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Cite as: [2008] IESC 12, [2008] 3 IR 364

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Judgment Title: Brennan & Ors. - v - The Governor of Portlaoise Prison & Anor.

Neutral Citation: IESC No. 12

Supreme Court Record Number: 314/07 , 315/07 , 316/07 , 317/07 , 322/07

High Court Record Number: 2007 1588SS , 2007 1587SS , 2007 1584SS , 2007 1586SS , 2007 1585SS

Date of Delivery: 12 March 2008

Court: Supreme Court

Composition of Court: Geoghegan J., Fennelly J., Kearns J.

Judgment by: Geoghegan J.

Status of Judgment: Approved

Judgments by
Geoghegan J.
Other (see notes)

Notes on Memo: Reasons given for decision of 05/12/07 dismissing appeal


Appeal Nos. 314/315/316/317 & 322/2007

Geoghegan J.
Fennelly J.
Kearns J.





Respective Applicants/Appellants




Notice Party

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

Giving reasons for his concurrence with the judgment of the court pronounced ex tempore on the 5th day of December 2007
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] IESC 45 (unreported concurring judgments of Denham J. and Fennelly J. with which Murray C.J. agreed).

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.

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.

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 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.

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.

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

      “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.”
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.

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.

What then happened was that Mr. O’Brien of the O’Brien case who as far 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 application for such leave from the trial court. Their jurisdictional objections were included in the grounds of appeal to the Court of Criminal Appeal but leave to appeal was refused in a judgment of the court delivered by Hardiman J. sitting with Gilligan J. and Dunne J. on the 12th May 2006. Before I comment on any of the contents of that judgment I think it appropriate to refer to paragraph 17 of each of the affidavits sworn on behalf of the respective appellants. That paragraph reads as follows:

      “In the course of the hearing of the appeal, counsel for the Director of Public Prosecutions was asked by the court whether he was maintaining his preliminary objection that the issue of jurisdiction not having been raised at the first opportunity, was spent. The court having expressed the view that an objection to jurisdiction cannot be spent no matter how often an accused person appears before a court, counsel for the Director abandoned that argument.”
If that comment was made by the court, I am afraid that I would respectfully disagree with it but on the other hand, I would equally disagree with at least the interpretation that seems to have been put on the dicta of McCarthy J. cited above. There are some important comments on all of this by McCracken J. in the Gilligan case and as I have already indicated, I will be dealing with this subject later.

It is not necessary to comment in any detail on the contents of the judgment of the Court of Criminal Appeal except to point out that the argument based on the word “forthwith” as explained above was expressly dealt with, though a different view was taken by the court than was ultimately taken by this court in the O’Brien case. The Court of Criminal Appeal appears to have equated “forthwith” with the expression “as soon as practicable” in the statutory procedures under the Criminal Justice Act, 1984. The important point however is that this precise argument was quite obviously made and determined by the Court of Criminal Appeal. Section 29 of the Courts of Justice Act, 1924 provides as follows:

      “The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive.”
No application was made to the Court of Criminal Appeal for a certificate under section 29. Accordingly, the decision of the Court of Criminal Appeal was and is final and that finality is prescribed by statute. Since the jurisdictional issue was included in the grounds of appeal and the particular point on which Mr. O’Brien was successful in his case was considered and determined by the Court of Criminal Appeal, the finality of the decision clearly covers that issue. Indeed normally where the route of appeal rather than judicial review is pursued, the finality of the decision of the Court of Criminal Appeal will cover any potential ground of appeal including a jurisdictional point which could reasonably have been included in the appeal even if it was not. Interestingly, that seems to be the strong view of Mr. Kevin Costello as expressed in his excellent and helpful book “The Law of Habeas Corpus in Ireland”. In his treatment of the use of Article 40.4.2 as a means of post-conviction review at p. 210 he says the following:
      “It is implicit in the appellate scheme created by the Courts of Justice Act, 1924 that the legislative intention was that there be merely a single appeal to the Court of Criminal Appeal: instead of constituting a free-standing renewable right of appeal available throughout the entire post-conviction period an application for leave to appeal must be based on an application submitted to the trial judge. It is unlikely that the legislature, if it intended there to be a continuous, free-standing right of appeal, would have restricted the facility of appeal to an application made to the trial judge (who might then be dead, or have retired). If following a criminal appeal a convicted person could simply proceed again by Article 40.4.2 this legislative intention, that there not be a perpetual right of post-conviction appeal, would be avoided. Further, under section 29 of the Courts of Justice Act, 1924, the determination of the Court of Criminal Appeal is expressly declared to be final. A conviction may only be impeached on new grounds in the circumstances described in section 2 of the Criminal Procedure Act, 1993. The principle of finality under section 29 would be subverted if a complaint could, notwithstanding a prior determination by the Court of Criminal Appeal, be submitted under Article 40.4.2.”
I believe that that statement of the law is correct subject to the proviso that there may be very exceptional cases where some fundamental jurisdictional defect is established in an Article 40 application which through nobody’s fault had not been raised or considered in the appeal processes. I make that proviso partly in the context that the learned author criticises in no uncertain terms eight cited cases in which he claims the principle was breached by the High Court and/or the Supreme Court. I do not propose to analyse those cases except to say that, on my perusal of them, they for the most part appear to be distinguishable from this case. There are two of them however which have relevance namely, Hardy v. Ireland [1994] 2 IR 550 and Breathnach v. DPP [2001] IESC 23 (not quite correctly cited in the book as Breathnach v. Manager of Wheatfield Place of Detention though the manager was the second defendant).

