Brennan & Ors. - v - The Governor of Portlaoise Prison & Anor., [2008] IESC 12 (2008)

Docket Number:314/07 , 315/07 , 316/07 , 317/07 , 322/07
Judge:Geoghegan J.

THE SUPREME COURT Appeal Nos. 314/315/316/317 & 322/2007Geoghegan J.Fennelly J.Kearns J.BETWEEN/PATRICK BRENNAN, JOHN TROY, SEAN O'DONNELL, THOMAS GIBSONAND STEPHEN BIRNEYRespective Applicants/Appellantsand THE GOVERNOR OF PORTLAOISE PRISONRespondentand THE DIRECTOR OF PUBLIC PROSECUTIONSNotice PartyJUDGMENT of Mr. Justice Geoghegan delivered the 12th day of March 2008 Giving reasons for his concurrence with the judgment of the court pronounced ex tempore on the 5th day of December 2007These are five respective appeals brought by five convicted prisoners who were tried, convicted and sentenced to prison by the Special Criminal Court and whose respective applications for leave to appeal to the Court of Criminal Appeal from such convictions and sentences were refused. The appeals are from five respective orders made by the High Court (O'Neill J.) refusing an order for release in each case in respect of applications in that regard under Article 40 (4)(2) of the Constitution, the High Court having been satisfied that the respective returns to the conditional orders made on the 6th November, 2007 were good and sufficient and that each applicant was being detained in accordance with law. The Article 40 applications were made on the basis that none of the appellants was originally lawfully brought before the Special Criminal Court and that, therefore, allegedly, the Special Criminal Court had no jurisdiction at any stage to deal with them. The impetus to bring this particular application arose from a decision of this court in a judicial review application, O'Brien v. The Special Criminal Court [2007] I.E.S.C. 45 (unreported concurring judgments of Denham J. and Fennelly J. with which Murray C.J. agreed).O'Brien had been charged with membership of the IRA arising out of the same events as similar charges against the appellants. Under the provisions of Section 30A of the Offences against the State Act, 1939, as inserted by section 11 of the Offences against the State (Amendment) Act, 1998, a person rearrested with a view to charge after detention under section 30 of the 1939 Act is required to be brought before the Special Criminal Court "forthwith" to be charged. Because of problems of forming a court in Holy Week there was delay in bringing O'Brien before the court. He had to stay in garda detention overnight before it could be done. This court held that the word "forthwith" had to be construed strictly especially as it seemed to contrast with words used in a somewhat analogous situation namely "as soon as practicable". Since the Special Criminal Court had jurisdiction to try a person only if that person had been lawfully brought before the court, this court held in the O'Brien case that the court had no jurisdiction and ordered that a decision of the Special Criminal Court holding otherwise be quashed.Two weeks after the delivery of judgment in the O'Brien case the appellants brought the Article 40 application to the High Court, the subject matter of this appeal.The High Court (O'Neill J.) refused the application, as already mentioned, on really one ground only. In a judgment of the Court of Criminal Appeal in the case of DPP v. Kehoe [1985] 1 IR 444, delivered by McCarthy J. and dealing with a jurisdictional point relating to the Special Criminal Court it was held that an objection to jurisdiction normally had to be made when the accused was first brought before the court. If the point was not taken at that stage, to quote McCarthy J., "it is spent". As that did not happen in this case, O'Neill J. refused the application.I have come to the firm conclusion that this appeal must be dismissed on more than one ground including the failure to take and pursue objection at the appropriate time. On that particular ground, however, my reasons do not totally correspond with those of the learned High Court judge, as I will be explaining.Fundamental to some respectful differences I have with the judgment of the learned High Court judge is the following paragraph contained in it. "Having read the affidavits, I am satisfied that in so far as the jurisdiction of the Special Court is concerned there is no difference between the circumstances of Mr. O'Brien's case and of these five applicants and in all material respects their circumstances were identical and I don't think there is really any dispute about that." Not only does there appear to be every dispute, but in my view, counsel for the respondent quite rightly point out that there are differences which are both substantial and highly relevant. I will return to these later in the judgment.I think it appropriate in the first instance to concentrate on what I see as a fundamental procedural objection to the Article 40 application. These appellants were arrested on the 11th October, 2002 under section 4 of the Criminal Justice Act, 1984 for questioning in relation to an ordinary crime. As a consequence of their investigations, the gardaí became suspicious that the crime was an IRA venture of some sort...

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