O'Brien v Special Criminal Court & DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 28 July 2005
• Neutral Citation: [2005] IEHC 297
• Court: High Court
• Date: 28 July 2005

[2005] IEHC 297

THE HIGH COURT

[No. 30 JR/2005]

O'BRIEN v SPECIAL CRIMINAL COURT & DPP

JUDICIAL REVIEW

BARRY O'BRIEN

BETWEEN

APPLICANT

AND

THE SPECIAL CRIMINAL COURT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

OFFENCES AGAINST THE STATE ACT 1939 S21

OFFENCES AGAINST THE STATE ACT 1939 S29

OFFENCES AGAINST THE STATE ACT 1939 S30

CRIMINAL LAW ACT 1997 S4

CONSTITUTION ART 38.3.1

CONSTITUTION ART 38.3.2

OFFENCES AGAINST THE STATE ACT 1939 PART V

OFFENCES AGAINST THE STATE ACT 1939 S43

EMERGENCY POWERS BILL, IN RE 1977 IR 159

DPP v TYNDALL UNREP SUPREME 3.5.2005

OFFENCES AGAINST THE STATE ACT 1939 S43(1)

OFFENCES AGAINST THE STATE ACT 1939 S45

OFFENCES AGAINST THE STATE ACT 1939 S46

OFFENCES AGAINST THE STATE ACT 1939 S47

OFFENCES AGAINST THE STATE ACT 1939 S48

OFFENCES AGAINST THE STATE ACT 1939 S47(1)

OFFENCES AGAINST THE STATE ACT 1939 S34(4)(c)

WALSH, STATE v MAGUIRE 1979 IR 372

OFFENCES AGAINST THE STATE ACT 1939 S47(3)

SPECIAL CRIMINAL COURT RULES 1975 SI 234/1975 r17(1)

OFFENCES AGAINST THE STATE ACT 1939 S41(1)

OFFENCES AGAINST THE STATE ACT 1939 S30(a)(3)

CRIMINAL LAW ACT 1997 S4

CRIMINAL LAW ACT 1997 S4(3)

CRIMINAL LAW ACT 1997 S2O LAIGHLEIS, IN RE 1960 IR 93

MCELHINEY v SPECIAL CRIMINAL COURT 1990 1 IR 405

OFFENCES AGAINST THE STATE ACT 1939 S49

DPP v PRINGLE, MCCANN & O'SHEA UNREP 22/5/81 1982/3/543

OFFENCES AGAINST THE STATE ACT 1939 S47(3)

CULLY v GOV OF PORTLAOISE PRISON 1998 1 IR 443

HEGARTY v GOV OF LIMERICK PRISON 1998 1 IR 412

DUNCAN v GOV OF PORTLAOISE (NO 2) 1998 1 IR 433

CRIMINAL LAW ACT 1997 S4(1)

CRIMINAL JUSTICE ACT 1951 S15(2)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S15(2)

OFFENCES AGAINST THE STATE ACT 1939 S30(a)(1)

CRIMINAL JUSTICE ACT 1951 S15(3)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S18

DPP v CAROLAN 1998 2 ILRM 212

MASSOUD v JUDGE WATKINS & DPP UNREP GILLIGAN 22.6.2004

COURTS: Special Criminal Court

Jurisdiction- Method by which persons brought before Special Criminal Court - Whether applicant lawfully before Special Criminal Court - Whether direction of Director of Public Prosecutions sufficient to invoke jurisdiction of Special Criminal Court - Re-arrest under s. 4(3) of Criminal Law Act 1997 - Whether s. 4(3) of Criminal Law Act 1997 can be used to bring person before Special Criminal Court - Intention and purpose of re-arrest - Whether evidence of mala fides or abuse of process - Offences Against the State Act 1939 (No 13), ss 43 and 49 - Criminal Law Act 1997 (No 14), s 4 - Relief refused

CRIMINAL LAW: Arrest

Detention - Power of re-arrest after release from detention - Power of detention without charge - Whether re-arrest for offence following release without charge for same offence valid -Whether applicant charged with offence "as soon as practicable" - Efforts to convene sitting of Special Criminal Court - Whether applicant brought before Special Criminal Court "fortwith" - Purpose of re-arrest - Abuse of power - Whether re-arrest for purposes of continued enquiry or investigation - Offences Against the State Act 1939 (No 13), ss 30, 30(A)(1) and (3) and 47(1) - Criminal Justice Act 1951 (No 2), s 15(2) - Criminal Law Act 1997 (No 14), s 4 - Relief refused (2005/30JR - MacMenamin J - 28/7/2005) [2005] IEHC 297

O'BRIEN v SPECIAL CRIMINAL COURT & DPP

1 Mr. Justice John MacMenamin dated the 28th day of July, 2005

2 The issue at stake in these proceedings is whether on the facts the Special Criminal Court has jurisdiction to try the applicant on the charge of membership of an unlawful organisation contrary to s. 21 of the Offences Against the State Act, 1939 - 1998 on a date specified that is the 6 ^th April, 2004.

