Kevin Braney v Ireland and the Attorney General

JurisdictionIreland
CourtSupreme Court
JudgeMr Justice Peter Charleton
Judgment Date12 February 2021
Neutral Citation[2020] IESC 7
Docket NumberSupreme Court appeal number: S:AP:IE:2020:000064 High Court record number 2018/872JR
Date12 February 2021
Between
Kevin Braney
Accused/Appellant
and
Ireland and the Attorney General
Respondent

and

The Director of Public Prosecutions
Notice Party

[2020] IESC 7

O'Donnell J

McKechnie J

MacMenamin J

Charleton J

O'Malley J

Supreme Court appeal number: S:AP:IE:2020:000064

[2020] IEHC 222

High Court record number 2018/872JR

An Chúirt Uachtarach

The Supreme Court

Detention – Offences Against the State Act 1939 s. 30 – Constitutionality – Appellant seeking judicial review – Whether the appellant’s detention was unconstitutional

Facts: The appellant, Mr Braney, stood convicted that on 2 August 2017 he was a member of the self-styled Irish Republican Army or Óglaigh na hÉireann. He challenged the validity of s. 30(3) of the Offences Against the State Act 1939, the police power on which he was arrested and questioned. By determination dated 30 July 2020, the Supreme Court granted leave to appeal from the ruling of the High Court ([2020] IEHC 222), dismissing claims of unconstitutionality and incompatibility: [2020] IESCDET 95. Mr Braney asserted that, because the provisions regarding extension of detention under s. 30 of the 1939 Act differ from those applying to other forms of arrest, such as under the Criminal Justice Act 1984, there is a contravention of the Constitution and the European Convention on Human Rights. In addition, Mr Braney drew an analogy with the procedure for searching a suspect’s home, the subject of the decision in Damache v DPP & Others [2012] IESC 11: as only a judge or uninvolved police officer can issue a search warrant, only a judge or uninvolved police officer can extend detention. On his argument, any differentiation in procedure between search warrants and extension of detention upon arresting a suspect infringes Article 40.1 of the Constitution.

Held by the Court that the only difference between the procedure of extending detention under the 1984 Act and the 1939 Act is that under the former a second opinion of a garda in charge of the station is required; aside from this, there remains a floor of rights applicable to both forms of arrests and detentions. The Court held that both searches and detention involve the infringement of rights, but that does not mean that the procedures applying to both have to be identical. The Court held that any argument which proposes that the safeguards in place for searches should, by way of analogy, be applied to an extension of detention, must be rejected as untenable.

The Court held that the claim of Mr Braney that s. 30 of the 1939 Act contravenes the Constitution and the European Convention on Human Rights would be dismissed.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Friday 12 February 2021

1

Kevin Braney stands convicted that on 2 August 2017 he was a member of the self-styled Irish Republican Army or Óglaigh na hÉireann. He challenges the validity of s 30(3) of the Offences Against the State Act 1939, the police power on which he was arrested and questioned. This authorises the gardaí to arrest a suspect on reasonable suspicion of certain very serious offences. These are offences scheduled under the 1939 Act. Since the Criminal Justice Act 1984, under general arrest powers applying to all offences carrying a possible maximum penalty of 5 years imprisonment or more, an arrestee's detention for questioning in a Garda station must also be authorised as necessary for the investigation of the offence by another Garda officer in charge of the station; s4(2) of the 1984 Act. Section 30 of the 1939 Act does not require this. Initially, a person arrested under s 30(3) may be held and questioned for up to 24 hours. Section 30(3) also enables the initial 24 hours of detention upon arrest to be extended for a further 24 hours on the authorisation of a Chief Superintendent, who is not necessarily a Garda officer independent of the enquiry which led to the suspect's arrest. It is contended by Kevin Braney that, under the Constitution and the European Convention on Human Rights, for a detention for investigation or questioning to be valid, a second opinion, from the Garda in charge of the station, as to the validity of the arrest and the necessity for detention, is required.

