Dermot Ahern (Louth, Fianna Fail)

The purpose of explicitly stating in statute that no issue as to the lawfulness of the arrest or detention of a person to whom an extension of time application relates may be raised, is to counter a growing tendency in recent years on the part of the suspect to try to turn the hearing into a hearing on the lawfulness of his or her arrest or detention. This has a number of undesirable consequences.

First, such matters are outside the jurisdiction of the lower courts, with one exception being where there is a glaringly obvious problem with the arrest, which the judge must be permitted to fix. This is the judgment of the Supreme Court as set out in the Keating case in 1990. The qualifying words in the text of the Bill, "save where any rule of law requires such an issue to be determined by the court", are intended to capture this exception.

Second, this attempt to shift the focus of the hearing leads to unnecessarily prolonging hearings and affects the conduct of investigations. Gardaí who should be carrying on with the investigation are being diverted from that work in order to be available at the courthouse to give evidence about the arrest and detention. I stress that there is nothing in this Bill which prevents the making of an Article 40 application to the High Court. In the Keating judgment against the governor of Mountjoy Prison, delivered in July 1990, the Supreme Court Judges Finlay, McCarthy and O'Flaherty, in dismissing the appeal, held that the District Court has no jurisdiction to inquire into the lawfulness of the detention of a person before it for the purpose of ordering that person's release from custody. Such a jurisdiction was confined under Article 40 of the Constitution to the High Court. That is the rationale behind what we are doing in this part of the Bill.