COURT CLEARS WAY FOR REARREST 'CANNABIS FIVE'

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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