O'Brien v Special Criminal Court & DPP

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 11 December 2009
• Neutral Citation: [2009] IEHC 555
• Court: High Court
• Date: 11 December 2009

[2009] IEHC 555

THE HIGH COURT

No. 109 J.R./2009

O'Brien v Special Criminal Court & DPP

[2009] IEHC 555

Barry O'Brien

Applicant

And

The Special Criminal Court

And

The Director of Public Prosecutions

Respondents

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT 1976 S2

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3(2)

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL JUSTICE ACT 2006 S22

REDMOND v IRELAND & AG 2009 2 ILRM 419 2009 IEHC 201

OFFENCES AGAINST THE STATE ACT 1939 S29

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

CRIMINAL LAW ACT 1976 S5

DPP v BINEAD & DONOHUE 2007 1 IR 374 2006/17/3463 2006 IECCA 147

DPP v KELLY 2006 3 IR 115 2006 2 ILRM 321 2006/19/3876 2006 IESC 20

WAXY O'CONNORS LTD v JUDGE RIORDAN UNREP HERBERT 25.11.2009 2009 IEHC 515

DPP v POWER UNREP CCA 2.7.2007 2007/21/4391 2007 IECCA 75

C (C) & G (C) v IRELAND & ORS 2006 4 IR 1

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

BRENNAN & ORS v GOVERNOR OF PORTLAOISE PRISON 2008 3 IR 364 2008/4/657 2008 IESC 12

CREAVEN & ORS v CRIMINAL ASSETS BUREAU & ORS 2004 4 IR 434

HUNTER ET AL & SOUTHAM INC 1984 2 SCR 145

DPP v BIRNEY & ORS 2007 1 IR 337 2006/6/1072 2006 IECCA 58

DPP & WARD v SPECIAL CRIMINAL COURT 1999 1 IR 60

BYRNE v GREY & ORS 1988/4/949

BERKELEY v EDWARDS & ORS 1988 IR 217 1988/4/907

DPP v JUDGE WINDLE & WALSH 1999 4 IR 280 2000 1 ILRM 75 1999/9/2221

BLANCHFIELD v JUDGE HARNETT & ORS 2001 1 ILRM 193 2000/2/537

O'LEARY v AG 1993 1 IR 102 1991 ILRM 454 1990/10/2890

D (M) (A MINOR) v IRELAND & ORS UNREP CLARKE 21.4.2009 2009 IEHC 206

CRIMINAL LAW

Offences against the State Act

Membership of unlawful organisation - Evidence of belief of membership of unlawful organisation - Validity of section - Weight to be attributed to statement - Refusal of application to adjourn trial pending outcome of cases which challenged validity - Review of decision to refuse application - Whether applicant entitled to bring judicial review proceedings during currency of trial - Application made on second day of trial - Whether application should have been made in advance of trial -Whether exceptional circumstances - Discretion to refuse adjournment - Redmond v Ireland [2009] IEHC 201, DPP v Connolly [2003] 2 IR 1, DPP v Binead [2007] IECCA 147 [2007] 1 IR 374, People (DPP) v Kelly [2006] IESC 20 [2006] 3 IR 115, Waxy O Connors Ltd v Riordan [2009] IEHC 515 (Unrep, Herbert J, 25/11/2009), People (DPP) v Power [2007] IECCA 75 (Unrep, CCA, 2/7/2007), CC v Ireland [2006] IESC 33, [2006] 4 IR 1, A v Governor of Arbour Hill Prison [2006] IEHC 45 [2006] 4 IR 88, Brennan v Governor of Portlaoise Prison [2008] IESC 12 [2008] 3 IR 364, Creaven v Criminal Assets Bureau [2004] 4 IR 434, Hunter et al v Southam Inc [1984] 2 SCR 145, People (DPP) v Birney [2006] IECCA 58, [2007] 1 IR 337, DPP v Special Criminal Court [1999] 1 IR 60, Byrne v Grey [1998] 1 IR 31, Berkeley v Edwards [1988] IR 217, DPP v Windle [1999] 4 IR 280, Blanchfield v Harnett [2001] 1 ILRM 193, MD v Ireland [2009] IEHC 206 considered - Offences against the State Act 1939 (No 13), s 21 and s29 - Offences against the State (Amendment) Act 1972 (No 26) s 3(2), Criminal Law Act 1976 (No 14) ss 2 and 5, European Convention on Human Rights - Relief refused (2009/109 JR - O'Neill J - 11/12/2009) [2009] IEHC 555

O Brien v Special Criminal Court and DPP

Facts The applicant sought an order to quash a decision of the Special Criminal Court to refuse to adjourn a case where he was charged with membership of an illegal organisation. Submissions were made regarding the unchallengeable evidence of a chief superintendent's evidence of his opinion of his belief regarding membership. The validity of section 3 (2) of the 1972 Act was also before the courts and the applicant wanted to await the outcome of these cases. The court ruled the application was premature as no evidence had been put forward. The applicant also challenged the constitutionality of a search warrant on grounds that it is contrary to natural justice that it be issued by a person directly involved in the case.

