence on which to charge the applicant but did not do so and instead chose to release him.  On the other hand the respondent emphasises that the Garda has sworn that it was not until 24th November, 1993 that, having completed his investigations, he gathered together all the relevant statements he had obtained and that he submitted his report to the Director of Public Prosecutions seeking directions as to what further charges should be brought against the four arrested persons, including the applicant herein.  This averment has not been challenged by way of cross-examination of Garda Morrissey.  
	Counsel for the applicant urges that once the confession was obtained there was little further investigation involved.  However, I would be slow to ignore this averment on the part of the Garda that he was completing his investigations and that on 24th November, 1993 he gathered together the relevant statements with a view to submitting his report to the Director of Public Prosecutions.  Since the onus is on the applicant to satisfy the Court that an Order of Prohibition should issue, I would be reticent in making such an Order in the absence of an evidential basis being laid before this Court bearing out the applicant's contention.  If necessary, I would entertain an application on behalf of the applicant to cross-examine Garda Morrissey.  However, there is a more fundamental reason founded on the construction of section 4 which would obviate the necessity for such an application to cross-examine.  This is based on construing the true meaning of the words of section 4(5) when considered against the background of the then existing law with regard to arrest and detention.  
	
I.	The applicant's submissions with regard to section 4(5) of the Criminal 	Justice Act, 1984.

	The applicant contends that the provisions of section 4(5) are mandatory in that the Garda had said in evidence before the Circuit Court that, after the making of a confession by the applicant, he had sufficient evidence to prefer a charge against the applicant, and that accordingly "he shall without delay charge" the applicant, or cause him to be charged unless the applicant was, with reasonable cause, suspected of another offence.  There is no suggestion in this case that any other offence was under investigation.  
	Counsel for the applicant referred me to the unreported judgment of the Court of Criminal Appeal in DPP v Terence O'Toole and James Hickey which was delivered on 20th July, 1990 by Hederman J.  One of the issues dealt with was the time at which the Applicants should have been charged.  The Court of Criminal Appeal held that it was an ongoing murder investigation and accordingly, while there may have been a confession giving sufficient grounds for the Garda to bring a charge, nevertheless the investigation being still ongoing in respect of murder the Gardaí were entitled to continue the detention of the accused in order to strengthen their case in relation to the offence under investigation.  I quote the argument as set out on page 32:-  

	"Mr. White on behalf of the applicant Mr. O'Toole, submitted that when Mr. O'Toole made the statement, admitting to the knifing of the deceased, he should then have been brought to Court and charged with the offence.  In the Court of trial he referred to The People v Walsh [1980] IR 294 on the question of detention and matters of that nature and he submitted that the law did not permit a person to be deprived of his liberty for the purpose of providing evidence or for the purpose of being interrogated.  He further submitted before this Court that Mr. O'Toole was in unlawful custody after 1.00pm pursuant to the provisions of section 4 subsection 5 of the Criminal Justice Act, 1984.  He submitted that since section 4 permitted a lawful invasion of the individual's right to liberty, accordingly subsection 5 of section 4 should be strictly interpreted.  He further submitted in the Court of trial that under the Act the decision to charge should be taken in the Garda station and the Gardaí should not have relied on getting instructions from the Director of Public Prosecutions.  From the evidence it appears that this direction was given after the officer in charge had informed the Director of the admissions made, but was instructed to continue the investigation and at that stage not to prefer any charges.  

	Counsel for the applicant, Mr.. Hickey, submitted that the onus was on the State to justify the extended detention of his client, notwithstanding the provisions of subs. 5 of s. 4 of the Act.  He submitted that the further extension was to strengthen their case in relation to the robbery to which his client had signed a written statement admitting to it.  He further submitted that the extension was for the purpose of holding an identification parade to see if the State could strengthen their evidence that Mr. Hickey had been involved in the assault on the late Edward O'Callaghan at Vavasour Square and that to get this further evidence would not bring their case in relation to murder one small step further along the road.  In the Court of trial he submitted that a variety of reasons were given by Superintendent Malone, who at 12.20 p.m. directed Sgt. John Farrelly to detain for a further period, not exceeding six hours, both Terence O'Toole and James Hickey.  He also submitted that the reasons given by the Inspector for giving this direction was to hold an identification parade, to search the canal and to examine ashes that were taken out of the fireplace of 10D Glin Park.  Mr. Haugh submitted that the state of mind of Superintendent Malone was not adequate to enable him to make a direction under s. 4(3)(b) because such detention was not going to do any more than strengthen the case in relation to his involvement in a transaction which was unlawful.

	Superintendent Malone told the Court of trial that he gave the direction to extend the time on the basis that the applicants' further detention was necessary for the proper investigation of the offence for which they were originally arrested, suspicion of murder.  He further told the Court that he was aware that four ladies, Sandra O'Shea, Maria O'Shea, Tina Cummins and Anne O'Shea had witnessed the incident and had given very detailed descriptions of the assailants and that it was decided that it would be in the interests of all concerned that an identification parade should be held and that these witnesses should be asked to participate.  He further told the Court that the arrangements to hold an identification parade were first put in train at approximately 2.30 p.m. and that the parade proper was under the control of Inspector Donoghue, who was not concerned in the immediate investigation of the murder.  He stated that both accused consented to going on the parade and that Mr. Sheehan, Solicitor, was present on behalf of both accused.  Later in the course of his evidence he stated that in his opinion the statements alone would not be sufficient, if he could get additional evidence in a serious case of murder.  He stated - 'I felt every opportunity should be given to get good and valued corroboration of the statements for the proper investigation of  the offence'.  