In the Hardy case, an application under Article 40, s. 4, sub-s. 2 of the Constitution was brought in somewhat similar circumstances to this case. There had been a conviction and the appeal process via the Court of Criminal Appeal had been completed. There had been no application for a Section 29 certificate. Hederman J. sitting with O’Flaherty J., Egan J., Blayney J. and Murphy J. delivered the leading judgment and it is sufficient for the purposes of my own judgment in this case simply to cite the three opening paragraphs of that judgment.

      “This is an appeal brought by the applicant from the order and judgment of the High Court (Flood J.) of the 10th September, 1992 refusing to order his release pursuant to an application under Article 40, s. 4, sub-s. 2 of the Constitution.

      The applicant was convicted by a Special Criminal Court on the 22nd February, 1990, on two counts of possession of explosive substances contrary to s. 4, sub-s. 1 of the Explosive Substances Act, 1883. He was sentenced to five years penal servitude.

      Thereafter, he applied to the Court of Criminal Appeal for leave to appeal against his conviction which application was refused (see The People (Director of Public Prosecutions) v. Hardy (unreported, Court of Criminal Appeal, 22nd June 1992, ex tempore). Many grounds were argued before that court – some of which were traversed again in the High Court and which it was sought to have re-litigated before this court. However, at the outset of the appeal the court made clear that only one ground would be allowed to be argued, having regard to the finality of the judgment of the Court of Criminal Appeal, since a certificate to appeal therefrom was neither sought nor given: section 29 of the Courts of Justice Act, 1924.”

The sole ground allowed to be pursued in the Supreme Court was an allegation that section 4(1) of the Explosive Substances Act, 1883 was inconsistent with the Constitution and had not been carried over in accordance with Article 50.

As that issue clearly could not have been determined by the Court of Criminal Appeal, it is wholly distinguishable from this case and I would respectfully disagree with Mr. Costello that it somehow breaches the principle in favour of which he forcefully argues and with which I agree.

The second of the cases the treatment of which he criticises on which I want specifically to comment is the Breathnach case cited above. When sourcing that case, I discovered that I, myself had delivered the judgment of the court which was concurred in by Murray J. (as he then was) and Hardiman J. At this remove, I do not remember what was said in court but from reading my reserved judgment delivered the 22nd February, 2001 (unreported) it would appear that it was an appeal from an order of the High Court (Carney J.) refusing an inquiry under Article 40 in what is generally known as “a prisoner application” i.e. an application transmitted via papers only from the prison to the High Court. The applicant had prepared his own papers for the High Court and indeed his own notice of appeal. It would appear from my judgment that Carney J. refused the application primarily on the perfectly legitimate basis that the grounds were almost impossible to follow and that he could not discern any particular justiciable grounds. It would appear that the applicant had counsel on his appeal to the Supreme Court and the court discerned certain technical jurisdictional grounds for the application. Because of the obvious problems which a lay litigant encounters, this court at least entertained the grounds it had discerned but ultimately, dismissed the appeal. There had been an appeal to the Court of Criminal Appeal because one of the grounds related to the procedure for obtaining a Section 29 Certificate but there is nothing in the judgment to indicate whether there was any element of duplication between the points entertained by this court and the points raised in the Court of Criminal Appeal. Given that the appeal before this court was from an order made in an ex parte application, I rather suspect that the issue did not rear its head at all. Even if the appellant had been successful, the court was merely dealing with the issue of whether a conditional order should be made or not. The matter would have had to be returned to the High Court for that court to conduct an inquiry if the appeal had been allowed and at that point the State authorities would have been in a position to raise any issue of res judicata arising from the appeal process. I am satisfied that in no sense could this case be regarded as an authority against the sound principles put forward by Mr. Costello referred to above.

