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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'Brien -v- The Special Criminal Court & Anor [2007] IESC 45 (24 October 2007) URL: http://www.bailii.org/ie/cases/IESC/2007/S45.html Cite as: [2008] 4 IR 514, [2007] IESC 45, [2008] 1 ILRM 510, [2010] 1 IR 609 |
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Judgment Title: O'Brien -v- The Special Criminal Court & Anor Composition of Court: Murray C.J., Denham J., Fennelly J. Judgment by: Denham J. Status of Judgment: Approved
Outcome: Appeal Allowed | |||||||||||||
THE SUPREME COURT [S.C. No: 349 of 2005] Murray C.J. Denham J. Fennelly J. Between/ Barry O'Brien Applicant/Appellant and The Special Criminal Court and the Director of Public Prosecutions Judgment delivered the 24th day of October, 2007 by Denham J. ![]() ![]() 2. The applicant is facing trial before the Special Criminal Court on the charge of membership of an unlawful organisation on the 6th April, 2004, pursuant to s.2 of the Offences Against the State Act, 1939 to 1998. 3. It is the applicant's case that the Special Criminal Court has no jurisdiction to try him on the charge because he is not lawfully before the Special Criminal Court for trial under the Offences Against the State Acts, 1939 to 1998 and that the decision of the Special Criminal Court of the 14th December, 2004 was ultra vires the powers of the Special Criminal Court. On behalf of the applicant it was submitted that he was not lawfully before the Special Criminal Court:-
(ii) Even if this Court does not uphold that submission it was contended that that section does not authorise the detention of any person for the purpose of making him amenable to be charged at a later date. (iii) It was submitted that the means used in this case were prohibited by s.30(A)( ![]() ![]() On the 17th January, 2005 the applicant was given leave to apply for judicial review for the following reliefs:-
(b) Declaration by way of Judicial Review that the Special Criminal Court has no jurisdiction to try the applicant on the charge of membership of an unlawful organisation under section 21 of the Offences Against the State Act, 1939/98, because the applicant is unlawfully before the Special Criminal Court.
5. The High Court In a judgment delivered on 28th July, 2005 the High Court, having reviewed the law and the facts, held:
It follows from these findings that the Court will hold that the Special Criminal Court has jurisdiction, that the applicant is lawfully before it, and that the trial should be permitted to proceed in accordance with law. The Court will therefore decline the application for judicial review." 6. Grounds of Appeal The applicant has appealed against that decision of the High Court, filing twenty five grounds of appeal. At the core of this appeal is the query as to how a person may be 'lawfully brought' before the Special Criminal Court. May a person be lawfully brought before the Special Criminal Court only by way of provisions of the Offences Against the State Acts? Or, may the provisions of the general criminal law be used by the authorities? And, is s.30A of the Offences Against the State Act, 1939 to 1998 applicable? If it is applicable, what is the meaning of 'forthwith'? 7. The Law The Offences Against the State Act, 1939, s.43, provides:
![]() ![]() [the emphasis is added] The key words are "lawfully brought". I shall return to these words later in the judgment. Section 47 refers to the bringing of a person before the Special Criminal Court. It provides:
![]() ![]() (2) Whenever it is intended to charge a person with an offence which is not a scheduled offence and the Director of Public Prosecutions certifies that the ordinary Courts are, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, the foregoing sub-section of this section shall apply and have effect as if the offence with which such person is so intended to be charged were a scheduled offence. (3) Whenever a person is required by this section to be brought before a Special Criminal Court and charged before that Court with such offence, it shall be lawful for such Special Criminal Court to issue a warrant for the arrest of such person and the bringing of him before such Court and, upon the issue of such warrant, it shall be lawful for such person to be arrested thereunder and brought in custody before such Court." Relevant law on arrest is to be found in s.4(3) of the Criminal Law Act, 1997, which provides:-
The issue of rearrest is addressed in the Offences Against the State Act, 1939 s.30A, which was inserted by s. ![]() ![]()
![]() ![]()
(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,
![]() ![]()
![]() ![]() (c) the addition of the following at the end of subsection (4C):
warrant issued pursuant to section 30A of this Act, by subsection (3) of this section as substituted by the said section 30A.'. ![]() ![]() [the emphasis is added] Key words relevant to this case are: 'for the purpose of charging him with that offence forthwith'. 8. "Lawfully Brought" The first question to be determined is to what the words 'lawfully brought', in s.43 of the Offences Against the State Act 1939 to 1998, refer. Does it have a restrictive meaning and mean 'lawfully brought' pursuant to procedures under the Offences Against the State Act 1939 to 1998? Or, does it have a more general meaning, and mean 'lawfully brought' pursuant to law? 9. I am satisfied that the words of s.43( ![]() ![]() 10. I am affirmed in this view by, and I adopt the judgment of, the Court of Criminal Appeal, in Birney v. D.P.P. [2006] IECCA 58 (12th May, 2006). The judgment of the Court was delivered by Hardiman J. That court held:-