	The Court feels that in the instant case it should draw attention to the state of the trial at which it was being contended for the applicants that at that stage they should have been charged.  These submissions were being made in the absence of the jury at the same time as both counsel were submitting to the Court that on the evidence before it, including the evidence that was given by both the applicants, that none of the statements, either written or oral, made by either of the applicants, should be allowed in evidence.

	Dealing with these  submissions, the trial Judge stated:  'section 4, subsection 5 cannot be read on its own.  The purpose of the section is to permit detention for proper investigation of certain offences provided that a proper investigation is continuing - then a further detention is authorised.  Subsections 4 and 5 relate to the obligation of the officer in charge, when the investigation, so far as it affects the detainees has been completed.  If it is shown that there are no longer reasonable grounds for suspecting the detainee of having committed the offence, he must be released.  If on the other hand, at the same time, there is enough evidence to prefer the charge, then he must be charged without delay.  The provision does not admit of an ex post-facto consideration of the course of the investigation to determine at a later time at what point there may have been enough evidence to prefer a charge. 
 
	In the present case, the Director of Public Prosecutions has been kept informed of the course of the investigation, so as to obtain his directions as to what, if any, charges should be brought.  It has been submitted that it is no function of the Director of Public Prosecutions to decide whether or not a detainee should be charged.  The Court does not accept this submission.  A subsequent prosecution is at the suit of the Director of Public Prosecutions and it must be for him to decide in those cases where his direction is sought, whether or not there is enough evidence to prefer the charge'."	
	Counsel for the applicant submitted that in the case before this Court the count was one of handling stolen property and suggested that in reality all the transactions in the Book of Evidence involving statements from eight Gardaí and one civilian came to an end on 21st July, 1993.  Counsel for the respondent correctly pointed out that the Book of Evidence was not a part of the evidence before this Court and that this part of the applicant's submission lacked evidentiary basis. On reflection, it would seem that this aspect is more appropriately dealt with by the Court of trial which can hear and assess the evidence.  However, I do not think that this would justify shirking a confrontation with the more fundamental legal issue raised by the applicant.
	At page 39 of  DPP v O'Toole and Hickey Hederman J. continued:- 
	
	"The first issue for this Court to determine is whether or not Superintendent Malone, in the circumstances prevailing at the time that he did order the further detention of the applicants, was entitled to so order.  This Court rejects the submission that once an accused has made a statement involving himself directly or indirectly in the crime for which he is charged that that fact necessarily concludes that there is no necessity for his further detention for the proper investigation of the offence.  It is not only the right, but also the duty of Gardaí investigating the crime of murder, to fully investigate all the circumstances in an effort to establish all the facts relevant to the crime and to the guilt or innocence of the person or persons accused of that crime.  The taking of statements, whether exculpatory or inculpatory, is only a part of an investigation, but in the opinion of this Court is most certainly not a full and proper investigation of the offence.  (My underlining for emphasis).

	The Court is also satisfied that it is proper for the officer in charge of an investigation to inform the Director of Public Prosecutions of the ongoing investigation, particularly a crime of murder; of keeping him informed of the evidence available or likely to be available and of taking direction from him as to whether or not, at any given stage in the investigation, a charge of murder should be preferred.
  
	In this case the Gardaí kept the Director informed of everything that was happening, including the statements of admission made by both of the applicants, but continued their investigations either on the advice or instructions of the Director and during the second period of the detention, held an identification parade, at which both applicants were identified as being participants in the robbery of Mr. O'Callaghan.  The Gardaí were satisfied, having consulted with the Director, that they should further detain the applicants and hold an identification parade as part of the necessary as well as the proper investigation of the offence of the murder of Mr. O'Callaghan.  

	If, having taken the statements of admission from the applicants, the Gardaí charged the applicants with murder, without having held an identification parade, and if subsequently at the trial the statements being the only evidence or almost the only evidence against the accused were held inadmissible in law, then the Gardaí would be rightly criticised for failing to properly investigate the offence of murder.

	Once the Director informed the Gardaí, after the statements were made, that he would not then prefer a charge of murder or robbery against either of the applicants, the Gardaí had not enough evidence to prefer such charges and therefore should not have charged the applicants at that stage pursuant to section 5.  They had a valid extension of the period of detention under section 4(3)(b) and it was their duty to hold the identification parade and for that purpose it was clearly necessary for them to further detain both applicants in the Garda station for the proper investigation of the offences of murder and robbery.  

	Section 4 of the Criminal Justice Act, 1984 gives statutory power to the Gardaí to detain arrested persons in Garda Síochána custody in certain circumstances.  It is a statutory provision and as such must be interpreted strictly and the Court must be very vigilant to ensure that the Gardaí fully comply with all the provisions of section 4 in regard to persons who have been arrested and detained pursuant to section 4 of the Act of 1984.  