Held by Neill J in declining the application:

1.It was settled law that a person could only seek judicial review during the currency of a trial in exceptional circumstances. Exceptional circumstances were not proved. DDP v Special Criminal Court [1999] 1 IR 60 followed.

2.The outcome of the two cases pending before the courts were not relevant to the application for an adjournment of the applicant's case.

3.The constitutional challenge to s. 3 (2) of the 1972 Act that the evidence of the chief superintendent is his statement and not his belief was patently wrong. People (DPP) v Kelly [2006] 3 IR 115 followed.

4.As to the application for an adjournment, it was well settled law that the courts have a wide discretion and the trial judge was within his discretion in refusing it.

Reporter: BD

1. Relief sought

2 1.1 Leave was granted by this Court (Peart J.) on the 2 ^nd February, 2009, to apply for inter alia the following reliefs by way of judicial review:-

1 An order of certiorari quashing the decision of the first named respondent made on the 28 ^th January, 2009, to proceed with the trial of the applicant on the charge of membership of an unlawful organisation on the 6 ^th April, 2004, contrary to s.21 of the Offences Against the State Act 1939, as amended by s.2 of the Criminal Law Act 1976, notwithstanding the defence application to adjourn the trial pending the outcome of proceedings currently before the courts in which the provisions of s. 3(2) of the Offences Against the State (Amendment) Act 1972are being challenged on the basis that they are invalid having regard to the Constitution of Ireland and the European Convention on Human Rights, such proceedings being entitled D.P.P. v. Redmond, commenced by way of plenary summons and currently at hearing before the High Court sitting at Dundalk, Co Louth and D.P.P. v. Sean Connolly, currently pending before the Supreme Court pursuant to a certificate granted by the Court of Criminal Appeal under s.29 of the Courts of Justice Act 1924.

2 Prohibition or an injunction restraining the respondents from proceeding with the trial of the applicant in respect of the aforesaid charge, until the final order has been made in the proceedings entitled D.P.P. v. Redmond and in the proceedings entitled D.P.P. v. Sean Connolly, or, in the alternative, until the outcome of the proceedings the subject matter of the plenary summons issued by the applicant herein.

3 A stay of proceedings in the trial of the applicant on the aforesaid charge.

2. Facts

2 2.1 The applicant was charged with the offence of membership of an unlawful organisation on the 6 ^th April, 2004, contrary to s.21 of the Offences Against the State Act 1939("the Act of 1939") and has pleaded not guilty. His trial commenced before the Special Criminal Court on the 27 ^th January, 2009, but was adjourned on that day due to the late disclosure of documents to the defence. Part of the evidence the prosecution intended to adduce was "belief evidence" pursuant to s. 3(2) of the Offences Against the State (Amendment) Act 1972("the Act of 1972"), which provides for the admission of evidence from a Chief Superintendent stating that he believes that the applicant was, at a material time, a member of an unlawful organisation. Counsel for the applicant, Ms. Murphy S.C., on the following day, made an application to the Special Criminal Court for a declaration as to the true construction of s.3(2) of the Act of 1972, which reads as follows:-

"Where an officer of the Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21 [of the Offences Against the State Act 1939], states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member."

Ms. Murphy submitted to the Special Criminal Court that, on a true construction of the above section, it was the Chief Superintendent's statement of belief that constituted evidence of membership of an unlawful organisation and not the belief itself. This had the effect, she continued, of rendering the Chief Superintendent's evidence unchallengeable by cross-examination or otherwise and the evidence given under s.3(2) of the Act of 1972 became a mere certification exercise.

3 2.2 The Special Criminal Court determined that the application was premature as no evidence had been put forward in the case. Ms. Murphy also applied for the trial of the applicant to be adjourned pending the outcome of two sets of plenary proceedings before the courts in which the validity of s. 3(2) of the Act of 1972 was being challenged. One case, D.P.P. v. Redmond, was being heard before the High Court and the other case, D.P.P. v. Sean Connolly, was pending before the Supreme Court pursuant to a certificate granted by the Court of Criminal Appeal under s.29 of the Courts of Justice Act 1924, as substituted by s.22 of the Criminal Justice Act 2006. In the Redmond case the plaintiff argues that the true construction of s.3(2) of the Act of 1972 is invalid having regard to the Constitution and in the Connolly case the plaintiff contends that s.3(2) of the Act of 1972 infringes the provisions of the European Convention on Human Rights and Fundamental Freedoms. The Special Criminal Court ruled, however, that it should proceed with the trial of the applicant, though it granted a short adjournment until the 3 ^rd February, 2009, to enable the applicant to seek judicial review. Leave was granted on the 2 ^nd February, 2009. Some time later, on the 30 ^th April, 2009, this Court (McMahon J.) dismissed the plaintiff's claim in the Redmond case ( Redmond v. Ireland and the Attorney...