“Incomplete, Imprecise And Misleading”


Today’s Irish Daily Mail; Jobstown protest in 2014; Ken Purcell arriving at the Criminal Courts of Justice in Dublin last month

Further to a jury last Thursday returning a unanimous ‘not guilty’ verdict to the Jobstown protesters – who had been charged with the false imprisonment of former Tánaiste Joan Burton and her adviser Karen O’Connell…

It’s being reported that on Friday, two superintendents who recommended to the DPP that the protesters be charged with false imprisonment – an offence which carries a penalty of up to life imprisonment – were promoted.

In today’s Irish Daily Mail, Journalist Ali Bracken reports:

The two superintendents who recommended that the recently acquitted Jobstown protesters be charged with false imprisonment have been promoted to the rank of chief superintendent.

Superintendents Brian Sutton and Peter Duff, both based in Dublin Metropolitan Region South, led the investigation into the so-called Jobstown Seven.

…On Friday, 15 superintendents were informed that they have been promoted to the rank of chief superintendent following an interview selection process. Their appointments were made by the independent Policing Authority.

Further to this.

Readers will recall how the false imprisonment charges against one of the Jobstown protesters, Ken Purcell, were dropped on June 12 after Judge Melanie Greally ruled that an extension to Mr Purcell’s detention was unlawful.

Mr Purcell had been arrested at his home in Tallaght at 7.28am on February 13, 2015, by Garda Darren Rooney.

Mr Purcell’s initial detention was authorised by Sergeant Carlin Cullen – based on information Garda Rooney gave Sgt Cullen which he had obtained from viewing video footage, and information which Judge Melanie Greally later found to be “inaccurate and exaggerated”.

On February 13, 2015, Mr Purcell’s detention was extended by Supt Peter Duff, at 1.11pm, also based on information given to him by Garda Rooney. This extension was found to be unlawful.

Judge Greally ruled:

The information imparted by Garda Rooney was based on his viewing of video footage and for the purposes of this application can be divided into three limbs. The first limb is the description of the accused at two stages where he is said to have struggled with gardaí.

The second is an account of the accused behaving aggressively in front of the jeep when it was attempting to leave the grounds of Saint Thomas’s Church and the third is what is accepted to be accurate information concerning his participation in a sit down in front of the jeep on Fortunestown Road.

In Garda Rooney’s description of Kenneth Purcell’s conduct around the Avensis he stated he was start of the crowd and could be seen struggling with gardaí. Similarly, during the transfer from the Avensis to the garda jeep he was said to have struggled with gardaí.

A viewing of the footage by this Court showed no identifiable physical engagement between the accused and any member of An Garda Síochána, either at the Avensis or during the transfer.

A more accurate appraisal of his actions during the transfer from the Avensis to the jeep is that he can be seen in the footage moving from a somewhat peripheral position towards the advancing group of gardaí and protesters and he is subsequently visible in the thick of it.

Therefore the information imparted to Sergeant Cullen in this regard was inaccurate and exaggerated.

The second limb is Garda Rooney’s evaluation and description of the accused’s conduct in front of the jeep as being extremely aggressive.

This appraisal of Mr Purcell’s behaviour is undoubtedly subjective; however it is in my view tenable in the context of the overall behaviour around the jeep.

The last limb is the information regarding Mr Purcell’s participation in the sit down on Fortunestown Road, which is not in dispute. It is agreed that in deciding this issue the Court must look to the subjective evaluation of the information by the decision maker, namely Sergeant Cullen.

Sergeant Cullen maintained that all the elements of information imparted to her formed the basis of her decision. In view of this, Mr O’Higgins states that if one of the elements is stated to have been erroneously described the basis laid for the detention is therefore erroneous and the detention is consequently unlawful.

There are two particular elements of the evidence which assist me in deciding this ground. The first is that the offence for which his detention was being sought and which was subsequently authorised was that of false imprisonment.