2

Further, arguing on the basis of what is claimed to be an analogous police power, that of the search of a home, the accused asserts, invoking Damache v DPP & Others [2012] IESC 11, [2012] 2 IR 266, that, apart from emergency, since only a judge or an uninvolved police officer may issue a search warrant, similarly only a judge or an uninvolved police officer can extend the initial 24 hours of detention by a further 24 hours. Here, it might immediately be noted that detention outside s 30 arrest is extended by a police officer: thereby a 6 hour detention can become a 12 hour detention upon arrest; s4(3)(b) of the 1984 Act. In so far as there is a difference between the procedures for arrest and detention as between s 30 and other forms of arrest and detention for different offences, this is argued by Kevin Braney to infringe Article 40.1 of the Constitution whereby all “citizens … as human persons” are to be “held equal before the law”. This difference in procedures is also argued to be incompatible with the European Convention on Human Rights.

3

In The People (DPP) v Quilligan and O'Reilly (No 3) [1993] 2 IR 305, this Court has already held that the provisions of s 30 of the 1939 Act were not repugnant to the Constitution. The accused asks for this authority to be reviewed. The standard whereby this Court might overturn precedent thus requires analysis. Finally, issues as to inferences from failure to answer pertinent questions relevant to a charge of membership of an unlawful organisation, a scheduled offence under the 1939 Act, are also brought into contention by Kevin Braney and are asserted to be unconstitutional and incompatible with the Convention.

4

By determination dated 30 July 2020, this court granted leave to appeal from the ruling of the High Court, Barr J [2020] IEHC 222, dismissing the claims of unconstitutionality and incompatibility; [2020] IESCDET 95. This was done mainly on the basis of the binding precedent in Quilligan and O'Reilly. The issues raised in the application for leave were regarded as being of general public importance and because of the binding precedent governing any appeal, this in part constituted an exceptional but not automatic circumstance justifying a direct appeal to this Court from the High Court.

Approach to facts
5

It was by a process of judicial review as to the constitutionality and compatibility of s 30 that this case reached the High Court, and not by an appeal to the Court of Appeal from the conviction for a criminal offence. Following a two-week trial, Kevin Braney was convicted before the Special Criminal Court on 30 May 2018 of membership of an unlawful organisation, styling itself the Irish Republican Army or Óglaigh na hÉireann. The Defence Forces of Ireland are properly called Óglaigh na hÉireann; military.ie. Other organisations claiming to be the ‘Army’ of the Irish Republic and usurping the legitimate army of the State, for terrorist purposes, are prescribed organisations under the Offences Against the State Act 1939. Membership of such is an offence carrying a potential maximum penalty of eight years imprisonment; s21(2)(b) of the 1939 Act, as amended. Kevin Braney was imprisoned, following a written ruling of the Special Criminal Court finding him guilty of that offence, for four years and six months.

6

In light of the ordinarily binding nature of facts found by the High Court when an appeal is brought, the circumstances whereby Kevin Braney mounts this challenge to the constitutionality of s 30(3) of the 1939 Act are properly to be derived from the judgment of Barr J; Ryanair v Billigfluege.de GmbH and others [2015] IESC 11 as to affidavit evidence and an appellant bearing the burden of proof that facts found were unreasonable and Doyle v Banville [2012] IESC 25 and Hay v O'Grady [1992] 1 IR 210 as to the binding nature of a finding on oral evidence.

Background facts
7

Initially, the High Court set out the event which was central to the charge that on 2 August 2017 Kevin Braney was a member of the self-styled Irish Republican Army or Óglaigh na hÉireann. Barr J set out that he was arrested by a police officer on that day, the day to which the charge relates, and that he was detained initially on foot of that arrest for 24 hours and that the detention was extended for a further 24 hours by Chief Superintendent Thomas Maguire in accordance with the impugned section. The circumstances prior to the arrest and as a basis for the findings of the Special Criminal Court at Kevin Braney's criminal trial were set out by Barr J thus:

8. The background to that arrest arose in the following circumstances: the applicant had been seen on a number of occasions prior to 13th July, 2017 in the company of, and in conversation with, men who had been convicted of various offences contrary to the 1939 Act. In particular, the applicant had been present as a member of the public at a sentence hearing before the Special Criminal Court held on 6th February, 2017 when one Patrick Brennan was being sentenced for possession of explosives and detonators. Evidence was given that in the course of the sentence hearing, the court put it to Mr. Brennan that he would need to undertake to renounce subversive activities if he wished to avail of a suspension of two years of the proposed sentence of seven years. At the applicant's trial, a Sergeant Boyce gave evidence that when this was put to Mr. Brennan, he looked over at the applicant and then declined to make any indication that he would renounce subversive activities and accordingly the sentence of seven years stood.

9. The pivotal evidence at the trial, concerned the applicant's movements and...

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