Barry O'Brien v Special Criminal Court

JurisdictionIreland
JudgeFENNELLY J. & Denham J.
Judgment Date24 October 2007
Neutral Citation[2007] IESC 45
CourtSupreme Court
Docket Number[S.C. No. 349 of 2005]
Date24 October 2007

[2007] IESC 45

THE SUPREME COURT

Murray C.J.

Denham J.

Fennelly J.

[SC No. 349/2005]
O'Brien v Special Criminal Court & DPP

BETWEEN

BARRY O'BRIEN
Appellant

And

THE SPECIAL CRIMINAL COURT and THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondents

OFFENCES AGAINST THE STATE ACT 1939 S2

CRIMINAL LAW ACT 1997 S4

OFFENCES AGAINST THE STATE ACT 1939 S30A(1)

OFFENCES AGAINST THE STATE ACT 1939 S21

OFFENCES AGAINST THE STATE ACT 1939 S30A

OFFENCES AGAINST THE STATE ACT 1939 S43

OFFENCES AGAINST THE STATE ACT 1939 S47

CRIMINAL LAW ACT 1997 S4(3)

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S11

OFFENCES AGAINST THE STATE ACT 1939 S43(1)

BIRNEY & ORS v DPP UNREP CCA 12.5.2006 2006 IECCA 58

DPP, PEOPLE v MCCANN 1981 2 FREWEN 57

OFFENCES AGAINST THE STATE ACT 1939 S47(1)

CRIMINAL JUSTICE ACT 1951 S15(2)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S18

OFFENCES AGAINST THE STATE ACT 1939 S30A(3

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S4

OFFENCES AGAINST THE STATE ACT 1939 S29

OFFENCES AGAINST THE STATE ACT 1939 S30

CONSTITUTION ART 38.3

EMERGENCY POWERS BILL 1976, IN RE 1977 IR 159

GILLIGAN v SPECIAL CRIMINAL COURT,DPP, IRELAND & AG 2006 2 IR 389

OFFENCES AGAINST THE STATE ACT 1939 S47(3)

OFFENCES AGAINST THE STATE ACT 1939 S30(4)(c)

OFFENCES AGAINST THE STATE ACT 1939 S45

CRIMINAL JUSTICE ACT 2006 S187(b)(ii)

Abstract:

Criminal law - Special Criminal Court - Arrest - Charge - Judicial review - Whether applicant charged "forthwith" - "As soon as practicable" - Offences Against the State Act 1939, ss. 30A, 43 and 47 - Offences Against the State (Amendment) Act 1998, s. 11

The applicant was facing trial in the Special Criminal Court on the charge of membership of an unlawful organisation. He appealed from the decision of the High Court where it was held that the Special Criminal Court had jurisdiction, the applicant was lawfully before it, and his trial should proceed.

Held by Supreme Court (Murray CJ, Denham and Fennelly JJ) in allowing the appeal and declaring that the Special Criminal Court had no jurisdiction to try the applicant on the charge that the law required that the applicant be charged "forthwith" upon his arrest and that was not done. Therefore, his detention prior to charging was unlawful. As a result, he was not lawfully brought before the Special Criminal Court.

Reporter: R.W.

1

JUDGMENT delivered on the 24th day of October, 2007 by FENNELLY J. & Denham J.

2

1. Barry O'Brien, the applicant/appellant, hereinafter referred to as 'the applicant', has appealed to this Court from the order and judgment of the High Court (MacMenamin J.) given on the 28th day of July, 2005, whereby the applicant's application for judicial review was declined, and where it was held that the Special Criminal Court had jurisdiction, that the applicant was lawfully before it, and that his trial should proceed.

3

2. The applicant is facing trial before the Special Criminal Court on the charge of membership of an unlawful organisation on the 6th April, 2004, pursuant to s.2 of the Offences Against the State Act, 1939 to 1998.

4

3. It is the applicant's case that the Special Criminal Court has no jurisdiction to try him on the charge because he is not lawfully before the Special Criminal Court for trial under the Offences Against the State Acts, 1939 to 1998 and that the decision of the Special Criminal Court of the 14th December, 2004 was ultra vires the powers of the Special Criminal Court. On behalf of the applicant it was submitted that he was not lawfully before the Special Criminal Court:-

5

(i) Because the arrest power used to make him amenable to the Court, s.4 of the Criminal Law Act, 1997, has no place in the special statutory code which governs the jurisdiction and procedures of the Special Criminal Court.

6

(ii) Even if this Court does not uphold that submission it was contended that that section does not authorise the detention of any person for the purpose of making him amenable to be charged at a later date.

