Patrick Brennan and Others v The Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Geoghegan
• Judgment Date: 12 March 2008
• Neutral Citation: [2008] IESC 12
• Docket Number: [2007 Nos. 1584, 1585, 1586, 1587 and 1588,Appeal Nos. 314/315/3161317 & 322/2007
• Date: 12 March 2008

THE SUPREME COURT

Geoghegan J.

Fennelly J.

Kearns J.

Appeal Nos. 314/315/3161317 & 322/2007

BETWEEN/

PATRICK BRENNAN, JOHN TROY, SEAN O'DONNELL, THOMAS GIBSON AND STEPHEN BIRNEY

Respective Applicants/Appellants

and

THE GOVERNOR OF PORTLAOISE PRISON

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

Abstract:

Criminal law - Constitutional law - O' Brien v. Special Criminal Court - Forthwith - Delay - Habeas corpus - Appeal from Court of Criminal Appeal

Facts: Five convicted prisoners sought their release pursuant to Article 40.4.2 of the Constitution. The appellants alleged that they had been brought before the Special Criminal Court unlawfully, pursuant to the decision of the Supreme Court in O' Brien v. Special Criminal Court. Two years had elapsed since their appearance before the lower Court and no judicial review proceedings had been taken.

Held by the Supreme Court per Geoghegan J. that the appeal would be dismissed. The appellants had not taken proceedings at the appropriate time. Judicial review proceedings had not been taken that were possible at the time. No application was made to the Court of Criminal Appeal for a s. 29 certificate and so the decision of the Court was final.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Geoghegan delivered the 12th day of March 2008

2 Giving reasons for his concurrence with the judgment of the court pronounced extempore on the 5th day of December 2007

3 These are five respective appeals brought by five convicted prisoners who were tried, convicted and sentenced to prison by the Special Criminal Court and whose respective applications for leave to appeal to the Court of Criminal Appeal from such convictions and sentences were refused. The appeals are from five respective orders made by the High Court (O'Neill J.) refusing an order for release in each case in respect of applications in that regard under Article 40 (4)(2) of the Constitution, the High Court having been satisfied that the respective returns to the conditional orders made on the 6th November, 2007 were good and sufficient and that each applicant was being detained in accordance with law. The Article 40 applications were made on the basis that none of the appellants was originally lawfully brought before the Special Criminal Court and that, therefore, allegedly, the Special Criminal Court had no jurisdiction at any stage to deal with them. The impetus to bring this particular application arose from a decision of this court in a judicial review application, O'Brien v. The Special Criminal Court [2007] I.E.S.C. 45 (unreported concurring judgments of Denham J. and Fennelly J. with which Murray C.J. agreed).

4 O'Brien had been charged with membership of the IRA arising out of the same events as similar charges against the appellants. Under the provisions of Section 30A of the Offences against the State Act, 1939, as inserted by section 11 of the Offences against the State ( Amendment) Act, 1998, a person rearrested with a view to charge after detention under section 30 of the 1939 Act is required to be brought before the Special Criminal Court "forthwith"to be charged. Because of problems of forming a court in Holy Week there was delay in bringing O'Brien before the court. He had to stay in garda detention overnight before it could be done. This court held that the word "forthwith"had to be construed strictly especially as it seemed to contrast with words used in a somewhat analogous situation namely "as soon as practicable". Since the Special Criminal Court had jurisdiction to try a person only if that person had been lawfully brought before the court, this court held in the O'Brien case that the court had no jurisdiction and ordered that a decision of the Special Criminal Court holding otherwise be quashed.

5 Two weeks after the delivery of judgment in the O'Brien case the appellants brought the Article 40 application to the High Court, the subject matter of this appeal.

6 The High Court (O'Neill J.) refused the application, as already mentioned, on really one ground only. In a judgment of the Court of Criminal Appeal

7 in the case of DPP v. Kehoe [1985] 1 IR 444, delivered by McCarthy J. and dealing with a jurisdictional point relating to the Special Criminal Court it was held that an objection to jurisdiction normally had to be made when the accused was first brought before the court. If the point was not taken at that stage, to quote McCarthy J., "it is spent". As that did not happen in this case, O'Neill J. refused the application.