	The Court is satisfied that in this case, in the exercise of section 4 subsection (3)(b), the Gardaí fully complied with the statutory requirements therein and were entitled to continue the detention of the applicants at Irishtown Garda Station until about 6.00 pm on the 16th February, when they were brought before the Court and charged, Mr. O'Toole being charged with murder and Mr. Hickey being charged with robbery.

	For these reasons the Court is satisfied that in respect of each of the applications this ground of appeal also fails."	
	
	Counsel for the applicant stresses the admonition of the Court of Criminal Appeal that the Court must be very vigilant to ensure that the Gardaí fully comply with all the provisions of section 4 of the Criminal Justice Act, 1984 with regard to persons who have been arrested and detained thereunder.  Any deprivation of a person's liberty must be subject to careful scrutiny.  Counsel points out that in the case of O'Toole and Hickey, while the applicants had made inculpatory statements, the investigation in respect of murder was still actively being pursued and the DPP was being kept informed as to the state of the investigation.  He contrasts the situation in the applicant's case in which the applicant  had been arrested at 8.55am  approximately and had made a confession before 10.30 am on 21st July, 1993.  Counsel stressed that there is no indication in the Affidavit by Garda Morrissey that he was in communication with the office of the Director of Public Prosecutions.  Counsel concedes that the Garda does say that on 24th November, 1993, having completed his investigations, he gathered together all the relevant statements he had obtained and submitted his report to the Director of Public Prosecutions seeking directions as to what further charges should be brought against the four arrested persons, including the applicant.  Nevertheless, Counsel stresses that the information given by the Garda was somewhat sparse as to what investigations he carried out between 21st July, 1993 and 24th November 1993.  Counsel for the applicant argued that the Criminal Justice Act, 1984 brought in an extension of the power of the Gardaí to arrest and detain.  By virtue of section 4(1) the suspected offence had to be of 3a serious nature attracting a punishment of imprisonment for a term of five years or more but with considerable safeguards being incorporated into the provisions with regard to the period of detention.  Counsel submitted that a literal and strict interpretation should be given to the provisions of section 4(5).  He urged that Section 4(5) does not give the Garda an option to charge an accused person at a later time, whether this would be reasonable or otherwise, once the Garda has enough evidence to charge the accused and the ongoing detention of the accused is not necessary for a continuing investigation.  In short, he submits that once the Garda has enough evidence he must charge the accused and either release him on station bail or bring him before the next sitting of the District Court or apply immediately to the member in charge of the station to authorise the continued detention of the accused while further investigations are ongoing if such circumstances are applicable.  Counsel contends that the Garda does not have any option to defer the bringing of a charge for a decision at a later stage.  He urges that the use of the words "without delay" means "immediately" and not "within a reasonable time" or "at a later stage".  If the Oireachtas had intended to afford the Garda a lapse of time within which to prefer the charge then this would have been stated; the words "without delay" should not be construed as meaning "within a reasonable time", or "later" because "within a reasonable time" or "later" connote some delay.  In support of this, he cited Re Joseph et al. v Minister of National Revenue 20 DLR (4th) 577.  This was a tax enforcement case brought in the Ontario High Court of Justice in which Galligan J. on 15th July, 1985 was dealing with the construction of section 231(3)(b) of the Income Tax Acts.  The provision authorised the Minister of National Revenue to require a lawyer to produce files relating to his client "within such reasonable time as may be stipulated" in a registered letter or a demand served personally on the lawyer.  A demand requiring a lawyer to produce files "without delay" was not authorised by section 231(3)(b).  In their ordinary sense the words "without delay" mean "immediately".  If Parliament had intended to authorise the requiring of immediate production it might reasonably have been expected to say so.  Even without the assistance of this Canadian authority referred to by Counsel, I would have no difficulty in accepting that the phrase "he shall without delay charge that person" on its face means that the Garda who has enough evidence to prefer a charge for an offence against a person detained under section 4 of the Criminal Justice Act, 1984 in a Garda Station must there and then charge the person detained unless that person is, with reasonable cause, suspected of another offence to which this section applies and the member in charge has reasonable grounds for believing that the continuance of the detention is necessary for the proper investigation of that offence.  I suspect that this subsection reflects the need to cope with the problem which arose in DPP v John O'Loughlin [1979] IR 85.  The accused had been arrested and detained in respect of the larceny of a muck-spreader.  He gave an explanation for his possession of the muck spreader and after making inquiries the Garda was satisfied that he was in a position to charge the accused.  However, because the Garda was also investigating cattle rustling in the vicinity, he delayed charging the accused for a number of hours while he pursued the investigation into the cattle rustling.  The Court of Criminal Appeal held that the detention of the accused became unlawful because he should have been charged in respect of the larceny of the muck spreader and brought before a Court.  
	In short, Counsel for the applicant contends that section 4(5) is mandatory and that, in a case of handling stolen property, in which the count now encompasses acts of dishonestly disposing of stolen property, the proofs would not have been complex in the applicant's circumstances, and accordingly he should have been charged there and then and there was no justification for an ongoing investigation over such a length of time.  
	The respondent contests this construction and submission with regard to section 4(5).  Counsel for the respondent points out that the first thirteen grounds at E in the statement are in reality a claim that the Circuit Criminal Court had no jurisdiction to try the applicant as a result of the fact that he was not charged promptly in accordance with section 4(5) of the Criminal Justice Act, 1984.  Counsel for the respondent points out that the non-compliance contended for by the applicant in respect of section 4(5) and his release only arose after his inculpatory confession had been made.  He argued that the applicant was properly before the Circuit Court and that, when the learned Circuit Court Judge was troubled by the legal point taken in respect of section 4(5), he simply discharged the jury so as to allow the parties to reflect upon the true construction of section 4.  The respondent refutes the construction put on section 4(5) by the applicant; he says that in reality the proposition being put forward by the applicant is that if an accused person provides sufficient evidence during the course of an investigation which would warrant a charge being placed against him, then the relevant member of the Garda Síochána has no jurisdiction to release that person.  He stresses that it would be an extraordinary proposition to say that a Garda cannot simply release a person who is being detained.  He maintains that at all times the Garda has power to release a person in custody, however guilty of the offence being investigated the Garda may regard the person as being.  It would lead to grave injustice if, for example, a pregnant shoplifter, with several children in her care, who was held in custody under section 4 were not simply to be released without being charged there and then, when she could, in due course at a less fraught time, be brought on a summons before the District Court.  Could it be suggested that an elderly person suffering from a terminal illness and suspected of an heinous crime and detained under section 4, and in respect of whom the Garda has sufficient evidence to charge, could not be released and subsequently brought before the Court at a later stage by way of summons?
	Counsel for the respondent says that in reality the applicant's first thirteen grounds are contending that the Circuit Criminal Court had no jurisdiction and accordingly prohibition should issue.  Counsel argues strenuously that the Circuit Criminal Court did have jurisdiction and that the applicant was properly before both the district and then subsequently the Circuit Criminal Court on a valid return for trial.  Even if there was any illegality arising from an alleged failure to comply with the provisions of section 4(5) then this would have no relevance to the lawfulness of his being before the Circuit Criminal Court.  Counsel relied on the decision of the Supreme Court in Derek Keating v The Governor of Mountjoy Prison [1991] 1IR 61 in which the Supreme Court upheld a decision of Barrington J. in the High Court in a case which involved section 4 of the Criminal Justice Act, 1984.  The issue involved the provision that when a Garda has enough evidence to prefer a charge against a person detained under section 4, he must without delay cause him to be charged unless the person is, with reasonable cause, suspected of another offence to which this section applies.  The applicant Keating was arrested by a member of the Garda Síochána on suspicion of an offence of larceny, but succeeded in escaping from the arresting Garda.   A warrant was subsequently issued for his arrest.  The applicant was later arrested at common law on the larceny charge by the same Garda, was brought to a Garda station and was informed that he was being detained under section 4 of the Criminal Justice Act, 1984.  During an interview at the Garda station the applicant confessed to the offence of larceny and was then interviewed about other offences to which section 4 did not apply.  The applicant was later brought to the District Court and was charged with the larceny offence.  At the District Court hearing the applicant's Solicitor submitted that, since there was no evidence that the member in charge of the Garda station had reasonable grounds for believing that the applicant's detention under section 4 of the Act of 1984 had been necessary for the proper investigation of the offence, the Court should hold that he had not been detained in accordance with law, that he was not lawfully before the Court and that he should, accordingly, be released.  That submission was rejected and the applicant was remanded into the custody of the respondent.  The applicant applied to the High Court for an order pursuant to Article 40(2) of the Constitution releasing him from custody.  The application was dismissed.  On the applicant's appeal against the judgment and order of the High Court it was held by the Supreme Court (Finlay C.J., McCarthy and O'Flaherty J.J.) at p. 61 in dismissing the appeal:  

