The People (At the Suit of the DPP) v Vincent Banks

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 10 February 2022
• Neutral Citation: [2022] IESC 7
• Court: Supreme Court
• Docket Number: Record No. 2020/33

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

Vincent Banks

Appellant

[2022] IESC 7

O'Donnell C.J.

MacMenamin J.

Dunne J.

O'Malley J.

Woulfe J.

Record No. 2020/33

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Conviction – Membership of an unlawful organisation – Unlawful arrest – Appellant seeking to appeal against conviction – Whether the arrest of the appellant was lawful

Facts: The appellant, Mr Banks, was convicted of the offence of membership of an unlawful organisation, to wit the Irish Republican Army (the IRA), contrary to s. 21 of the Offences Against the State Act 1939 as amended. The indictment alleged that he was a member of that unlawful organisation on the 18th December 2012, which was the date on which he was arrested. The Court of Appeal rejected all grounds of appeal against conviction ([2019] IECA 319). Two issues arose in the appeal to the Supreme Court. The first was whether or not the arrest of the appellant was lawful. The dispute in that regard centred on the fact that the appellant had previously, in September 2012, been arrested on suspicion of membership of the IRA under the provisions of s. 30 of the 1939 Act, but had been released without charge. The defence argument was that the arrest in December 2012 was for the “same offence” as the September arrest, and that, pursuant to s. 30A of the Act, such an arrest could only be lawfully effected under the authority of a warrant issued by the District Court. The trial court followed the decision of the Court of Appeal in People (Director of Public Prosecutions) v A.B. [2015] IECA 139, and ruled that the second arrest of the appellant was not for the “same offence” as the first, because it took place in different circumstances and as part of a different investigation. The second issue concerned the effect of the claim of privilege made by the Detective Chief Superintendent who gave evidence that he believed that the appellant was a member of the IRA. The privilege claimed, and upheld by the trial court, covered all sources of information considered by the witness in forming his belief. The defence contended that the breadth of the claim was such that no meaningful cross-examination could be conducted by the defence.

Held by the Court that the arrest was not lawful. Since that finding would not necessarily dispose of the appeal, the Court considered the evidence presented by the prosecution against the appellant on the charge of membership. The Court reached the conclusion that the belief evidence of the detective superintendent, although admissible, was required to be supported by strong independent evidence because of the breadth of the claim of privilege made by the witness and the doubts caused by the absence of certain relevant information from the material examined by him. Having considered the other evidence in the case, the Court did not consider that it reached the necessary standard to support the belief evidence. While the Court found that there were grounds for grave suspicion in relation to the appellant’s role in sourcing a car that was ultimately used in a murder, it did not believe a sufficiently strong link had been demonstrated with the offence of membership beyond reasonable doubt.

The Court allowed the appeal.

Appeal allowed.

Judgment of Ms. Justice Iseult O'Malley delivered the 10 ^th February, 2022 .

Introduction

1 The appellant in this case has been convicted of the offence of membership of an unlawful organisation, to wit the Irish Republican Army (“the IRA”), contrary to s.21 of the Offences Against the State Act 1939 as amended. The indictment alleged that he was a member of that unlawful organisation on the 18 ^th December 2012, which was the date on which he was arrested.

2 Two issues arise in the appeal. The first is whether or not the arrest of the appellant was lawful. The dispute in that regard centres on the fact that the appellant had previously, in September 2012, been arrested on suspicion of membership of the IRA under the provisions of s.30 of the Offences Against the State Act 1939, as amended, but had been released without charge. The defence argument was that the arrest in December 2012 was for the “ same offence” as the September arrest, and that, pursuant to s.30A of the Act, such an arrest could only be lawfully effected under the authority of a warrant issued by the District Court. The trial court followed the decision of the Court of Appeal in People (Director of Public Prosecutions) v. A.B. [2015] IECA 139 (“ A.B.”), and ruled that the second arrest of the appellant was not for the “ same offence” as the first, because it took place in different circumstances and as part of a different investigation.

