DPP v Birney

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeHardiman J.
Judgment Date12 May 2006
Neutral Citation[2006] IECCA 58
Docket Number[C.C.A. Nos. 53, 54, 55, 56 and 57 of 2005]
Date12 May 2006
BIRNEY & ORS v DPP

Between:

STEPHEN BIRNEY, PATRICK BRENNAN, THOMAS GILSON, SÉAN O'DONNELL

and

JOHN TROY
Applicants

and

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

[2006] IECCA 58

Hardiman J.

Gilligan J.

Dunne J.

57, 54, 55, 56, 53/05.

THE COURT OF CRIMINAL APPEAL

COURTS:

Jurisdiction;

CRIMINAL LAW:

Arrest;

CRIMINAL LAW:

Evidence;

CRIMINAL LAW:

Search warrant

Special Criminal Court - Manner in which accused brought before court - Decision of DPP that accused be charged before Special Criminal Court in lieu of being charged before District Court - Whether accused lawfully brought before court - Whether person lawfully arrested could be held for purposes of bringing him before Special Criminal Court - Whether jurisdiction of Special Criminal Court lawfully invoked when DPP directs that person be brought before court - Whether accused brought as soon as practicable before court - Dunne v Clinton [1930] IR 366 considered; People(DPP) v Kehoe [1985] IR 444 followed - Offences Against the State Act 1939 (No 13), ss 30, 41, 43 and 47 - Criminal Justice Act 1984 (No 22), s 4 - Criminal Law Act 1997(No 14), ss 2 and 4 - Leave to appeal refused (53, 54, 55, 56 & 57/2005 - CCA -12/5/2006) [2006] IECCA 58, [2007] 1 IR 337 DPP v Birney

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S15

CRIMINAL JUSTICE ACT 1984 S4

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 PART V

OFFENCES AGAINST THE STATE ACT 1939 S43

CRIMINAL LAW ACT 1997 S4(3)

CRIMINAL LAW ACT 1997 S2

CRIMINAL LAW ACT 1997 S4

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

WALSH CRIMINAL PROCEDURE 981

OFFENCES AGAINST THE STATE ACT 1939 S47(1)

OFFENCES AGAINST THE STATE ACT 1939 S30(4C)

WALSH v MAGUIRE 1979 IR 372

OFFENCES AGAINST THE STATE ACT 1939 S47(3)

OFFENCES AGAINST THE STATE ACT 1939 S41(1)

OFFENCES AGAINST THE STATE ACT 1939 S30A(3)

CRIMINAL LAW ACT 1997 S4(6)

CRIMINAL JUSTICE ACT 1951 S15(2)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S18

DPP, PEOPLE v KEHOE 1985 IR 444

O LAIGHLEIS, IN RE 1960 IR 93

DUNNE v CLINTON 1930 IR 366

CRIMINAL JUSTICE ACT 1984 S10(2)

CRIMINAL JUSTICE ACT 1984 S4(2)

HAY v O'GRADY 1992 1 IR 210

OFFENCES AGAINST THE STATE ACT 1939 S30(1)

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3

OFFENCES AGAINST THE STATE (AMDT) ACT 1997 S4

OFFENCES AGAINST THE STATE ACT 1939 S21

OFFENCES AGAINST THE STATE ACT 1939 S21(2)

CONSTITUTION ART 38.3.1

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

COURTS OF JUSTICE ACT S29

DPP v GILLIGAN UNREP SUPREME 23.11.2005 2005/20/3987

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

CRIMINAL LAW ACT 1926 S5

CONSTITUTION ART 40.5

CONSTITUTION ARR 38

DPP v OWENS 1999 1 IR 17

CRIMINAL PROCEDURE ACT 1967 S34

DPP v BYRNE 1987 IR 363

HUNTER v SOUTHAM INC 1984 2 SCR 145

1

JUDGMENT of the Court delivered by Hardiman J. the 12th day of May, 2006.

2

On the 21 st February, 2005, each of the above-named applicants was convicted of the offence of membership of an unlawful organisation namely the Irish Republican Army, otherwise Oglaigh Na hEireann, otherwise the IRA, on the 11 th October, 2002. These convictions were recorded after a trial which lasted 25 days. Each of the accused appeals his conviction and that is the sole matter with which the Court is presently concerned. There are certain appeals against sentence which, if necessary, will be dealt with at a later date.

Factual background.
3

There was a considerable volume of evidence relating to the activities of the accused on the evening of the 10 th October, 2002, and the early hours of the following morning. This related to the whereabouts of the accused, the company each was in, and the contents of a van and a car with which they could be associated. In certain cases there was other evidence including tattoos on certain of the accused and the contents of the home of one of them. This evidence was not controverted and is summarised below.