	"1.	That the District Court had no jurisdiction to enquire into the lawfulness of the detention of a person before it, for the purpose of ordering that person's release from custody; such jurisdiction was confined, under Article 40 of the Constitution, to the High Court.  

	2.	That, on the trial of the applicant, the Court of trial would be entitled to enquire into the lawfulness of his detention only for the purpose of ruling on the admissibility of evidence alleged to have been obtained in breach of his constitutional rights.  

	3.	(Per McCarthy J., Finlay C.J. concurring) that, in a case where the circumstance of arrest of an accused was such as to amount to an affront to the role of the Courts in protecting and vindicating constitutional rights or where an outrage had been committed on an accused while in custody, the District Court would be entitled to decline jurisdiction and to order his release.  Per O'Flaherty J.:  That a Garda is required to make a fair assessment as to whether he has sufficient evidence to prefer a charge against a detained person and must then without delay cause him to be charged; provided such fair assessment is made, the Court should not substitute its own opinion as to the sufficiency of the evidence available to the Garda.
	At page 67 O'Flaherty J. said:- 

	"So the situation is that there was a valid arrest, a valid charge preferred in the District Court and a valid remand by the District Court.  But it is said that, once there is a challenge by an accused to the legality of his detention under section 4, the District Justice is required to satisfy himself that the detention is lawful because, if it is not, the accused's appearance before the District Court is tainted with unconstitutionality and the District Justice should decline jurisdiction and order the release of the accused.  It is conceded on behalf of the applicant that it would be permissible to have such an accused charged again.  

