DPP v Braney
| Jurisdiction | Ireland |
| Judge | Edwards J,Birmingham J |
| Judgment Date | 06 July 2015 |
| Neutral Citation | [2015] IECA 139 |
| Date | 06 July 2015 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [2012/155 CJA] Bill No. SCDP 008/2013 |
[2015] IECA 139
THE COURT OF APPEAL
The President
Birmingham J.
Edwards J.
[2012/155 CJA]
Bill No. SCDP 008/2013
In the Matter of a Reference Under Section 34 of the Criminal Procedure Act 1967
Offences against the State – Membership of an unlawful organisation – Question of law – Applicant seeking determination of a question of law – Whether the Special Criminal Court was correct in its interpretation of s. 30A of the Offences Against the State Act 1939
Facts: The respondent, A.B., was charged in March 2013 with membership of an unlawful organisation, namely the IRA, contrary to s. 21 of the Offences Against the State Act 1939. Some 24 years before his arrest on the instant charge A.B. had been arrested and detained pursuant to s. 30 of the 1939 Act on suspicion of having committed the offence of membership of an unlawful organisation on the specified date. Charges were not preferred against him following that arrest. The trial of A.B. and others began in January 2015 and concluded in March 2015. The Special Criminal Court held that A.B. was not lawfully arrested in respect of the charge that he was facing because of the prohibition contained in s. 30A(1) of the 1939 Act. The applicant, the DPP, referred a question of law under s. 34 of the Criminal Procedure Act 1967 for determination by the Court of Appeal arising out of the acquittal of A.B. by the Special Criminal Court: was the Special Criminal Court correct in its interpretation of s. 30A of the 1939 Act? Under the terms of s. 34 of the 1967 Act, the determination of the question of law by the Court of Appeal was without prejudice to the acquittal of A.B. by the Special Criminal Court.
Held by Ryan P that the point that arose for consideration was whether the Special Criminal Court was correct in its ruling concerning the arrest of the accused on suspicion of commission of the offence on which he stood trial; was he arrested again in connection with the offence to which the detention in 1989 related? Ryan P reasoned that whether a suspicion or charge is based on information about events or the belief of a Chief Superintendent or on a combination of both, the source of each kind of material giving rise to the concept of membership on the part of the particular person is in facts that have allegedly happened at a time prior to the existence of the suspicion or charge. Ryan P held that the concept of a continuing state of affairs representing membership of an organisation is different from the same conditions being permanent; it was legitimate for the Special Criminal Court to infer in DPP v Vincent Banks (19th March 2014) that the period of three months was insufficient to distinguish between the cases/charges but the much longer period of years is a wholly different matter. Ryan P held that it is a question of fact whether the membership that was suspected on the previous occasion was the same offence for which the person had been subsequently charged; it cannot be presumed simply because membership is by its nature a continuing condition or state that the offence alleged is the same. Ryan P suggested approaching the issue through an examination of whether the circumstances, facts or events that gave rise to the suspicion on which the later arrest was based had happened or come about at the time of the previous arrest. Ryan P held that this was a matter of evaluation and judgment by the Court.
Ryan P held that the answer to the legal question posed in this reference was that the Special Criminal Court was not correct in its interpretation of s. 30A of the 1939 Act.
Judgment approved.
This is a reference by the Director of Public Prosecutions of a question of law for determination by this Court arising out of the acquittal of A.B. by the Special Criminal Court on the charge of membership of an unlawful organisation, namely, the IRA. The trial of A.B. and others began on 27th January 2015 and concluded on 13th March 2015.
It is an offence for a person to be a member of an unlawful organisation: s. 21 of the Offences Against the State Act 1939. A person who is arrested and detained on suspicion of having committed that offence and is released without charge cannot be arrested again for the same offence except under a warrant issued by a judge of the District Court. Before issuing the warrant, the judge must be satisfied on information on oath (as to the suspected participation in the offence for which his arrest is sought) given by a Garda Superintendent or a higher Officer, that further information has come to the knowledge of the Gardai since the person's release: s. 30A (1) of the Offences Against the State Act 1939 as inserted by s. 11 of the Offences Against the State (Amendment) Act 1998.
The charge on which A.B. was tried was that he was a member of an unlawful organisation, namely, the Irish Republican Army on 29th March 2013 contrary to s. 21 of the Offences Against the State Act 1939 as amended by s. 48 of the Criminal Justice (Terrorist Offences) Act 2005. Some 24 years before his arrest on the instant charge A.B. hadbeen arrested and detained pursuant to s. 30 of the 1939 Act on suspicion of having committed the offence of membership of an unlawful organisation on the specified date. Charges were not preferred against him following that arrest.
The Special Criminal Court held that A.B. was not lawfully arrested in respect of the charge that he was facing because of the prohibition contained in s. 30A(1) of the 1939 Act/1998 (Amendment) Act.
The question for this Court that is referred under s. 34 of the Criminal Procedure Act 1967 is as follows:—
Was the Special Criminal Court correct in its interpretation of s. 30A of the Offences Against the State Act 1939, as inserted by s. 11 of the Offences Against the State (Amendment) Act 1998?
Under the terms of s. 34, the determination of the question of law by this Court is without prejudice to the acquittal of A.B. by the Special Criminal Court.
A.B. was arrested...
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