3 In order to determine this issue it is necessary to examine in some detail the chronology which form the basis of the claim for the relief sought. These grounds are relied on by the applicant for the purposes of these proceedings only and without prejudice to any issue that may be raised relating to matters in the Book of Evidence during the trial of the applicant should it proceed.

Background: The Facts

4 On 6 ^th April, 2004, Detective Superintendent Diarmuid O'Sullivan issued a search warrant under s. 29 of the Offences Against the State Act. 1939 - 1998 to Detective Sergeant Rory Corcoran to search the home of the applicant at 6 Mountain Court, Dundalk, Co. Louth. At 8.30 pm on the same date Detective Sergeant Corcoran went to the home of the applicant with the search warrant. At 8.45 pm Detective Sergeant Corcoran arrested the applicant at his home under s. 30 of the Offences Against the State Act, 1939 - 1998 on suspicion of having committed the offence of membership of an unlawful organisation on 6 ^th April, 2004, contrary to s. 21 of the Offences Against the State Act, 1939 - 1998.

5 Following the arrest of the applicant and the search of his house, he was brought to Balbriggan Garda Station arriving there at 10.25 pm on 6 ^th April, 2004. The member in charge, Garda Donal O'Friel dealt with him on arrival. At 10.30 pm the applicant was detained at Balbriggan Garda Station under s. 30 of the Offences Against the State Act aforesaid.

6 On the evening of the following day that is 8.20 pm on 7 ^th April, 2004, Chief Superintendent Michael Finnegan authorised the extension of the applicant's detention for a period of 24 hours to commence at the expiry of his first period of detention. The applicant was detained into the following day that is 8 ^th April, 2004. At 5.25 pm on 8 ^th April, 2004, (Holy Thursday) Detective Superintendent O'Sullivan informed Garda Thomas Hargadon, member in charge of Balbriggan Garda Station that he had been notified that the Director of Public Prosecutions had directed that the applicant be charged with membership of an unlawful organisation. He also informed the applicant of this in the presence of Garda Hargadon. The applicant was not charged with the offence at this point nor was he released.

7 At 8.35 pm on the same date the applicant was released from detention under s. 30 of the Offences Against the State Act, 1939 - 1998. Immediately thereafter, Detective Sergeant Corcoran re-arrested the applicant at Tankardstown, Balbriggan under s. 4 of the Criminal Law Act, 1997 for the offence of membership of an unlawful organisation contrary to s. 21 of the Offences Against the State Act, 1939 - 1998. Detective Sergeant Corcoran cautioned the applicant and brought him back to Balbriggan Garda Station where he was dealt with by the member-in-charge and thereafter detained. It was noted on the custody record that the applicant was informed at 8.51 pm on the same date by Detective Sergeant Corcoran that he would be brought before the next sitting of the Special Criminal Court and charged there with the offence in question.

8 The following day was Good Friday. On the morning of that date the applicant was conveyed from Balbriggan Garda Station to the Special Criminal Court where he was charged with membership of an unlawful organisation at 11.50 am.

9 At the charging hearing on 9 ^th April, 2004, the applicant's solicitor Mr. James McGuill, challenged the jurisdiction of the Special Criminal Court on the basis that the applicant had not been lawfully brought before the court. Legal argument on this point was adjourned from that date and heard by the Special Criminal Court on 13 ^th December, 2004. The court gave judgment on 14 ^th of that month holding that the applicant was not unlawfully before the court.

The Issue

10 In these proceedings Ms. Deirdre Murphy Senior Counsel for the applicant submits that it is clear that the applicant was detained for 15 hours and 20 minutes from his arrest at 8.35 pm on 8 ^th April, prior to his being charged on Good Friday in the Special Criminal Court. She further submits he was detained for 18½ hours from the giving of notification that the Director of Public Prosecutions had directed that he be charged at 5.25 pm on 8 ^th April, 2004, prior to being so charged.

11 By virtue of these facts and for the reasons set out below, it is contended that the applicant is not lawfully before the Special Criminal Court for trial under the Offences Against the State Act, 1939 - 1998 and that, consequently the Special Criminal Court has no jurisdiction to try him for the aforesaid offence. The applicant further submits that the first named respondent, that is the Special Criminal Court misdirected itself in law in holding that the applicant was lawfully before it for trial on the aforesaid offence.

The Constitutional and Legal Basis of the Special Criminal Court

12 In order to consider the issue of jurisdiction it is first necessary to examine the constitutional and legal nature of that court.

13 The Special Criminal Court is established pursuant to Article 38.3.1 of the Constitution of Ireland which provides that:-

"Special Courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order".

14 Article 38.3.2 provides

"[t]he constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law".

15 The Special Criminal Court was set up under Part 5 of the Offences Against the State Act, 1939 - 1998. Section 43 of that Act states that the jurisdiction of the court is

"to try and convict or acquit any person lawfully brought that [c]ourt for trial under this Act".

16 The rules of the Special Criminal Court are to be found in the Offences Against the State Act, 1939 - 1972, Special Criminal Court Rules (Statutory Instrument S.I. No. 234 of 1975).

17 Counsel for the applicant submits that by virtue of the statutory scheme...