It follows therefore that I am of the view that the Article 40 application does not lie in this case, as the jurisdictional issues have already been determined to the point of statutory finality.

In case there be any doubt, I should make it clear that nothing which I have said is intended in any way to question the well-established jurisprudence clearly expressed in The State (MacDonagh) v. Frawley [1978] IR 131 that in certain exceptional circumstances but only in exceptional circumstances will an Article 40 application lie in relation to post-conviction detention. Disgraceful prison conditions is the oft cited example of a situation where habeas corpus does lie.

It is clear from the views which I have expressed that I am of the opinion that the appeal should be dismissed on the procedural grounds indicated. Strictly speaking, it is unnecessary therefore for me to express any views on the substantive arguments which would have to be considered if such an application was permissible. But since those grounds have been fully argued before the court and since I am quite satisfied having heard and considered these arguments that the appeal would still have had to be dismissed even if it could be entertained, I should briefly express my views on those issues in the interest of finality. The learned High Court judge, O’Neill J., in his judgment raised the spectre of a belated application for a Section 29 certificate to the Court of Criminal Appeal. He pointed out obvious difficulties in obtaining such a certificate with which I must agree. Given the possibility at least that all of this litigation could become further and quite unnecessarily protracted and given that all the arguments have now been before this court, I would briefly comment as follows. These cases are wholly distinguishable from the O’Brien case for all the following reasons.

      1. No objection was raised in the Special Criminal Court within a reasonable time a matter on which I am about to expand.

      Two years elapsed before an objection was raised.

      2. The applicants applied for and were refused bail. Various remand orders were then made including an eight week remand order with the consent of the appellants and the appellants were eventually before the court for trial on foot of such a remand order.

      3. Unlike O’Brien, the appellants never moved for judicial review. They never applied for an adjournment of the trial pending an application for judicial review or suggested they were bringing an application for judicial review nor did they in fact bring such an application.

      4. They permitted their trial to proceed and then sought leave to appeal to the Court of Criminal Appeal on grounds which included the relevant jurisdictional point.

      5. Having had the jurisdictional issue determined by the Court of Criminal Appeal, the appellants never applied for a Section 29 Certificate and, therefore, the decision of the Court of Criminal Appeal became final and became a matter of res judicata.

In all these respects the O’Brien case was quite different. As already explained, he was not arrested until 2004 and if he had not objected and brought the judicial review proceedings, his trial would have been joined with the trial of the applicants.

Each of those grounds of distinction are self-explanatory but the first one requires some expansion. In DPP v. Kehoe cited above, if the dicta of McCarthy J. were to be interpreted literally it can be suggested that his view was that any objection to jurisdiction had to be taken on the very first day that the accused came before the court. There can be all sorts of circumstances where this could not reasonably be expected and I do not think that McCarthy J. ever intended the literal interpretation which has been given to his words. An unrepresented accused, for instance, could not be expected to raise jurisdictional objections until he had legal advice. This view coincides with the view of the Court of Criminal Appeal as expressed in the judgment of that court delivered by McCracken J. in DPP v. Gilligan on the 8th August, 2003. There is no doubt that under long established jurisprudence of the courts a jurisdictional objection must be taken as soon as is reasonably possible. Some judges have spoken of the parties effectively conferring a jurisdiction. I would prefer a slightly different formulation. Jurisdiction is conferred by law rather than by persons and, therefore, I think that it is somewhat more accurate to say that by law a bona fide exercise of jurisdiction is deemed to be a good exercise if objection is not taken at the appropriate time. That would, of course, be very much in line with the judgments in A v. The Governor of Arbour Hill Prison [2006] 4 IR 88 though that case covered a somewhat different factual situation and the principle applicable here long predated it.

For all these reasons, I am firmly of the view that even if the appeal was entertainable it would have to be dismissed.

These are my reasons for concurring in the judgment to that effect of the court already delivered.

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