	It is, however, submitted that the proper sanction by which the Court should mark its disapproval of any breach of the procedures allowed by section 4 of the Act is to set an accused free.

	In my judgment, if there has been a breach of the procedures permitted by the section, that should be dealt with in the course of the proceedings in deciding what evidence is admissible and what is not.  The two points made about section 4 are, firstly, that if there is a challenge to the lawfulness of the detention, the member in charge of the station to which the arrested person has been brought should be available to give evidence concerning the reasonable grounds he had for believing that the suspect's detention was necessary for the proper investigation of the offence, and, secondly, that where the Garda has enough evidence to prefer a charge he should without delay charge the person; here the essential submission was that at an early stage in the interview the Garda had enough evidence to prefer a charge and that there was an element of delay in having the accused charged.  
	
	With regard to the first point, there will certainly be cases where, in order to render evidence obtained in the course of a suspect's detention admissible, it will be necessary to call the member in charge of the Garda station.  But not, I believe, to justify the bringing of charges in the first place.  With regard to the second point, Garda Ferris certainly had prima facie evidence of the identification of the accused with the crime but he was entitled to look for some corroboration of such evidence as he had.  The section requires the Garda to make a fair assessment, because it has to be said that the only certainty in a criminal trial is at the moment when a jury brings in a verdict.  So, provided the Garda makes a fair assessment of the evidence, in deciding whether it is enough to prefer charges, he should not be faulted even if a Court, or indeed another member of the Gardaí, might have reached a different conclusion as to the sufficiency of the evidence at his disposal at any particular stage of the suspect's detention at the Garda station.

	I am of the opinion, therefore, that the accused was lawfully before the Court and, as has been conceded, there can be no challenge to the validity of the remand order made by the District Justice........

	As I have said, if there was any irregularity in the course of the applicant's detention under section 4 - and I am not saying that there was any such irregularity - then that is a matter to be dealt with in the course of the proceedings."

	I would respectfully agree that it is preferable that such matters should be dealt with in the course of the trial when the evidential basis has been laid appropriately for such an application.  There is no suggestion in this case that there was a deliberate breach of the applicant's constitutional rights.  Accordingly, the District Court had jurisdiction to send the applicant forward for trial and the Circuit Court would have had jurisdiction to proceed with his trial.
	Counsel for the respondent submits that the provisions of section 4(5) do not preclude a release of the applicant by the Garda.  Furthermore, while the Garda may have conceded that he had evidence enough to bring a charge, nevertheless, the Director of Public Prosecutions is the prosecuting authority and he is entitled to bring a charge after due consideration of the contents of the file submitted to him.  In DPP v O'Toole and Hickey, the trial Judge stated:- "A subsequent prosecution is at the suit of the Director of Public Prosecutions and it must be for him to decide in those cases where his direction is sought, whether or not there is enough evidence to prefer the charge".  The Court of Criminal Appeal seems to have approved of this statement by the trial Judge.  It is to be noted that at paragraph 6 of his affidavit, Garda Morrissey says that on 24th November, 1993, having completed his investigations, he gathered together all the relevant statements he had obtained and submitted his report to the Director of Public Prosecutions seeking directions as to what further charges should be brought against the four arrested persons including the applicant.    No application has been made to cross-examine Garda Morrissey nor has there been any challenge to the veracity of paragraph 6 of his affidavit.  From his affidavit it would appear that Garda Morrissey wanted directions from the DPP in respect of the bringing of the charge.  This would appear reasonable when one notes the contents of the alleged confession and in particular the fact that the applicant never confessed to having touched the goods.  As for the statement from DPP -v- O'Toole and Hickey that "if it is shown that there are no longer reasonable grounds for suspecting the detainee of having committed the offence, he must be released.  If on the other hand, at the same time, there is enough evidence to prefer the charge, then he must be charged without delay", the respondent submitted that this should be read in the context of that case where the detention was continued.  This does not preclude the Garda from exercising the further option of releasing the detainee without charge in an appropriate case.  
	In State (McCormack) -v- Curran [1987] ILRM 225 at p. 237, Finlay C.J. made it clear that there were many factors to be taken into consideration by the DPP in giving his directions.