7

(iii) It was submitted that the means used in this case were prohibited by s.30(A)(1) of the Offences Against the State Act, 1939 to 1998.

4. Leave to apply for Judicial Review
8

On the 17th January, 2005 the applicant was given leave to apply for judicial review for the following reliefs:-

9

(a) Certiorari, quashing the decision of the Special Criminal Court, made on the 14th December, 2004, that the applicant is not unlawfully before the Special Criminal Court on the charge of membership of an unlawful organisation on the 6th day of April, 2004 under section 21 of the Offences Against the State Act, 1939 to 1998.

10

(b) Declaration by way of Judicial Review that the Special Criminal Court has no jurisdiction to try the applicant on the charge of membership of an unlawful organisation under section 21 of the Offences Against the State Act, 1939/98, because the applicant is unlawfully before the Special Criminal Court.

11

The grounds for the application were:-

"The Special Criminal Court has no jurisdiction to try the Applicant on the aforesaid charge of membership of an unlawful organisation under section 21 of the Offences Against the State Act 1939, because the Applicant is not lawfully before the Special Criminal Court for trial under the Offences Against the State Act 1939/1998, and the decision of the Special Criminal Court made on the 14th day of December, 2004, to the contrary, was ultra vires the Special Criminal Court."

5. The High Court
12

In a judgment delivered on 28th July, 2005 the High Court, having reviewed the law and the facts, held:

"In the light of the foregoing, and having regard to the specific circumstances of this case, the Court will hold that the direction of the Director of Public Prosecutions was sufficient to invoke the jurisdiction of the Special Criminal Court and to preclude the jurisdiction of the District Court. Again having regard to the time sequence, the totality of circumstances, the absence of any evidence of mala fides or prejudice and the convening of the Special Criminal Court at 12 midday on the following Friday this Court will hold that on the facts the applicant has been brought before the Special Criminal Court within a time frame which may be interpreted as immediately and certainly as soon as was practicable.

It follows from these findings that the Court will hold that the Special Criminal Court has jurisdiction, that the applicant is lawfully before it, and that the trial should be permitted to proceed in accordance with law. The Court will therefore decline the application for judicial review."

6. Grounds of Appeal
13

The applicant has appealed against that decision of the High Court, filing twenty five grounds of appeal. At the core of this appeal is the query as to how a person may be 'lawfully brought' before the Special Criminal Court. May a person be lawfully brought before the Special Criminal Court only by way of provisions of the Offences Against the State Acts? Or, may the provisions of the general criminal law be used by the authorities? And, is s.30A of the Offences Against the State Act, 1939 to 1998 applicable? If it is applicable, what is the meaning of 'forthwith'?

7. The Law
14

The Offences Against the State Act, 1939, s.43, provides:

15

2 "43.- (1) A Special Criminal Court shall have jurisdiction to try and to convict or acquit any person lawfully brought before that Court for trial under this Act, ...:-

16

[the emphasis is added]

17

The key words are "lawfully brought". I shall return to these words later in the judgment.

18

Section 47 refers to the bringing of a person before the Special Criminal Court. It provides:

19

2 47.- (1) Whenever it is intended to charge a person with a scheduled offence, the Director of Public Prosecutions may, if he so thinks proper, direct that such person shall, in lieu of being, charged with such offence before a justice of the District Court, be brought before a Special Criminal Court and there charged with such offence and, upon such direction being so given, such person shall be brought before a Special Criminal Court and shall be charged before that Court with such offence and shall be tried by such Court on such charge.

20

(2) Whenever it is intended to charge a person with an offence which is not a scheduled offence and the Director of Public Prosecutions certifies that the ordinary Courts are, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, the foregoing sub-section of this section shall apply and have effect as if the offence with which such person is so intended to be charged were a scheduled offence.

21

(3) Whenever a person is required by this section to be brought before a Special Criminal Court and charged before that Court with such offence, it shall be lawful for such Special Criminal Court to issue a warrant for the arrest of such person and the bringing of him before such Court and, upon the issue of such warrant, it shall be lawful for such person to be arrested thereunder and brought in custody before such Court."

22

Relevant law on arrest is to be found in s.4(3) of the Criminal Law Act, 1997, which provides:-

"Where a member of the Garda Síochána, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence."

23

The issue of rearrest is addressed in the Offences Against the State Act, 1939 s.30A, which was inserted by s.11 of the Offences Against the State (Amended) Act, 1998. This section provides:-

"The following section is hereby...

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