Braney v The Special Criminal Court

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Barr
Judgment Date23 April 2020
Neutral Citation[2020] IEHC 222
Docket Number[Record No. 2018/856 JR]
Date23 April 2020
BETWEEN
KEVIN BRANEY
APPLICANT
AND
THE SPECIAL CRIMINAL COURT, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY

[2020] IEHC 222

Barr J.

[Record No. 2018/856 JR]

THE HIGH COURT

JUDICIAL REVIEW

Declaratory relief – Offences Against the State Act 1939 s. 30(3) – Validity – Applicant seeking a declaration that s. 30(3) of the Offences Against the State Act 1939 is invalid – Whether s. 30 of the 1939 Act is repugnant to the Constitution

Facts: The applicant, Mr Braney, sought a declaration from the High Court that s. 30(3) of the Offences Against the State Act 1939 is invalid having regard to the provisions of the Constitution of Ireland, 1937 and in particular having regard to the provisions thereof guaranteeing the right to a fair trial, the right to silence and the right to liberty. The applicant also sought a declaration pursuant to s. 5(1) of the European Convention on Human Rights Act 2003, that s. 30(3) of the 1939 Act is incompatible with the obligations of the State pursuant to the European Convention on Human Rights and Fundamental Freedoms 1950, and in particular Arts. 5, 6 and 14 thereof. The applicant also sought an order of certiorari quashing his conviction before the Special Criminal Court on a charge of membership of an unlawful organisation contrary to s. 21 of the 1939 Act.

Held by Barr J that he was bound by the decision of the Supreme Court in DPP v Quilligan and O’Reilly (No. 3) [1993] 2 IR 305 which was to the effect that s. 30 of the 1939 Act was not repugnant to the Constitution. Barr J was not satisfied that there had been a change in circumstances which would enable the High Court to have jurisdiction to overturn a previous decision of the Supreme Court in relation to the constitutional validity of s. 30 of the 1939 Act. Barr J declined to declare s. 30 of the 1939 Act to be repugnant to the provisions of the Constitution due to the lack of oversight by the member in charge of the initial decision to detain the person arrested. In relation to the argument that the provisions providing for the authorisation of the extension of the applicant’s detention by a Chief Superintendent who is not independent of the investigation was concerned, Barr J was of the view that while not explicitly raised, that aspect was also covered by the decision of the Supreme Court in DPP v Quilligan and O’Reilly (No. 3). Barr J held that he was bound by the decision of the Supreme Court in DPP v Quilligan and O’Reilly (No. 3) that such difference in treatment of persons arrested pursuant to s. 30 of the 1939 Act, to that of persons arrested under other statutory provisions, does not constitute an invidious discrimination which is repugnant to the provisions of the Constitution. Given the protections that are available to an arrested person to have reasonable access to a solicitor and to have access to the courts for the purpose of making an application pursuant to Art. 40 of the Constitution and having regard to the power of the court to inquire into the reasonableness of the suspicion grounding the power of arrest and surrounding matters, as set out in DPP v Tyndall [2005] 1 IR 593, DPP v Quilligan & O’Reilly [1986] IR 495, Walsh v Fennessy [2005] 3 IR 516 and State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550, Barr J was not satisfied that there was any breach of Arts. 5 or 6 of the European Convention on Human Rights.

Barr J held that the reliefs sought by the applicant in his statement of grounds would be refused.

Reliefs refused.

JUDGMENT of Mr. Justice Barr delivered electronically on 23rd April 2020.
1. Introduction
1

In these proceedings the applicant seeks a declaration from the Court that s.30(3) of the Offences Against the State Act, 1939 (as amended) is invalid having regard to the provisions of the Constitution of Ireland, 1937 and in particular having regard to the provisions thereof guaranteeing the right to a fair trial, the right to silence and the right to liberty. The applicant also seeks a declaration pursuant to s.5(1) of the European Convention on Human Rights, Act 2003, that s.30(3) of the Offences Against the State Act, 1939 (as amended) is incompatible with the obligations of the State pursuant to the European Convention on Human Rights and Fundamental Freedoms 1950, and in particular Arts. 5, 6 and 14 thereof. The applicant also seeks an order of certiorari quashing his conviction before the Special Criminal Court on a charge of membership of an unlawful organisation contrary to s.21 of the 1939 Act.

