The Gazette 1983

GAZETTE

MAY 1983

taken to the Richmond Hospital. He remained there for

another nine days. On his discharge from the hospital he

was again arrested and brought before the Special

Criminal Court, charged with offences and later found

guilty.

'Illegal Arrests'

It was submitted on behalf of the accused O'Shea that

the accused had been arrested in the forest and brought in

custody to the Regional Hospital Galway where he

remained until he was discharged some seven days later. It

was submitted that the "arrest" in the forest and

subsequent custody were illegal. There was evidence at the

trial of the accused that the accused had been first arrested

on discharge from the Galway Regional Hospital pursuant

to Section 30 of the Offences Against the State Act 1939.

Counsel for the accused had submitted that this arrest on

discharge from the Regional Hospital was unlawful and his

subsequent detention was illegal.

It was argued that the manner in which the Gardai

brought the applicant O'Shea from the forest to hospital

and treated him while in hospiral "exhibited all the

characteristics of, and incidence of, an arrest" and that the

applicant was not free to leave their custody nor told he

could leave. In evidence it had been established that his

room was under armed police guard.

The Gardai strongly denied that they had arrested him

in the forest. The Court of Trial accepted their evidence

and stated that it was satisfied beyond a reasonable doubt

that the accused had not been arrested in the forest either

at common law or under Section 30 of the Offences

Against the State Act 1939. The Court of Criminal Appeal

held that this finding could not be challenged. The Court

stated that although the Gardai had a duty to arrest the

applicant once they had good ground for charging him

with the serious crimes

(Creagh v. Gamble*

)

the Gardai

were entitled to postpone the implementation of that duty

in view of the suspect's urgent need for medical treatment.

The Special Criminal Court found that the applicant

"willingly and voluntarily" remained in Galway Regional

Hospital until the time he was discharged by the hospital

authorities. The Special Criminal Court found as a fact

that he had not been detained in hospital against his will.

The Court of Criminal Appeal also stated that although in

certain circumstances armed gardai may be in the vicinity

of a suspect, to ensure,

inter alia,

that he does not escape,

this does not in itself mean he is in garda custody.

In support of the submission on behalf of the applicant,

the Court of Criminal Appeal was referred to a statement

by Henchy J in

The State (Walsh) v. McGuire

"As an arrest means a physical act done with a view to

detention, and since the accused was already arrested

and in detention, this cannot have been an arrest in

law."

The Court of Criminal Appeal stated that Mr. Justice

Henchy was referring to a situation where a person was in

lawful detention and to the purported second arrest of such

a person, whereas in this case it had been argued that the

applicant was in unlawful custody.

The Court held that the applicant was never in Garda

custody until his arrest outside his room in the Galway

Regional Hospital. So the argument as to the invalidity of

the arrest failed.

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