4

A Detective Garda Masterson lives at Corke Abbey, Bray, Co. Wicklow. On the 10 th October, 2002, while off duty, he witnessed certain movements of vehicles and persons in Corke Abbey. The movements appeared to him to be suspicious. The vehicles in question were a dark blue Nissan Almeira car, a Nissan Micra car and a Ford Transit van. Five persons arrived in the Micra, got out of it, and some got into the transit van. They got into the rear compartment of the van. The other two spoke to the original occupants of the transit van and then got back into the Micra and left. Then another person arrived in a taxi and got into the van.

5

Detective Garda Masterson made his suspicions known to the gardaí at Shankhill. As a result of this an unmarked garda vehicle manned by Garda Twomey and Garda Mannion approached the van. They spoke to the driver who gave a false name: this was the applicant Patrick Brennan. While conversing with him the gardaí noticed a black balaclava and a handset of a portable radio on the floor of the van. They summoned assistance. One of the gardaí opened the door into the rear compartment of the van, which was unlocked. There he found four men sitting on the floor. Around them in the rear compartment of the van were a number of items which included.

6

· a lump hammer,

7

· two pick axe handles,

8

· a torch,

9

· eight plastic bags of cable ties,

10

· one black balaclava with a single opening for the face,

11

· two black balaclavas with three holes for the face,

12

· two identical navy blue cloth ties, resembling those worn by gardaí,

13

· a sky blue shirt marked "Security",

14

· a yellow jacket with "Garda" inscribed on the left breast,

15

· gloves including black woollen gloves and plastic industrial gloves,

16

· three walkie talkie type radios.

17

Two of the men at the back of the van namely Thomas Gilson and Séan O'Donnell were dressed in clothing similar to that of members of An Garda Síochána.

18

The five occupants of the transit van were arrested by members of An Garda Síochána under the provisions of s.15 of the Theft and Fraud Act, 2001.

19

The gardaí also examined the Nissan Almeira car which was at the scene in Corke Abbey. It transpired that the number plates on this car were false. In it were found the following relevant items:

20

· " · a beacon like a garda blue flashing light,

21

· a canister of CS gas,

22

· election posters. These were small light paper posters advertising the candidature of Mr. O'Snodaigh, a successful Sinn Féin candidate in the 2002 General Election,

23

· a tax disc and an insurance disc matching the false plates on the car.

24

It transpired that two of the accused had the words "Oglaigh Na hEireann" tattooed on their bodies. These were Stephen Birney who had the words tattooed on his left upper arm and Séan O'Donnell who had it tattooed on his right upper arm where he also had a tattoo of a cross with Irish flags on both sides. Mr. Gibson had a tattoo of "Ireland" on his right upper arm and Mr. Troy a tattoo of an armalite rifle on his right upper arm with the name "Rhonda" written through it.

25

Subsequently, the home of Stephen Birney was searched. In it was found a mirror inscribed "Oglaigh Na hEireann" which had six signatures on the rear purporting to be those of IRA members, a photograph of five men in combat clothing bearing the words "Victory to the IRA" and a picture of a number of masked men who would seem to be armed at a funeral.

26

Having been arrested, the applicants were all brought to Bray Garda station. After some delay during which the items seized were examined by the member in charge, they were detained under the provisions of s.4 of the Criminal Justice Act, 1984, which detention was subsequently extended. After the conclusion of this s.4 detention they were arrested under the provisions of s.30 of the Offences against the State Act. This detention was also subsequently extended. Each of the accused was questioned in interviews during which the provisions of s.2 of Offences against the State Amendment Act, 1998, were invoked. Each accused was told that if he failed to answer material questions, inferences might be drawn from this failure or refusal, but each refused to answer any questions. Amongst the questions asked, and frequently repeated, was the question "Are you a member of the IRA?". At the trial, pursuant to the Offences against the State Act, Chief Superintendent Philip Kelly, the head of the Special Detective Unit, gave evidence of his belief that each of the accused was a member of the IRA. He said that this belief was not in anyway dependent on the facts set out above but was independently grounded. His evidence was not challenged.

Issues on appeal.
27

As mentioned above, there is no challenge to the facts proved by the prosecution. Instead, a variety of legal points are taken. Although almost all of these points are common to all the accused they are differently numbered in the individual notices of appeal. At the trial, however, counsel for the various applicants made submissions on different points on behalf of his or her own client, and all the other applicants. Additionally, individual points were taken on behalf of three of the applicants. Two of the points raised in the notices of appeal were not pursued. These were a submission that the applicants were not properly or correctly informed of the reason for their arrest, and a submission that the search of the Transit van was unlawful. Other points were only lightly touched on.

28

The points actually urged on the hearing of the appeal were as follows:

29

(1) The Special Criminal Court did not have jurisdiction to try the applicants. This point was argued on behalf of all the applicants by Ms. Deirdre...

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