DECISION
	A prudent prosecuting authority will often not be satisfied with an inculpatory statement but will wish to compare this with other statements taken in respect of the same transaction and will also wish to study the other pieces of evidence available.  Section 4 of the Criminal Justice Act, 1984 is a lengthy section detailing the circumstances in which an accused may be detained.  Underlying the section is the assumption that if at any given stage in the procedure the relevant Garda makes a decision that the detainee should be released, then that person can be released and should not be further detained.  There is an underlying premise that where an arrest has been made on the basis of a reasonable suspicion but there is a lack of evidence which has been properly checked out in existence, a suspect ought to be released.  Such a course of action does not preclude the Gardaí from issuing a summons or obtaining a warrant or, in some instances, re-arresting without warrant at a later juncture should admissible evidence come to light.  In my view the provisions of section 4 of the Criminal Justice Act, 1984 are stated in mandatory form in the context of the continuing detention of a suspected person and apply in the context of that person not being released.  I have tested this proposition against the contention that the Garda should have charged the applicant on the day of his arrest while he was in detention pursuant to section 4.  The submission on behalf of the applicant is that there was sufficient evidence on the basis of the confession to warrant a charge being brought without delay; on this basis once the Garda had enough evidence to prefer a charge, then, if the applicant was not charged and remained in continuing custody, he would have been in unlawful detention.  Assuming the applicant was then in unlawful detention, could it be said that the Garda had no authority to release him there and then?  It seems to me that underlying the entire of the provisions of section 4 must be the assumption that at any stage in the procedure, the Garda may make a decision that the detainee should be released.  This accords with the spirit of section 4 which safeguards the rights of a person who is being kept in custody and to ensure the restoration of liberty with the minimum of delay where appropriate.
	Section 4 of the Criminal Justice Act, 1984 is to be read and construed against the background that the deprivation of a person's liberty for even one second is serious.  This view is reinforced by further considerations.  First, Section 10 of the Criminal Justice Act, 1984 makes provision for safeguards in respect of a person's rearrest.  However, there is the proviso in Section 10(2) that notwithstanding the safeguards in subsection 1, a person to whom that subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith.  All this seems to me to be consistent with the propriety of a Garda in appropriate circumstances, where his investigation is continuing, or there is serious ill health of an accused involved, or the exigencies of the family circumstances of an accused, or other good reasons exist, making it reasonable to take the view that the suspect should be released at once without charge.  Even where a power of arrest without warrant exists, the arrest of an offender may at times be avoided if a summons will suffice.  While this is particularly so with regard to  misdemeanours or summary offences, there are occasions when arrest should be avoided for less serious felonies where the name and address of the suspect are known and where it is likely, having regard to the nature and circumstances of the offence and the character of the accused, that he will answer to a summons.  In some American States it is provided by statute that an arrest without warrant even for felony is invalid, unless the officer has reasonable grounds to believe that the suspect may escape unless immediately arrested.  
	In O'Flynn -v- District Justice John P Clifford, The Director of Public Prosecutions and the Circuit Court Judge for Cork Circuit Court and Michael Hannigan -v- the Same Respondents [1988] IR 740 Gannon J. was dealing with an Application for Judicial Review by way of Certiorari and Prohibition.  Each of the applicants were charged in February 1988 with the commission of an offence in August 1986.  When the matter came before the respondent District Justice he expressed the opinion that the delay was unreasonable and inexcusable and he rejected as unsatisfactory the reasons which were offered for the delay.  He was not, however, given any assistance as to what effect, if any, the delay had had or could have on the trial of the accused, should they be returned for trial.  The respondent District Justice, accordingly, proceeded with the preliminary examination required by section 5 of the Criminal Procedure Act, 1967 and returned the accused for trial by orders made pursuant to section 8 of that Act (as amended) dated the 15th March, 1988.  No evidence was adduced before either the District Court or the High Court that the delay which had taken place might reasonably have had the effect of depriving the applicants of a fair trial.  It was held that there is an important distinction between the stage prior to the charging of an accused, when the matter of a crime is still being investigated, and the period after an accused has been charged.  In the former stage, a person has no legal right to have a charge made against him nor, therefore, to be brought before a court expeditiously or otherwise.  The courts have no function participating in the investigation or supervision of this stage of the criminal process.  Subsequent to a charge being made, the courts will not adopt or approve in any way a procedure invoking their jurisdiction if such procedure was found to be illegal or in breach of any of the accused person's rights.  Where it appears that an accused had been deprived of the right to a fair trial or disadvantaged in some way due to circumstances within the prosecution's control, such as unwarranted delay in bringing a charge, the court, in accordance with its obligation to vindicate the rights of the citizen, would refuse to sanction the unwarranted procedures.  At page 744 Gannon J. said :-

	"Having considered the authority of the State (O'Connell) -v- Fawsitt 1986 IR 362 and those of the cases referred to therein which were opened to me in court I observe what appear to me to be two significant factors.  The first of these is that it is not the fact of delay but rather the effect of delay which is a primary factor,  the test being whether or not the accused would have a fair trial.  The second factor is that in all the cases under consideration the applicant or appellant was a person who had been charged with a criminal offence and the delay complained of related to the delay in the period which followed the laying of the charge and before proceeding to trial.