2

In summary, the applicant's case is that s.30 of the 1939 Act is unconstitutional due to the fact that there is no provision whereby the member in charge of the Garda Station to which the arrested person is brought for detention pursuant to s.30 of the 1939 Act, has any input into the authorisation of the initial period of 24 hours’ detention. The applicant maintains that having regard to the interference with a person's constitutional right to liberty, their right to silence and their right to a fair trial, the lack of any such oversight renders the detention permitted by s.30 of the 1939 Act incompatible with the requirements of the Constitution.

3

The applicant further argues that the provision in s.30 of the 1939 Act which provides for an extension of the initial period of detention upon the authorisation of a Chief Superintendent who may not be independent of the actual investigation of the offence for which the prisoner has been detained, means that the necessary oversight of his further period of 24 hours’ detention is not compatible with the requirements of the Constitution.

4

The applicant further argues that insofar as s.30 does not have an oversight or assessment of the initial detention period by any person independent of the investigation, whereas all other detentions have such oversight, for example detentions pursuant to s.4 of the Criminal Justice Act, 1984 (as amended) and detentions pursuant to s.50 of the Criminal Justice Act 2007; persons arrested and detained pursuant to s.30 of the 1939 Act are therefore subject to an invidious discrimination in that they are treated differently to all other persons who may be suspected of involvement in the commission of other offences. It is submitted that this represents an invidious discrimination against those arrested and detained pursuant to s.30 of the 1939 Act and is therefore repugnant to the Constitution.

5

Finally, the applicant argues that the detention and questioning which is provided for under s.30 of the 1939 Act, is incompatible with the provisions of the European Convention on Human Rights and in particular with Arts. 5 and 6 thereof, having regard to the lack of initial oversight of the detention by an independent person and by the lack of any independent authorisation of the extension of the initial period by a Chief Superintendent, because such extension can be given by a Chief Superintendent who may be involved in the investigation.

6

By Order made on consent on 19th March 2019, the first named respondent was removed from the proceedings.

2. Factual background to the present application.
7

The applicant was arrested at 06.10 hours on 2nd August, 2017 by D/Garda Finnerty on suspicion of membership of an unlawful organisation contrary to s.21 of the Offences Against the State Act, 1939, in particular membership of the organisation styling itself Oglaigh nah Eireann/IRA. He was arrested and detained pursuant to s.30 of that Act.

8

The background to that arrest arose in the following circumstances: the applicant had been seen on a number of occasions prior to 13th July, 2017 in the company of, and in conversation with, men who had been convicted of various offences contrary to the 1939 Act. In particular, the applicant had been present as a member of the public at a sentence hearing before the Special Criminal Court held on 6th February, 2017 when one Patrick Brennan was being sentenced for possession of explosives and detonators. Evidence was given that in the course of the sentence hearing, the court put it to Mr. Brennan that he would need to undertake to renounce subversive activities if he wished to avail of a suspension of two years of the proposed sentence of seven years. At the applicant's trial, a Sergeant Boyce gave evidence that when this was put to Mr. Brennan, he looked over at the applicant and then declined to make any indication that he would renounce subversive activities and accordingly the sentence of seven years stood.

9

The pivotal evidence at the trial, concerned the applicant's movements and activities on 13th July, 2017. Evidence was given by a member of the Garda Surveillance Unit that at 13.02 hours he observed the applicant, and his co-accused meeting at the Clearwater Shopping Centre in Dublin. Later at approx. 19.38 hours, the car owned by the co-accused, Mr. Maguire, was observed driving through the toll bridge at Enfield on the N4. When the Garda conveyed that message over the radio system he subsequently received an instruction to go to Oakley Park, Longwood, which was situated on the Trim Road outside the village of Enfield, Co. Meath. There he observed Mr. Maguire's car parked in Oakleigh estate. He observed the applicant and Mr. Maguire crossing to Oakleigh Drive and enter the driveway of a house. He saw the two men at the front door of the house. That was at 19.57 hours. He was not in a position to maintain observation after that time until 20.05 hours. At that time, he observed the driveway of the house where he had seen the applicant and Mr. Maguire, but they were no longer there. Mr. Maguire's car was gone from the Oakleigh estate across the road. The house which they had visited was no. 8 Oakleigh Drive, which was the home of a Mr. Moore.

10

Mr. Moore gave the critical evidence at the trial. In summary, he stated that he had worked for a...

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