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Cite as:  IECCA 68
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Judgment Title: DPP -v- Barry O'Brien
Neutral Citation:  IECCA 68
Court of Criminal Appeal Record Number: 61/11
Date of Delivery: 02/07/2012
Court: Court of Criminal Appeal
Composition of Court: Hardiman J., Moriarty J., Hogan J.
Judgment by: Hardiman J.
Status of Judgment: Unapproved
Outcome: Quash conviction and direct re-trial
THE COURT OF CRIMINAL APPEAL
[No. 61/11 CCA]Hardiman J.
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
JUDGMENT of the Court delivered by Hardiman J. on the 2nd day of July, 2012
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  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  IECCA 64 and in The People (Director of Public Prosecutions) v. Kavanagh  IECCA 65.
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 Damache they must be objectively adjudged to be trespassers who had no lawful entitlement to be present in that dwelling at the relevant time.
The applicant was convicted by the Special Criminal Court on 7th December, 2010, of membership of an illegal organisation (namely, an organisation styling itself the Irish Republican Army, otherwise Oglaigh na hEireann on 6th April, 2004), contrary to s. 21 of the Act of 1939, as amended by s.2 of the Criminal Law Act 1976. On 23rd February, 201, the court imposed a sentence of three years and nine months, effective from 1st January, 2011.
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”.
On 6th 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.
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.
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.
Following his arrest under s. 30, the appellant was taken to Balbriggan Garda Station where he was questioned about his alleged membership of an illegal organisation. During the course of those interviews, Mr. O’Brien had access to legal advice. During the course of those interviews, the Gardaí invoked s. 2 of the Offences against the State (Amendment) Act 1998 (“the Act of 1998”) which, under certain circumstances, allows for inferences to be drawn from a failure to answer a question posed, although an accused cannot be convicted based on such failure alone. Opinion evidence was also given by Chief Superintendent McGee pursuant to s. 3(2) of the Offences against the State (Amendment) Act 1972 (“the Act of 1972”) to the effect that based on information available to him from a confidential source that Mr. O’Brien was a member of an illegal organisation.
In the course of its ruling on the legality of the search and the subsequent arrest, the Special Criminal Court noted that the issue raised concerning the constitutionality of s. 29 was “obviously arguable”, but it also observed that “as a matter of law this Court must rule against the defence on that submission”, given that the Special Criminal Court has no jurisdiction to pronounce upon the constitutionality of a statutory provision. The Court went on to reject the argument that the arrest was unlawful, saying that it was alleged that the:-
Can the applicant rely on the decision in Damache?
The issue of the extent to which a person in the positions of the appellant can rely on a subsequent finding of unconstitutionality was fully examined by this Court in its recent decisions in The People (Director of Public Prosecutions) v. Cunningham  IECCA 64 and The People (Director of Public Prosecutions) v. Kavanagh  IECCA 65. One may summarise these decisions by saying that, generally speaking, an appellant in this situation will be allowed to gain the benefit of such a finding of unconstitutionality where:-
The criminal proceedings against the appellant have not been finalised and either a trial or an appeal from conviction is still pending.
It is likewise clear that the criminal proceedings are still outstanding. Accordingly, judged by reference to the tests articulated by us in both Cunningham and Kavanagh, the appellant can properly rely on the decision in Damache.
If the appellant can rely on Damache, what consequences follow from this?
If the appellant can rely on Damache, then it follows that so far as he is concerned, the search of his dwelling must be judged to be objectively unlawful as a breach of the appellant’s constitutional right to the inviolability of the dwelling as guaranteed by Article 40.5. After all, the existence of the s. 29 warrant provided the only legal basis for the search. Yet it follows from the finding of unconstitutionality in Damache that neither the section nor the warrant on which it was based had any proper legal basis, even if, of course, the Gardai who searched Mr. O’Brien’s dwelling had no reason to believe that they were operating other than in a perfectly proper and lawful manner. There can, of course, be no suggestion on the facts of the present case that the Gardai had any express or implied licence to enter the dwelling, since the evidence was that the occupants of the dwelling were (at least initially) hostile to the presence of the Gardai and the Gardai entered the dwelling solely on the authority of the s. 29 warrant.
It is true that in its ruling of 7th December, 2010, the Special Criminal Court rejected the argument that the findings of the bodhráns, raffle tickets and cash in the appellant’s dwelling was sufficient to connect him with membership of an illegal organisation. However, the Court also concluded that in respect of one particular interview Mr. O’Brien had failed within the meaning of s. 2 of the Act of 1998 to answer “a number of questions put to him relating to the finding of his fingerprints” on a particular motor vehicle which had been stopped by the Gardaí. The court then concluded that:-
Counsel for the Director of Public Prosecutions, Mr. Clarke S.C., could not point us to any case where an arrest under s. 30 was held to be valid in circumstances such as these where the Gardaí, objectively speaking, were trespassers in a private dwelling. Of course, as this Court noted in The People (Attorney General) v. Hogan (1972) 1 Frewen 360, 362, the guarantee in Article 40.5 is “not against forcible entry only”. Rather, Article 40.5 by guaranteeing the “inviolability” of the dwelling reflects long standing constitutional traditions in both common law and civil law jurisdictions, features of which were stressed in both Damache and Cunningham respectively. This constitutional guarantee presupposes that in a free society the dwelling is set apart as a place of repose from the cares of the world. In so doing, Article 40.5 complements and re-inforces other constitutional guarantees and values, such as assuring the dignity of the individual (as per the Preamble to the Constitution), the protection of the person (Article 40.3.2), the protection of family life (Article 41) and the education and protection of children (Article 42). Article 40.5 thereby assures the citizen that his or her privacy, person and security will be protected against all comers, save in the exceptional circumstances presupposed by the saver to this guarantee.
In these circumstances, clear, direct and express language would be necessary before this Court would be prepared to impute to the Oireachtas an intention to override such a carefully protected constitutional rights: cf. by analogy the comments of Henchy J. in Director of Public Prosecutions v. Gray  I.R. 173, 281 and those of Griffin J. in Murphy v. Greene  2 I.R. 566, 577. Certainly, we cannot find in the general language of s. 30 of the Act of 1939 any words which would allow us to presume that the Oireachtas contemplated that an arrest under that section might lawfully made by members of An Garda Síochána of an occupant of that dwelling in circumstances where the arrest took place in the dwelling and where the Gardai had, objectively speaking, no authority to be present. As Henchy J. observed in Gray ( I.R. 173, 182), a case where the Supreme Court held that the arrest of the accused in his own dwelling under s. 107 of the Road Traffic Act 1961 was unlawful):-
Since, however, the judgment of the Special Criminal Court implicitly proceeds on the basis that Mr. O’Brien was in lawful custody at the time of the questioning under s.2 of the 1998 Act and further proceeds on the premise that the arrest at his dwelling was a lawful one, it must follow therefore that the conviction cannot stand in the wake of this conclusion. In view of this conclusion, it is unnecessary to consider any further submission.
In these circumstances, the Court will accordingly quash the conviction imposed by the Special Criminal Court and direct a re-trial of Mr. O’Brien.