Similarly I adopt and apply the decision of the Court of Criminal Appeal in The People (D.P.P.) v. Pringle and McCann (1981) 2 Frewer 57, where, at p.90 - 91, the judgment of the Court, delivered by O'Higgins C.J. was as follows:
![]() ![]() 12. Direction by the D.P.P. The Director of Public Prosecutions has power, pursuant to s.47 of the Offences Against the State Act 1939, to direct that a person be brought before the Special Criminal Court to be charged, instead of being charged before the District Court. Section 47( ![]() ![]() 13. Arrest The arrest in this case was under s.4 of the Criminal Law Act, 1997. The section has been set out earlier in this judgment. This is a statutory form of the common law power of arrest. It is a general power of arrest. The Offences Against the State Act, 1939 to 1998, does not specifically exclude the use of the general power of arrest. To interpret an exclusion of this general power of arrest, from the procedures leading to the use of the jurisdiction of the Special Criminal Court, would require that specific and express words be read into the legislative scheme, either specifically prohibiting such general powers of arrest, or specifically requiring only the use of the Act itself, in prosecutions under the Offences Against the State Act, 1939 to 1998. No such specific or express words are present in the legislative scheme, nor may they be inferred. To make such an inference would be to legislate, and so would be a step too far. Therefore, I am satisfied that the legislature did not exclude the use of the general power of arrest in the prosecution of offences in, and the exercise of, the jurisdiction of the Special Criminal Court. 14. 'As soon as Practicable' A timescale is provided for in s.15(2) of the Criminal Justice Act, 1951, as inserted by s.18 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, which states:
This timescale envisages that an arrested person will be brought 'as soon as practicable' before the Court, and it has been held to apply to the Special Criminal Court. Such an approach was taken in Birney v D.P.P., [2006] IECCA 58 (Court of Appeal, 12th May, 2006), where that Court held, at p.9:-
![]() ![]() This decision relates to a situation on an arrest. However, in this case the circumstances are different. At issue is a re-arrest. 15. Re-Arrest As the applicant was re-arrested it is necessary to consider the relevant law. It was submitted on behalf of the applicant that s.30(A) of the Offences Against the State Act, 1939 to 1998 applies and that pursuant to that section a re-arrest is prohibited, unless, pursuant to s.30(A)(3), the re-arrest is for the purpose of charging him with the offence 'forthwith'. It was submitted that the word 'láithreach' is used in the first official language in s.30(A)(3) of the Offences Against the State Act, 1939 to 1998, which should be interpreted as 'immediately', It was submitted that the Oireachtas intended that an accused person released without charge following detention on suspicion of having committed a membership offence might only be re-arrested for the same offence for the purpose of being charged with that offence immediately. It was submitted that the applicant was detained for a period of fifteen hours and twenty minutes from his re-arrest under s.4 until being charged, and that this cannot be construed as 'immediately'. 16. Section 30A addresses the situation of a re-arrest. It was inserted by s. ![]() ![]() ![]() ![]() ![]() ![]() This intent is also manifest in s.30A(3). Section 30A(3) sets out a further exception to the prohibition on a re-arrest in s.30A( ![]() ![]() Thus it is necessary to consider the facts to determine the relevant law. 17. The Facts The applicant was arrested on 6th April, 2004 at 8.45 pm under s.30 of the Offences Against the State Act, 1939, as amended, on suspicion of having committed the offence of membership of an unlawful organisation on the 6th of April, 2004 under s.21 of the Offences Against the State Act, 1939, as amended. He was brought to Balbriggan Garda Station under s.30 of the Offences Against the State Act, 1939 as amended. At 8.20 pm on the 7th April, 2004 Chief Inspector Finnegan authorised the extension of the applicant's detention for a period of 24 hours to commence at the expiry of his first period of detention. At 5.25 pm on the 8th April, 2004 a direction was received from the Director of Public Prosecutions that the applicant be charged with membership of an unlawful organisation. The applicant was neither charged nor released at that time. At 8.25 pm on 8th April, 2004 the applicant was released from his detention under s.30 of the Offences Against the State Act, 1939, as amended. Immediately at 8.35 pm the applicant was re-arrested at Tankardstown, Balbriggan under s.4 of the Criminal Law Act, 1997, for the offence of membership of an unlawful organisation under s.21 of the Offences Against the State Act, 1939, as amended. The applicant