Supreme Court: Man wins appeal over rearrest after almost five years at large

About this case:

• Citation:
  [2019] IESC 31
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Liam McKechnie

Background 

In November 2008, Mark Finnegan was convicted of an offence under section 112(1)(b) of the Road Traffic Act 1961 in “allowing himself to be carried in a mechanically propelled vehicle without the consent of the owner”. In May 2009, at Trim Circuit Criminal Court he received a 16-month sentence. He was placed in Wheatfield Prison, and was transferred in July 2009 to Shelton Abbey Open Centre, an open prison with low security.

In 2009, Mr Finnegan escaped from custody at Shelton Abbey by leaving the premises without permission. From this point, “he was unlawfully at large, and so the prison authorities notified Arklow Garda Station”. Through human error his escape did not appear on the Garda PULSE system, and so no nationwide alert was raised. He returned to his family home and continued living there. He registered for social welfare using that address. In 2011, he moved to a new address to live with his partner and continued living there until his arrest in 2014. He again claimed social welfare from this address.

Gardaí first attempted to locate Mr Finnegan in June 2014, four years and seven months after he escaped. In August and November 2014, gardaí spoke to Mr Finnegan. It was claimed that he denied his identity during those conversations. On 10 November 2014, Mr Finnegan presented at Tallaght Garda Station on request. There, he was arrested and detained in Wheatfield Prison in relation to the sentence imposed on him in May 2009.

Litigation

Mr Finnegan brought proceedings in the High Court seeking a declaration that his re-arrest was unlawful on the basis of unconstitutional delay. The declaration was granted by Ms Justice Úna Ní Raifertaigh.

The Court of Appeal overturned that declaration, with Mr Justice John Hedigan giving the judgment of the court. The judge said that the delay in the arrest was due only to human error. The court observed that whatever the failings of the gardaí, the only credit that could be given to Mr Finnegan was that he had not re-offended since his escape from custody. However, the “escape was in itself an indictable offence and a serious breach of trust in that he had been allowed to transfer from Wheatfield to Shelton Abbey”.

Mr Finnegan appealed to the Supreme Court. The court was asked to decide “whether there are any circumstances in which delay on the part of An Garda Síochána in arresting an absconding prisoner can render his arrest and subsequent detention unlawful”.

He relied on a number of judgments to support his proposition that “the exercise of the coercive powers of the State carries with it an obligation to exercise those powers with constitutional fairness”. He submitted that Ms Justice Ní Raifertaigh was correct in finding that the State was obliged to act “with reasonable expedition” due to the fair procedures rights in matters concerning liberty and trial rights guaranteed by Bunreacht na hÉireann. He argued that those rights “are not extinguished upon conviction and lead to corresponding duties on the part of the State in the exercise of its powers”.

The Superintendent of Tallaght Garda Station and the Governor of Wheatfield Prison, the respondents, said that Mr Finnegan had attempted to minimise his conduct by the mischaracterisation of his escape as merely “walking out without permission”. They argued that the escape was in itself an indictable offence and a serious breach of trust. Further, he remained unlawfully at large for four years and seven months; during which time he was evading justice. They submitted that when he was finally identified, he misled the gardaí as to his identity.

Supreme Court judgment

Mr Justice William McKechnie, giving the judgment of the Supreme Court, cited the decision of Mr Justice Paul Carney in in Dunne v DPP (Unreported, High Court, Carney J., 6 June 1996) in which there had been a delay of over two years in executing an arrest warrant. He was satisfied that the attempts by gardaí to identify Mr Dunne meant that there was no unreasonable delay in his arrest:

Mr Justice McKechnie said that this statement reflected the public interest in the rule of law being upheld.

Applying that criteria to the facts of the present case, Mr Justice McKechnie noted that Mr Finnegan knew that he was unlawfully at large: “At no time after that event took place could he have been under any misapprehension in that respect.” However, he found that the “admitted delay” of almost four-and-a-half years before any attempts were made to locate him, the fact that he lived openly and in the locality of his family, that he “engaged in family life and had a daughter with his partner” were all things which the court must consider. He held that “notwithstanding the seriousness of absconding and remaining at large unlawfully, I believe that the factors otherwise identified would make it not simply unjust but also oppressive and invidious to have him returned to serve the balance of his sentence.”

The appeal was allowed.