3 The second issue concerns the effect of the claim of privilege made by the Detective Chief Superintendent who gave evidence that he believed that the appellant was a member of the IRA. The privilege claimed, and upheld by the trial court, covered all sources of information considered by the witness in forming his belief. The defence unsuccessfully contended that the breadth of the claim was such that no meaningful cross-examination could be conducted by the defence.

4 The Court of Appeal rejected all grounds of appeal including those relating to the two issues now before this Court (see People (Director of Public Prosecutions) v. Banks [2019] IECA 319).

The statutory context

5 Section 30A of the Offences Against the State Act 1939, as amended, confers a degree of protection against repeated arrests and detention where a person has been detained under the Act in respect of an offence and then released without charge. In its original form, the provision, inserted by s.11 of the Offences Against the State ( Amendment) Act 1998, prohibited ( inter alia) a further arrest “ for the same offence” except under the authority of a warrant issued by a judge of the District Court. It was later amended by the substitution of a new subs.(1) by s.21(2) of the Criminal Justice (Amendment) Act 2009, and the words “ for the same offence” were replaced with “ in connection with the offence to which the detention related”. Subsection (1) now provides as follows:

(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 30 of this Act and is released without any charge having been made against him, he shall not—

(a) be arrested again in connection with the offence to which the detention related, or

(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Síochána by whom he was arrested, suspected, or ought reasonably to have suspected, him of having committed,

except under the authority of a warrant issued by a judge of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that either of the following cases apply, namely –

• (i) further information has come to the knowledge of the Garda Síochána since the person's release, as to his suspected participation in the offence for which his arrest is sought,

• (ii) notwithstanding that the Garda Síochána had knowledge, prior to the person's release, of the person's suspected participation in the offence for which his arrest is sought, the questioning of the person in relation to that offence, prior to his release, would not have been in the interests of the proper investigation of the offence.

6 Subsection (2) provides for the application of the general s.30 detention regime to a person arrested under warrant in accordance with this procedure. Subsection (3) makes it clear that, notwithstanding subs.(1), a person may be arrested for any offence for the purpose of being brought before the Special Criminal Court to be charged.

Background to the membership trial

7 The sequence of events in this case is slightly confusing and it is best to set it out chronologically before turning to the issues in the trial and appeal.

8 The appellant was arrested under the provisions of s.30 on the 13 ^th September 2012, on suspicion of membership of the IRA and the possession of firearms. The basis for that arrest was that on the 8 ^th September he had been in attendance at the funeral of Mr. Alan Ryan, a man who was believed to have been a member of the IRA and who had been murdered. A paramilitary-style “colour party” had fired shots over the coffin while it was outside the residence of the deceased. The men who fired the shots appear to have then got into the appellant's van to change out of their paramilitary garb before disappearing into the crowd.

9 There was a garda investigation into this incident, and the appellant was one of about 18 people arrested. During the course of this detention his fingerprints were taken in the normal way. He denied both the possession of firearms and membership throughout his period of detention and questioning, maintaining that he did not know the deceased and was just “giving a hand” at the funeral. He was released without charge on the 14 ^th September. It is agreed between the parties that this arrest was recorded on the Garda PULSE system.

10 On the 1 ^st November 2012, a prison officer named David Black was murdered in Northern Ireland, a crime believed by the Police Service of Northern Ireland and the Garda Síochána to have been carried out by the IRA. The subsequent investigation involved both forces. A considerable body of evidence was discovered indicating that the car that was used by the perpetrators of the murder had been purchased by the appellant in Dublin on the 10 ^th October 2012. On the 18 ^th December 2012 the appellant was again arrested, without warrant, this time on suspicion of withholding information (on the 1 ^st November 2012) about the murder of Mr. Black, contrary to s.9(1)(b) of the Offences Against the State (...