	There is I think an important distinction between the stage before charge, when a matter of a suspected crime is being investigated, and the stage after an accused person has been charged and so is subjected to the directions of a court.  Before any charge of a criminal offence is preferred against a person there is a presumption of innocence, and the constitutional protection of his liberty and his good name.  He is entitled as a matter of fundamental right, antecedent to the Constitution, to the freedom of his person.  This right of freedom from unlawful detention is also protected by Article 40 of the Constitution.  In relation to the stage before charge the existence of a suspicion is not a sufficient basis for arresting a person.  However genuine or cogent the beliefs or suspicions held, a person may not be detained for the purpose of formulating a charge against him of a criminal offence or for the convenience of assembling evidence to support such a contemplated charge against him.  But from the time a criminal charge is made against a person resort to court procedure is obligatory and must be prompt.  The presumption of innocence is not simply a mere legal formality; it is a necessary corollary of the constitutional rights in Article 40 of the Constitution and of those basic human rights which are anterior to the Constitution.  The reality of the presumption of innocence is such that, in the absence of a charge laid, any expressed suspicions of a criminal offence could give rise to breach of the Constitutional guarantee of a good name and reputation (Article 40 Section 3 subsection 2) and might provide a cause of action for damages for defamation.  But the supposed existence of unexpressed suspicion of criminality in the mind of another in relation to a person cannot in law or in reason confer any rights cognisable by the courts upon the person to whom the suspicions relate.  A person who is a mere suspect (and therefore presumed innocent) has no legal right to have a charge made against him nor to have some legal process diligently or expeditiously pursued, by arrest or by summons, to bring him before a court.  The public interest and good sense require that every crime be properly investigated and that the offender be expeditiously brought to justice.  But the public interest also requires diligence and conscientious care in the investigation of crime, and the assembling and presentation of cogent evidence in support of a prosecution.  It is no part of the function of the courts to participate either in the investigation of criminal offences or in the supervisory direction of those engaged in that work.  The courts must remain detached and independent in relation to all matters antecedent to the laying of a charge against a person of a criminal offence.

	But the courts will not adopt nor approve nor assist any procedure, seemingly lawful in form, for invoking its jurisdiction if found to be in fact illegal or in breach of any constitutional right of an accused person.  If and when a person is charged before a court with a criminal offence the right of that person to a fair trial will be protected by the court.  The court cannot of its own motion investigate the circumstances leading to the laying of the charge or procedures of investigation.  But if it should appear to a court that an accused person was unlawfully detained without charge to facilitate the investigation and formulation of intended charges his immediate release would be ordered.  Equally if it should appear to a court that an accused person has been deprived of the right and opportunity of a fair trial or put to an unfair disadvantage in facing his trial by reason of circumstances in the control of the prosecution such as by unwarranted delay in bringing a charge the constitutional obligation on the courts to vindicate the rights of the citizen would require dismissal of the charges or other refusal to adopt the unwarranted procedures.  
	The particular circumstances in relation to the applicants in this matter are that they make complaint only of the delay preceding the preferral of any charges against them but not in relation to the process within the control of the courts subsequent to their being charged". 

	The applications for Certiorari and Prohibition were refused.  While Gannon J. was dealing with a different provision, I would respectfully agree with his view that before any charge of a criminal offence is preferred against a person there is a presumption of innocence and the person is entitled as a matter of fundamental right to the freedom of his person.  In my view the entire of Section 4 of the Criminal Justice Act, 1984 is based on the premise that the person being detained may at any stage be released prior to his being charged.  Once the applicant was released, he was no longer "detained in a Garda Station pursuant to this section", and he no longer had to be charged without delay.
	If I am incorrect in these views which I have expressed, then it seems to me that the apparently mandatory provision that the Garda "shall without delay charge that person" must be read subject to the proviso that this applies only if the person is being detained in breach of his right to liberty.  There should be attributed to Acts of the Oireachtas and to orders of the Courts a capacity and an intent to operate within constitutional limitations.

II.	The lapse of time between 21st July, 1993 when the applicant was released without charge and 30th June, 1994 when an application for a summons was made in the District Court.  

	Counsel for the applicant submits that the time lag between the 21st July, 1993 and the 30th June, 1994 is so long as to be prejudicial to the applicant.  No criticism is made of the time lag since 30th June, 1994.  The applicant has not sworn an affidavit and there is no allegation of any specific prejudice having been caused by the lapse of time.  The submission has been made for the applicant that the issue of guilty knowledge is of  importance in respect of the ingredients of handling stolen property and so the state of mind of the applicant at the time of the alleged offence is relevant.  The minutiae of what occurred at the interview may be of importance in respect of the admissibility of the alleged statement of the applicant.  However, in a general way, delay may cause prejudice to the applicant.  I would respectfully adopt the propositions set out at page 12 of the unreported judgment of Kelly J. delivered on 16th May, 1996 in Michael Gibbs v The President of the Dublin Circuit Criminal Court and the Director of Public Prosecutions:-

	"1.	There is no express constitutional right to a speedy trial contained in the Irish Constitution.
	2.	Article 38, section 1 of the Constitution provides that no person shall be tried on any criminal charge save in due course of law.  This constitutional entitlement has implicit in it an entitlement to a trial with reasonable expedition.
	3.	This implicit right to a trial with reasonable expedition is not lessened by the fact that it is derived from the general provision for a trial in due course of law rather than from a separate express provision of a right to a speedy trial. 
	4.	Delay between the date of an alleged offence and the date of a proposed trial may have the consequence of creating a real or probable risk that the Accused would be subjected to an unfair trial. 
	5.	The risk of being subjected to an unfair trial may arise in one of two ways:
		(a)	the delay may have been so excessive as to raise an inference that the risk of an unfair trial has been established as a reality, or 
		(b)  	actual or particular prejudice may be established arising from the delay which would render the trial unfair.
	6.	The onus of demonstrating a breach of the right to a trial with reasonable expedition and of the grounds warranting this Court's intervention lies at all times upon the Applicant.
	7.	In considering questions of this sort, the Court is entitled to take into account all of the circumstances of the case including, but not limited to, the complexity of the charges.
	8.	In considering the circumstances, it must be borne in mind that the Applicant is entitled to the presumption of innocence and the right to silence."