8 I have come to the firm conclusion that this appeal must be dismissed on more than one ground including the failure to take and pursue objection at the appropriate time. On that particular ground, however, my reasons do not totally correspond with those of the learned High Court judge, as I will be explaining.

9 Fundamental to some respectful differences I have with the judgment of the learned High Court judge is the following paragraph contained in it.

10 "Having read the affidavits, I am satisfied that in so far as the jurisdiction of the Special Court is concerned there is no difference between the circumstances of Mr. O'Brien's case and of these five applicants and in all material respects their circumstances were identical and I don't think there is really any dispute about that."

11 Not only does there appear to be every dispute, but in my view, counsel for the respondent quite rightly point out that there are differences which are both substantial and highly relevant. I will return to these later in the judgment.

12 I think it appropriate in the first instance to concentrate on what I see as a fundamental procedural objection to the Article 40 application. These appellants were arrested on the 11th October, 2002 under section 4 of the Criminal Justice Act, 1984 for questioning in relation to an ordinary crime. As a consequence of their investigations, the gardaí became suspicious that the crime was an IRA venture of some sort. As a consequence, the appellants were arrested under section 30 of the Offences against the State Act, 1939. After further questioning, the DPP directed that the appellants were to be released but were to be rearrested under section 4 (3) of the Criminal Justice Act, 1997 and taken to the Special Criminal Court to be charged with membership of the IRA. According to the affidavits sworn on behalf of the respective appellants, the appellants were informed on the night of the 12th October, 2002 that they were to be brought before the Special Criminal Court on the following day for the purpose of being charged with a scheduled offence pursuant to the instructions of the DPP. On the morning of the 13th October, 2002, the appellants were conveyed from Bray Garda Station to the Special Criminal Court where each of them was charged with an offence of membership of an unlawful organisation. It is, therefore, calculated that the appellants were detained for thirteen hours and twenty four minutes from the rearrest at 10.06 p.m. on the previous evening to the time of charge before the court. No objection, however, was raised on behalf of any of the appellants to the manner in which they were brought before the court and it was not suggested that it was unlawful and still less was it suggested that they had not been brought "forthwith"the only point on which Mr. O'Brien was successful in his case. In fact what then happened was that each of the appellants applied for bail. Bail was refused and there followed a number of remands all on consent culminating in December 2004. Not only did they not raise the jurisdiction issue during that two year period before the court itself but they made no attempt to obtain by way of judicial review any order preventing the trial. Indeed one of the remands consented to was apparently for a period of eight weeks.

13 What then happened was that Mr. O'Brien of the O'Brien case who as far

14 as the Garda Síochána were concerned was the sixth person involved in the criminal escapades which originally gave rise to the prosecution, was himself arrested for questioning on 6th April 2004 and then by the direction of the DPP released and rearrested on 8th April 2004 to be brought before the Special Criminal Court to be charged. As I have already explained, this court took the view he was not lawfully brought before the court in that he was not brought "forthwith".That decision, however, was in the context of an immediate objection being taken to the legality of the procedure in bringing him to the court followed by a judicial review application. The Special Criminal Court fixed the 13th December, 2004 for a hearing of his challenge to the jurisdiction. I should have mentioned that that challenge was raised prior to arraignment. Only at that stage did the appellants raise a jurisdiction objection. In reality, they did so as a consequence of Mr. O'Brien's objection. The court fixed the same date for hearing all the objections. The court, following on the hearing, rejected all the challenges, that is to say, the challenges of Mr. O'Brien and the challenges of the appellants. Mr. O'Brien succeeded in having his trial adjourned pending an application by him to the High Court for judicial review. He was granted leave to bring the application for judicial review by Macken J. and subsequently the application itself was heard and determined by MacMenamin J. The application was refused, but as I have already explained, the appeal from that refusal by Mr. O'Brien was successful. In the meantime, the trial of the appellants proceeded on the 14th December, 2004 and lasted some weeks. The appellants made no attempt to bring judicial review proceedings but having been convicted by the Special Criminal Court, they sought leave to appeal the conviction from the Court of Criminal Appeal having been refused an...