Braney v Special Criminal Court

• Jurisdiction: Ireland
• Judge: O'Donnell J.,Charleton J.,O'Malley J.
• Judgment Date: 30 July 2020
• Neutral Citation: [2020] IESCDET 95
• Date: 30 July 2020
• Court: Supreme Court
• Docket Number: S:AP:IE:2020:000064

BETWEEN

KEVIN BRANEY

APPLICANT

AND

THE SPECIAL CRIMINAL COURT

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

[2020] IESCDET 95

O'Donnell J.

Charleton J.

O'Malley J.

S:AP:IE:2020:000064

2018 No. 872 JR

SUPREME COURT

DETERMINATION

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicant to appeal to this Court directly from the High Court.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 23 rd April, 2020

DATE OF ORDER: 12 th May, 2020

DATE OF PERFECTION OF ORDER: 15 th May, 2020

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 3 rd June, 2020 AND WAS IN TIME.

General Considerations

1 The general principles applied by this court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134, (Unreported, Supreme Court, 6 December 2017) and in a unanimous judgment of a full court delivered by O'Donnell 1 in Quinn Insurance Ltd. v. PricewaterhouseCoopers [2017] IESC 73, [2017] 3 I.R. 812. The additional criteria required to be met in order that the so-called leapfrog appeal directly from the High Court to this court can be permitted were addressed by the court in Wansboro v. Director of Public Prosecutions [2017] IESCDET 115, (Unreported, Supreme Court, 20 November 2017). Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2 Furthermore, the application for leave filed and the respondent's notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in any detail. No aspect of this ruling has precedential value as a matter of law.

Decision

3 This is an application for leave to appeal to this court pursuant to Article 34.5.4° of the Constitution (a leapfrog appeal) from the High Court decision of the 23 ^rd of April, 2020, dismissing the applicant's challenge to the constitutional validity of s. 30(3) of the Offences Against the State Act 1939 and the applicant's contention that this section was incompatible with the European Convention on Human Rights (“E.C.H.R.”). The State respondents have indicated that they are not opposing the grant of leave and that it is a matter for the court. The notice party has indicated that she would wish to participate in the appeal if leave is granted.

4 The applicant challenges the validity of s. 30(3) of the Offences Against the State Act 1939, permitting the extension of a detention of a person arrested under s. 30 on the authorisation of “an officer of the Garda Síochána not below the rank of Chief Superintendent”, which, it is alleged, is insufficient by analogy with the decision of this court in Damache v. D.P.P. & Ors. [2012] IESC 11, [2012] 2 I.R. 266, and further contends that the fact that a person arrested under s. 30 is treated...