Brennan & Ors -v- Governor of Portlaoise Prison & Anor, [2007] IEHC 384 (2007)

Docket Number:2007 1584/5/6/7/8 SS
Party Name:Brennan & Ors, Governor of Portlaoise Prison & Anor
Judge:O''Neill J.

THE HIGH COURT[2007 No. 1588/1587/1586/1584/1585 SS]BETWEENPARTICK BRENNAN, JOHN TROY, THOMAS GILSON, SEAN O'DONNELL AND STEPHEN BIRNEYAPPLICANTSANDTHE GOVERNOR OF PORTLAOISE PRISON AND THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTSJUDGMENT of Mr. Justice O'Neill delivered on the 9th day of November, 2007In this case I directed an inquiry under Article 40 of the Constitution into the legality of the detention of all five Applicants, I also joined the Director of Public Prosecutions to the proceedings for the purposes of that inquiry.The returns to the proceedings or the certificates which have been furnished by Respondents certify that all five Applicants are detained pursuant to warrants from the Special Criminal Court requiring the Respondents to detain the Applicants for the duration of the sentences imposed upon each of them, that is to say four years from the 21st February, 2005 with the last two months suspended. The same sentence was imposed in respect of all five Applicants.Notwithstanding the ostensible legitimacy of those warrants and, I suppose, the ostensible legitimacy of the detention on foot of them the Applicants maintain this challenge to the legality of their detention because of the Judgment of the Supreme Court given in the case of O'Brien v. The Special Criminal Court and The DPP, in which judgments were delivered on the 24th October of this year and in which the Supreme Court held that the Special Criminal Court had no jurisdiction to try Mr. O'Brien. All five Applicants in this application contend that the circumstances of their arrest and detention under Section 30 of the Offences Against the State Act and their re-arrest under Section 4 of the 1997 Criminal Justice Act were identical to Mr. O'Brien's circumstances and they contend that following upon the judgments of the Supreme Court in the O'Brien case the detention of all of the Applicants is now unlawful.The facts of this matter may be briefly summarised. All five Applicants were arrested in 2002 and they were brought before the Special Criminal Court in 2002 and they were remanded a number of times, it is not clear how many, until December 2004. At the point at which they were about to be arraigned all five Applicants challenged the jurisdiction of the Court to try them.In the meantime Mr. O'Brien was arrested at a later time, he was arrested in 2004 and charged before the Special Court, but when he was charged he raised this point of jurisdiction and the Special Criminal Court fixed the trial of that issue for 13th December, 2004.The Applicant's trial was due to commence on 9th December, 2004 and, when they were arraigned they too raised this jurisdiction point. With the agreement of the Court, the preliminary point, as it may be described, as to jurisdiction, both in respect of these five Applicants and Mr. O'Brien, was tried by the Special Criminal Court on 13th December, 2004 and the Court gave its judgment on that preliminary issue on the 14th December, 2004 and it rejected the submissions which had been made by all six, I suppose, Applicants at that stage.Essentially, the case that was being made is that the arrest which was made under section 4 of the Criminal Law Act 1997 was unlawful, that the only possible form of arrest that was contemplated under the Offences Against the State Acts 1939-1998 for the purposes of bringing somebody lawfully before the Special Criminal Court was an arrest under the statutory scheme of The Offences Against the State Acts and hence the ordinary or general power of arrest as contained in section 4 of the Act of 1997 wasn't available and on that ground the arrest and subsequent bringing of these Applicants before the Special Court was illegal.It was furthermore contended that even if that wasn't correct that Section 30(a)(3) of The Offences Against the State Act 1939, as introduced by the 1998 Act, required that upon arrest or re-arrest after a detention under Section 30 they had to be brought forthwith before the Court and charged, or forthwith charged and that was not done.As to these two points, in the course of the hearing before the Special Criminal Court the State relied upon The DPP v. Kehoe [1986] ILRM. 69 to say that insofar as these five Applicants were concerned, as they had not raised the point on their first appearance before the Court the point was now spent and they couldn't rely upon it. The Special Criminal Court did not deal with that point but rejected the submissions made on the other two points.Following upon that the trial of the Applicants proceeded before the Special Court for 25 days and in due course they were convicted on 21st February, 2005 and each of them sentenced to four years imprisonment.In the meantime, Mr. O'Brien had taken judicial review proceedings, which came on for hearing before the High Court, before Mr. Justice MacMenamin, who rejected his case. He appealed to the Supreme Court and the Supreme Court on the 24th October of this year allowed his appeal and declared that the Special Court did not have jurisdiction to try Mr. O'Brien.I should say, to complete the history, that after their conviction by the Special Criminal Court these Applicants appealed to the Court of Criminal Appeal and I am satisfied that as part of their appeal they did rely upon the jurisdictional point and, again, the question of whether their right to do so was spent did arise but was not decided by the Court of Criminal Appeal. But it is quite clear from Judgment of the Court of Criminal Appeal that their contention in relation to the legality of their re-arrest was rejected in that Court.Now, the issues which arise on this...

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