was cautioned and brought to Balbriggan Garda Station and detained. At 8.51 pm on the 8th April, 2004 the applicant was informed that he would be brought to the next sitting of the Special Criminal Court and charged there with the offence. Attempts had been made to convene a Special Criminal Court. It was Holy Thursday. At 8.33 p.m. on that day the Garda Síochána had become aware that the Special Criminal Court had been convened to sit at 12 noon on 9th April, 2004, i.e. Good Friday. The applicant was told he would be brought before the sitting of the Special Criminal Court at 12 noon the next day, i.e. 9th April, 2004, being Good Friday. On the 9th April, 2004 the applicant was brought before the Special Criminal Court where he was charged and remanded in custody. Thus, the applicant was originally arrested under s.30 of the Offences Against the State Act, 1939, as amended, on 6th April, 2004 at 8.45 pm. He was then re-arrested under s.4 of the Criminal Law Act, 1997 at 8.35 p.m. on the 8th April, 2004. 18. Section 15(2) of the Criminal Justice Act, 1951 would have required that he be brought before the Special Criminal Court as soon as practicable. As to what is practicable will depend upon all the circumstances of a case. The learned trial judge held:
I would agree that the time was 'as soon as practicable', however, that is not the appropriate test. 19. The test to be applied is not 'as soon as practicable'. Rather, the correct test is whether he was brought 'forthwith', pursuant to s.30A(3) of the Offences Against the State Act, 1939, as amended. While s.4 of the Criminal Law Act, 1997 may be used to bring a person before the Special Criminal Court, if that arrest is a re-arrest it is a subject to the specific statutory requirement relating to a re-arrest as set out in s.30A of the Offences Against the State Act, 1939, as amended. Section 30A provides for the situation of a re-arrest after an arrest and detention under the Offence Against the State Act, 1939, as amended. Thus, even though it was an arrest under s.4 of the Criminal Justice Act, 1997, the requirements of s.30A(3), as inserted by s. ![]() ![]() 20. Therefore it is necessary to consider whether the applicant was charged, pursuant to s.30A(3), that is 'forthwith'. The word "forthwith" is not a technical term, or a term of art. It should be given its common and usual meaning. It is defined in the Concise Oxford Dictionary as: "immediately; without delay". Thus the law requires that a person in the position of the applicant be charged immediately, without pause or delay. The term 'forthwith' requires immediate action. This is in contrast to the pragmatic requirement in the term 'as soon as practicable'. Counsel referred to an amendment to the law, but any such amendment may not be used to construe the law in issue. 21. Was the applicant charged immediately? The answer has to be in the negative. He was arrested at 8.35 pm on 8th April, 2004 and charged before the Special Criminal Court shortly after 12.00 noon on 9th April, 2004. In all the circumstances this was 'as soon as practicable', but that is not the requirement of the law. The law required that he be charged "forthwith", and that was not done. Therefore his detention prior to charging was unlawful 22. For the reasons given I would allow the appeal, quash the decision of the Special Criminal Court of the 14th December, 2004, and declare that the Special Criminal Court has no jurisdiction to try the applicant on the charge. JUDGMENT delivered on the 24th day of October, 2007 by FENNELLY J. ![]() ![]() 2. His essential complaint is that the Special Criminal Court’s jurisdiction depends on an accused person being brought before it following arrest provided for by the Offences against the States Acts, whereas he was arrested pursuant to section 4 of the Criminal Law Act, 1997. There is an alternative claim that, assuming the arrest to have been valid, he should have been charged “forthwith.” 3. The essential facts are not in dispute. They are set out in full in the judgment of McMenamin J. The legal issues require only the following very brief summary. 4. The Appellant was arrested on 6th April 2004 on foot of a warrant under section 29 of the Offences against the State Act, 1939. He was detained at Balbriggan Garda Station pursuant to section 30 of that Act on suspicion of having committed the offence of being a member of an unlawful organisation, contrary to section 21 of the Act. No other charge arises in the case. All references to charging relate to that single offence. His detention pursuant to section 30 commenced at 10:30 pm on 6th April. His detention was extended by a Chief Superintendent. The full period of detention was due to expire at 10:30 on 8th April. None of the foregoing is in contention. 5. Detective Superintendent Diarmuid O’Sullivan, the officer in charge of the investigation, was informed at 5.25 pm on 8th April that the second-named Respondent (hereinafter “the Director”) had directed that the Appellant be brought before a Special Criminal Court pursuant to section 47 of the Offences Against the State Act to be charged with being a member of an unlawful organisation. The Appellant was not, however, either charged or released at that point. In fact, the day was Holy Thursday. A special sitting of the Special Criminal Court had to be arranged. 