The errors in Garda Rooney’s description are not germane to the conduct which was said to constitute false imprisonment, namely sitting in front of the jeep on Fortunestown Road. If the misdescription of the accused’s conduct related to his conduct on Fortunestown Road, I’m of the view that the basis for the detention would have been irredeemably flawed.

Having listened to and observed Garda Rooney I’m of the view that he held a genuine and bona fide belief that the footage showed what he described to Sergeant Cullen. I’m also of the view that Sergeant Cullen had no reason to question what she was told and that the decision was, on its face, a lawful exercise of the power to detention.

Section 4 of the Criminal Justice Act has been on the statute book since 1984 and is one of the most routinely used sections available to gardaí in the exercise of their powers. It is somewhat surprising that in 33 years since its enactment there is no judicial statement dealing with this particular point.

The absence of such an authority suggests to me that the rigid approach advocated by Mr O’Higgins is not the correct approach to be applied in addressing section 4 and I am satisfied that the detention of Mr Purcell pursuant to section 4 was lawful.

The second three grounds relate to the decision of Superintendent Duff to extend the detention of Ken Purcell, a decision which was taken by Superintendent Duff at 1.11 pm following a conversation with Garda Rooney. For the purpose of this ground, the first six hour period of the accused’s detention has been scrutinised and for the purpose of this ruling I have once more reviewed the custody record.

The inescapable conclusion is that the investigating team applied no sense of urgency to the investigation. The casual, almost languid approach to initiating the interviews is inexplicable in the context of an arrest which was pre-planned and carried out at 7.28am with a sense of great purpose and expedition.

This point leads into the next or feeds into the next point which relates to the propriety of the decision to suspend the first interview which commenced with Mr Purcell at 11.18 in response to a request by Mr Purcell to see his solicitor arising from his concerns about the interview being remotely monitored.

Mr O’Higgins maintains that the interview should have proceeded in view of the fact that Inspector Maguire regarded it as his absolute entitlement to remotely monitor and, regardless of what advice Mr Purcell received, there was an intention to proceed with the remote monitoring of the interviews.

Mr O’Higgins suggests that the gardaí should have simply persisted with the remote monitoring, irrespective of the wishes of the accused to see a solicitor and he also suggests that if their interests lay in placating Mr Purcell that end could and should have been achieved by continuing the interviewing in the conventional way, allowing Mr Purcell to consult with a solicitor once he arrived and then proceeding to remotely monitor the interviews.

The suggestion that the remote monitoring was in any way concerned with the welfare of the suspect as Sergeant Duff had stated to Mr Purcell is not, in my view, a tenable proposition.

There is undoubtedly merit to the arguments advanced in respect of this ground. However, this ground of itself would not lead me to conclude that the extension of Mr Purcell’s detention was not necessary and should not have been sought or granted.

However, it does feed into the next and final point; Superintendent Duff was given the clear impression that the need to extend the accused’s detention arose from the length of time which had been required to allow the accused reasonable access to his solicitor.

Superintendent Duff was not aware that a request for legal advice had not featured in any shape or form during the first three hours of the accused’s detention and he was manifestly unaware of the inexplicable lack of meaningful progress made by the investigating team during the first three hours of the accused’s detention.

It is the Court’s view that, putting it mildly, the first three hours of the accused detention, were not put to efficient use and as a consequence I conclude that Garda Rooney’s account to Superintendent Duff of the progress of the investigation was incomplete, imprecise and misleading.

In view of Superintendent Duff’s unequivocal and affirmative response to the Court’s question regarding whether the prevalence of significant periods of wasted time would have influenced his detention to extend a suspect or would influence his decision to extend a suspect’s detention, I have concluded that the extension of the accused’s detention was therefore unlawful.

Previously: Jobstown NOT Guilty

And Then There Were Six

Rollingnews and John Wallace

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6 thoughts on ““Incomplete, Imprecise And Misleading”

  1. Kdoc1

    That’s Ireland for ya. Garda Rooney did the donkey work and he hasn’t been promoted yet!

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