DPP v O'Brien

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 02 July 2012
• Neutral Citation: [2012] IECCA 68
• Court: Court of Criminal Appeal
• Date: 02 July 2012

DPP v O'Brien

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/

RESPONDENT

AND

BARRY O'BRIEN

APPELLANT

[2012] IECCA 68

Hardiman J.

Moriarty J.

Hogan J.

[No. 61/11 CCA]

THE COURT OF CRIMINAL APPEAL

THE COURT OF CRIMINAL APPEAL

Crime - Offences against the State - Powers of Arrest - Lawful entitlement of Gardai to be on premises - Whether power of arrest available where Gardai to be considered trespassers -Offences against the State Act 1939 -Art 40 Constitution

Facts: The appellant had been arrested following a search of his property in 2004 in regards of suspected involvement In Irish Republican Army ("IRA") activity. The search had been authorised by a warrant under s.29 of the Offences against the State Act 1939. Following his conviction by the Special Criminal Court in 2010 of IRA membership, the Supreme Court in the case of Damache v Director of Public Prosecutions [2012] IESC 11 ("Damache") had found s.29 to be unconstitutional. The appellant now sought to appeal his conviction.

Held by Hardiman J, the Court would first have to determine whether the Damache ruling applied, before considering whether it would support the appellant's submissions.

Recent case law in the Court of Criminal Appeal had detailed that appellants could benefit from a finding of unconstitutionality when they had made submissions to that effect at their trial, and where criminal proceedings in the matter were still live. As the appellant met both these conditions, the Damache ruling would apply. People (Director of Public Prosecutions) v Cunningham [2012] IECCA 64 and People (Director of Public Prosecutions) v Kavanagh [2012] IECCA 65 considered.

Going on to consider the relevance of the Damache ruling, the Court found that clear and explicit language would be required in any provision passed by the Oireachtas before the court would accept any infringement of rights under art 40 of the Constitution. In the absence of this language in s. 30 justifying arrest notwithstanding any unconstitutionality of a warrant under s. 29, the Court would therefore allow the appeal, and remit the case for a re-trial. Damache v Director of Public Prosecutions [2012] IESC 11 followed, People (Director of Public Prosecutions) v Laide [2005] 1 IR 209 applied.

DAMACHE v DPP & ORS 2012 2 ILRM 153 2012 IESC 11

OFFENCES AGAINST THE STATE ACT 1939 S29

CRIMINAL LAW ACT 1976 S5

DPP v CUNNINGHAM UNREP CCA 11.5.2012 2012 IECCA 64

DPP v KAVANAGH & ORS UNREP CCA 24.5.2012 2012 IECCA 65

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT 1976 S2

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2

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

O'BRIEN v SPECIAL CRIMINAL COURT & DPP UNREP O'NEILL 11.12.2009 2009/43/10824 2009 IEHC 555

CONSTITUTION ART 40.5

AG, PEOPLE v HOGAN 1 FREWEN 360

CONSTITUTION PREAMBLE

CONSTITUTION ART 40.3.2

CONSTITUTION ART 41

CONSTITUTION ART 42

DPP v GAFFNEY 1987 IR 173

MURPHY v GREENE 1990 2 IR 566 1991 ILRM 404 1990/10/2793

ROAD TRAFFIC ACT 1961 S107

DPP v LAIDE & RYAN 2005 1 IR 209 2005/20/4178 2005 IECCA 24

1 1. This is another appeal to this Court which traverses issues raised in the aftermath of the finding of the Supreme Court in Damache v. Director of Public Prosecutions [2012] IESC 12. In that case the Supreme Court found that s. 29 of the Offences against the State Act 1939 (as inserted by s. 5 of the Criminal Law Act 1976) ("the Act of 1939") was unconstitutional. We have already addressed some of these complex questions in our judgments in The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA 64 and in The People (Director of Public Prosecutions) v. Kavanagh [2012] IECCA 65.

2 2. The present case, however, raises squarely the question of whether the Gardaí are entitled to effect a lawful arrest under s. 30 of the Act of 1939 of the owner of a private dwelling in circumstances where - for reasons we shall presently relate - in the aftermath of Damachethey must be objectively adjudged to be trespassers who had no lawful entitlement to be present in that dwelling at the relevant time.

3 3. The applicant was convicted by the Special Criminal Court on 7 ^th December, 2010, of membership of an illegal organisation (namely, an organisation styling itself the Irish Republican Army, otherwise Oglaigh na hEireann on 6 ^th April, 2004), contrary to s. 21 of the Act of 1939, as amended by s.2 of the Criminal Law Act 1976. On 23 ^rd February, 201, the court imposed a sentence of three years and nine months, effective from 1 ^st January, 2011.

4 4. The background to the trial so far as the issues pertinent to this appeal are concerned can be summarised thus: Detective Superintendent O'Sullivan had issued a warrant under s. 29 of the Act of 1939 for the search of Mr. O'Brien's dwelling at 6 Mountain View Court, Dundalk. He gave evidence before the Special Criminal Court to the effect that he believed that the applicant "was actively involved in IRA activity" and "in the movement and transposition of firearms as part of that activity". He said that he issued a warrant "for the purpose of searching his premises in an effort to discover those firearms".

5 5. On 6 ^th April, 2004, Detective Sergeant Corcoran, Detective Garda Stephen Martin and Detective Garda Brian Whelan went to the accused's dwelling. Arriving at approximately 8.30pm, the Gardai knocked on the door which was answered by Mr. O'Brien. They produced the s. 29 warrant, explained its terms and began to search the dwelling. During the course of the search they found two mobile phones, a driving licence application, passport photographs, bodhráns bearing the name Bobby Sands and raffle tickets in aid of the families of paramilitary prisoners. This material was gathered by the Gardaí into evidence bags.

6 6. In addition, however, the officer deputed to search the upstairs bedrooms, Detective Garda Martin, found a sizeable sum of cash (€5,850) in an upstairs bedroom which Mr. O'Brien claimed, this matter having been put to him by the investigating Gardaí, represented a mortgage payment. At all events, Mr. O'Brien was arrested under s. 30 of the Act of 1939 at 8.45pm and the search of the dwelling concluded at 10pm.

7 7. There seems to have been some confusion at the trial as to whether this arrest took place before or after the money was discovered and whether the arrest was prompted by this discovery. Detective Garda Martin's notes might be thought to suggest that the arrest was prompted by the discovery of the cash, but in evidence he admitted that he was not sure of the precise sequence of events. Detective Sergeant Corcoran nevertheless maintained that he had always intended to arrest Mr. O'Brien under s. 30 and that the slight delay in effecting the arrest was occasioned by the fact that conditions were somewhat hostile when they first entered the house. While he was accepted that "other evidence" - i.e., presumably evidence gathered during the course of the search - "may have strengthened that belief", he insisted that he had always intended to arrest Mr. O'Brien.

8 8. Following his arrest under s. 30, the appellant was taken to Balbriggan Garda...