6. Once arrangements were in place for such a sitting to take place on the following day at 12 noon, Detective Superintendent O’Sullivan, at 8.35 pm on 8th April, gave instructions for the Appellant to be released from his detention pursuant to section 30, and to be immediately re-arrested under section 4 of the Criminal Law Act, 1997 for the membership offence already mentioned. Following his release and re-arrest, the Appellant was cautioned and conveyed back to Balbriggan Garda Station where he was detained for the purpose of being brought before the Special Criminal Court to be charged with the offence. The Appellant was informed at 8.51pm on 8th April 2004 that he would be brought before a sitting of the Special Criminal Court the next day and charged there with the offence. 7. On the morning of 9th April 2004 (Good Friday), the Appellant was conveyed from Balbriggan Garda Station to the Special Criminal Court. He was charged before the court with the offence of membership of an unlawful organisation, namely, the I.R.A., otherwise Oglaigh na hEireann, otherwise the Irish Republican Army. 8. From the moment of his first appearance, the Appellant, first through his solicitor and later through counsel, contested the jurisdiction of the Special Criminal Court to try him on the ground which has now been argued before this court, namely that the Appellant was not lawfully before that court. 9. The Special Criminal Court, on 14th December 2004, following full argument, rejected the Appellant’s challenge to its jurisdiction. The Appellant obtained leave to apply for judicial review by way of certiorari of that decision and a declaration that the Special Criminal Court lacked jurisdiction. The present appeal is taken from the judgment of McMenamin J, following full hearing, dismissing that application. 10. Ms Deirdre Murphy, Senior Counsel, appeared for the Appellant. She argued that the Special Criminal Court is a special court, constituting an exception under the Constitution to the right to trial in the ordinary courts with a jury. Its rules and procedures must be construed strictly. Where the Offences against the State Acts provide procedures for arrest, they should be regarded as the only ones applicable. A person cannot be brought before the Special Criminal Court following arrest pursuant to any power other than those specified in the Acts. I will refer to the points of detail made by Ms Murphy as they arise in the course of consideration of the relevant statutory provisions. ![]() ![]() ![]() ![]()
12. Ms Murphy relied on dicta of O’Higgins C.J. in In the Matter of ![]() ![]()
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13. These passages, from a judgment with which all members of this Court agreed, restate the well-established proposition that the powers and procedures of the Special Criminal Court must be interpreted strictly. That court exercises a special and exceptional jurisdiction. Its powers, jurisdiction and procedures must, as ![]() ![]() 14. Then, it is necessary to turn to the Offences against the State Acts themselves. The provision which is central to the Appellant’s case is section 43( ![]() ![]()
15. The Offences against the State Acts provide for various ways of bringing a person before the Special Criminal Court. There is, as will be seen, a distinction between the bringing of the person before the Court and the transmission of proceedings to that Court. For example, section 47( ![]() ![]()
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18. Ms Murphy drew attention also to the procedures contained in section 45 of the Act of 1939 empowering the District Court to send a person for trial to the Special Criminal Court. There are separate provisions in respect of summary offences (where the Director may require the District Court to send a person for trial to the Special Criminal Court) and for indictable offences where the District Court must automatically send a person for trial before that court in respect of a scheduled offence, unless the Director otherwise directs. 19. For present purposes, it suffices to demonstrate that the Offences against the State Acts contain powers of arrest which may be used and which might have been used in this case. The first point made on behalf of the Appellant is that no power of arrest can be used to bring a person before the Special Criminal Court other than those found in the Offences against the State Acts. This proposition is based on the general principle that the powers must be strictly construed and not on any particular exclusion contained in the Offences against the State Acts of the use of other powers. 20. I return to consider section 43( ![]() ![]()
21. This conclusion is sufficient to dispose of Ms Murphy’s first argument. The Appellant was arrested under section 4 of the Criminal Law Act, 1997. That section confers a general power of arrest without warrant. Since the present case concerns an arrest by a member of the Garda Síochána, it is sufficient to cite section 4(3), which reads:
22. It is not disputed that the offence with which the Appellant was charged is an “arrestable offence”. The offence must be punishable by a term of imprisonment of five years or more. 23. Ms Murphy placed some reliance on sub-section 6:
24. However, it is not possible to discern any restriction, which would presumably have to be contained in the Offences against the State Acts, which could be affected by this provision. 25. The remaining part of the argument turns on section 47( ![]() ![]() 26. Ms Murphy relied on two further provisions. 27. Firstly, section 15(2) of the Criminal Justice Act, 1951 (as amended by substitution by section 18 of the Criminal Justice (Miscellaneous Provisions) Act, 1997) provides:
28. In view of the Director’s direction pursuant to section 47( ![]() ![]() ![]() ![]() 29. I accept that section 15(2) applies in the case of the Appellant. He was arrested without warrant pursuant to the power conferred by section 4. The principal focus of the submission is that the power of arrest was used to detain the Appellant for a further period of some 15 hours and that the section does not authorise detention. I do not accept this submission. The obligation was to bring the arrested person before a court, in casu the Special Criminal Court “as soon as practicable.” The section necessarily implies a right to detain the person in custody for so long as necessary to achieve that single purpose. There is no question of detention for the purpose of further investigation. The Appellant was arrested late on the evening of Holy Thursday. It was arranged that the Special Criminal Court would sit at noon on Good Friday. I find it impossible not to regard that as being “as soon as practicable.” Thus, I would reject this argument. 30. Finally, the Appellant places particular reliance on the provisions of Section 30A of the Act of 1939 as inserted by section ![]() ![]()
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(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 an officer of the Garda Síochána not below the rank of superintendent that 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. ![]() ![]()
(3): ![]() ![]()
(b) the addition of the following at the end of subsection (4C): 'or, in case the detention follows an arrest under a warrant issued pursuant to section 30A of this Act, by subsection (3) of this section as substituted by the said section 30A.'. ![]() ![]() 31. The general purpose of this provision is clear. It is to prevent abuse by An Garda Síochána by repetitive detention under section 30 in pursuit of the same investigation. It subjects any further section 30 type detention to the need for a warrant from the District Court based on new information coming to the knowledge of the gardaí since his last release. It is sub-section 3 which is relevant to the present case. The Appellant could be re-arrested only “for the purpose of charging him with that offence forthwith.” The Respondent has submitted that section 30(A)(3) has no application to an arrest pursuant to section 4 of the Criminal Law Act, 1997. However the prohibition on arrest in section 30(A) ( ![]() ![]()
32. Ms Murphy concentrated on the period of detention as being unlawful and submitted that the charging before the Special Criminal Court was not “forthwith.” That expression must be equated with “immediate” or “at once.” There must be no delay. Mr Collins submitted that the Appellant was charged “forthwith” before the Special Criminal Court at 12 noon on Good Friday. 33. The Appellant’s written submissions refer to Section 187(b)(ii) of the Criminal Justice Act, 2006 which amends section 30A(3) as follows:
34. While, of course, an enactment of 1998 must be interpreted as it read at that time, it is interesting to note the clear distinction drawn between the two expressions. It confirms, to my mind that “forthwith” imposes a more stringent requirement than “as soon as practicable.” 35. I agree with Ms Murphy on the meaning of the term “forthwith.” That word may, as the 2006 amendment demonstrates, be contrasted with the expression, “as soon as practicable,” which is also employed in section 15(2) of the Criminal Justice Act, 1951, as amended. The latter expression allows some latitude to cater for practical problems such as travel or contacting judges and assembling courts. Mr Collins drew attention to the possible problems where a person is arrested in some remote part of the country and cannot immediately be brought before a court. It might take at least a day to do so. The answer is, I think, that a person does not have to be brought before a court to be charged. Charges can be preferred in the garda station or elsewhere. It has been accepted throughout the present proceedings that the Appellant had not been charged by the gardaí. It was not suggested that the language used by Detective Garda Corcoran were intended to constitute a charge. Thus, he was not charged until ![]() 36. Consequently, because the Appellant was not charged “forthwith” upon his arrest, his further detention thereafter was unlawful. That is because the arrest had to be “for the purpose” of charging him. As a result, he was not lawfully brought before the Special Criminal Court. I would, therefore, allow the appeal and substitute an order granting certiorari of the decision of the Special Criminal Court dated 14th December 2004 and a declaration, if that is considered necessary, that the Special Criminal Court did not, at that date, have jurisdiction to try the Appellant on the charge proffered against him. |