	Applying these propositions to the present case, the onus is on the applicant to show that he has been unduly prejudiced by the lapse of time.  It is significant that there was no application to cross-examine or challenge Garda Morrissey on the contents of his affidavit.  Seven months did elapse between Garda Morrissey, having completed his investigations, gathering together all the relevant statements and submitting the file to the DPP.  Directions were received back on the 22nd June, 1994 and summonses were promptly applied for and matters were then processed.  There was a time lag of some seven months between 24th November, 1993 and 22nd June, 1994 but no cross-examination was directed towards establishing what, if any, further information the DPP required before making his decision.  Counsel for the applicant relied on DPP v Barry Byrne [1994] 2 IR 236 and in particular the principle that in cases where a delay had occurred that amounted to a breach of the defendants' constitutional right to a reasonably expeditious trial no proof of actual or presumptive prejudice was required.
	In DPP v Byrne the Supreme Court was dealing with an offence contrary to section 49 of the Road Traffic Act, where even a short delay could affect the recollections of an accused person with regard to the technical procedures and steps taken in the Garda station when each procedure and transaction would be significant to the outcome of a prosecution.  In the applicant's case, involving dishonest handling, I think different considerations prevail and the state of mind and the knowledge of the circumstances of the situation would be less likely to be affected by passage of time.  
		The need for reasonable expedition in the trial of a criminal charge was succinctly identified by the judgment of the Supreme Court of the United States in Barker v Wingo 1972 407 US 514 where Powell J. at page 532 stated as follows:-

	"Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.  This court has identified three such interests:

	(i)	to prevent oppressive pre-trial incarceration;
	(ii)	to minimise anxiety and concern of the accused; and
               	(iii)	to limit the possibility that the defense will be impaired."
	In the applicant's circumstances there can be no suggestion of oppressive pre-trial incarceration.  There is no allegation of specific prejudice in the case of the applicant nor has he sworn any affidavit in this respect or otherwise.  However, it is clear from DPP v Byrne that inordinate delay in itself can be prejudicial and can give rise to the necessity for a Court to protect the constitutional right of the accused by prohibiting a trial even where it could not be established either that the delay involved an oppressive pre-trial detention, or that it created a risk that the accused's capacity to defend himself would be impaired.  The applicant is charged with an indictable offence and so there is no six month time limit.  Counsel for the respondent has submitted that there is no case in which the High Court has said that a delay of twelve months with regard to an indictable offence is enough to warrant a prohibition.  It is significant that in the applicant's case the lapse of time has been less than twelve months; for a seven month period directions were awaited from the office of the DPP.  No complaint about delay was made in the District Court on 27th July, 1984 nor was any application made to cross-examine the Garda with regard to whether the DPP sought further information from him during the seven month period.  Finally, whereas the charge in DPP v Byrne was under the Road Traffic Act and would require recollection with regard to technical proofs, there would appear to be little unusual about the count with regard to handling stolen property.  Besides, the applicant was aware of the prospective charge within days of the alleged offence and could then have dredged his memory with regard to his transactions at that time.  Counsel for the respondent pointed to the fact that in Cahalane v Judge Murphy and The DPP [1994] 2 IR 262 the situation was that the evidence was available three years before a charge was brought and nearly seven years elapsed between the date of the offence and the trial in the Circuit Court.  Furthermore, a crucial witness had died in the meantime.  

CONCLUSION
	The applicant has failed to satisfy me that in the circumstaces there has been any breach of his right to a trial with reasonable expedition.  I am not satisfied that there are any grounds warranting this Court's intervention by way of prohibition.  In cases of delay if the lapse of time is a long one, then it may be inferred that a fair trial is no longer possible.  I refute the suggestion that the time lag of some seven months in this case is such that it would be legitimate for the Court to infer unfairness without proof of any specific prejudice.  Taking into account the comparatively short length of the delay, the reason for the delay in that directions from the DPP were being awaited, the lack of any complaint by the applicant in respect of the delay and the lack of any evidence of prejudice being caused to the defendant, it seems to me that the applicant fails in his quest for prohibition on grounds of delay.  
	For all the reasons given, the application for prohibition should be dismissed.

Cases referred to:-

DPP -v- Terence O'Toole & James Hickey CCA Unrep., 20th July 1990, Hederman J.
Re Joseph et al. -v- Minister of National Revenue, 20 DLR (4th) 577
The People (DPP) -v- John O'Loughlin [1979] IR 85
Keating -v- The Governor of Mountjoy Prison [1991] 1 IR 61
State (McCormack) -v- Curran & Ors [1987] ILRM 225
O'Flynn -v- District Justice Clifford & Ors [1988] IR 740
Gibbs -v- The President of the Dublin Circuit Criminal Court and the DPP, H.C., Unrep., 16th May 1996, Kelly J.
DPP -v- Barry Byrne [1994] 2 IR 236
Barker -v- Wingo [1972] 407 US 514
Cahalane -v- Judge Murphy and The DPP [1994] 2 IR 262