Special Criminal Court lacks jurisdiction when a suspect is not charged forthwith after arrest under Offences Against the State Act.

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

RESPONDENTS

Judgment delivered the 24th day of October, 2007 by Denham J.

1. Barry O'Brien, the applicant/appellant, hereinafter referred to as 'the applicant', has appealed to this Court from the order and

judgment of the High Court (MacMenamin J.) given on the 28th day of July, 2005, whereby the applicant's application for judicial

review was declined, and where it was held that the Special Criminal Court had jurisdiction, that the applicant was lawfully before it,

and that his trial should proceed.

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:-

(i) Because the arrest power used to make him amenable to the Court, s.4 of the Criminal Law Act, 1997, has no place in

the special statutory code which governs the jurisdiction and procedures of 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)(1) of the Offences Against the State

Act, 1939 to 1998.

4. Leave to apply for Judicial Review

On the 17th January, 2005 the applicant was given leave to apply for judicial review for the following reliefs:-

(a) Certiorari, quashing the decision of the Special Criminal Court, made on the 14th December, 2004, that the applicant

is not unlawfully before the Special Criminal Court on the charge of membership of an unlawful organisation on the 6th day

of April, 2004 under section 21 of the Offences Against the State Act, 1939 to 1998.

(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.

The grounds for the application were:-

"The Special Criminal Court has no jurisdiction to try the Applicant on the aforesaid charge of membership of an unlawful

organisation under section 21 of the Offences Against the State Act 1939, because the Applicant is not lawfully before

the Special Criminal Court for trial under the Offences Against the State Act 1939/1998, and the decision of the Special

Criminal Court made on the 14th day of December, 2004, to the contrary, was ultra vires 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:

"In the light of the foregoing, and having regard to the specific circumstances of this case, the Court will hold that the

direction of the Director of Public Prosecutions was sufficient to invoke the jurisdiction of the Special Criminal Court and to

preclude the jurisdiction of the District Court. Again having regard to the time sequence, the totality of circumstances,

the absence of any evidence of mala fides or prejudice and the convening of the Special Criminal Court at 12 midday on

the following Friday this Court will hold that on the facts the applicant has been brought before the Special Criminal Court

within a time frame which may be interpreted as immediately and certainly as soon as was practicable.

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:

"43.- (1) A Special Criminal Court shall have jurisdiction to try and to convict or acquit any person lawfully brought before

that Court for trial under this Act, …:-

[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:

47.- (1) Whenever it is intended to charge a person with a scheduled offence, the Director of Public Prosecutions may, if

he so thinks proper, direct that such person shall, in lieu of being, charged with such offence before a justice of the

District Court, be brought before a Special Criminal Court and there charged with such offence and, upon such direction

being so given, such person shall be brought before a Special Criminal Court and shall be charged before that Court with

such offence and shall be tried by such Court on such charge.

(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:-

"Where a member of the Garda Síochána, with reasonable cause, suspects that an arrestable offence has been

committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty

of the offence."

The issue of rearrest is addressed in the Offences Against the State Act, 1939 s.30A, which was inserted by s.11 of the Offences

Against the State (Amended) Act, 1998. This section provides:-

"The following section is hereby inserted after section 30 of the Act of 1939:

"30A. (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 for the same offence, 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 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.

(2) Section 30 of this Act, and, in particular, any powers conferred thereby, shall apply to or in respect of a person

arrested in connection with an offence to which that section relates under a warrant issued pursuant to subsection

(1) of this section as it applies to or in respect of a person to whom that section applies, with the following and any

other necessary modifications:

(a) the substitution of the following subsection for subsection (3):

'(3) Whenever a person is arrested under a warrant issued pursuant to section 30A(1) of this Act, he may be

removed to and detained in custody in a Garda Síochána station, a prison or some other convenient place for a

period of 24 hours from the time of his arrest.',

(b) the deletion of subsections (4), (4A) and (4B), and

(c) 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.'.

(4) Notwithstanding subsection (1) of this section, a person to whom that subsection relates may be arrested for

any offence for the purpose of charging him with that offence forthwith."

[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(1) are clear. Provision is made for the jurisdiction of the Special Criminal Court in the words "A

Special Criminal Court shall have jurisdiction to try and to convict or acquit …". That jurisdiction may be exercised over "any person

lawfully brought before that Court for trial under this Act, …". In construing the words, the issue is whether the words "under this Act"

govern the words "lawfully brought". I am satisfied that they do not. Taking a strict construction of the sentence the words 'under

this Act' refer only to the words 'for trial'. Thus the meaning of the sentence is that jurisdiction may be exercised over any person

lawfully brought before the Special Criminal Court for trial. There are no express words stating that the person has to be brought

before the Court pursuant to the provisions of the Offences Against the State Acts. While the legislation should be strictly construed,

this does not mean it is necessary to seek out a meaning, or indeed to legislate for a meaning, which is not there. The Act refers

simply to 'any person lawfully brought'. There are no qualifying words to that phrase. The sentence concludes with the words 'for trial

under this Act', and thus clearly provides for a trial pursuant to the Act, which is a specific type of trial. No words such as 'under this

Act' qualify the words 'lawfully brought'. I am satisfied that the clear meaning of the section, on first principles, is that the term

'lawfully brought' has a general meaning and is not limited to procedures under the Offences Against the State Act 1939 to 1998.

Thus a person may be lawfully brought before the Special Criminal Court in accordance with general law, and not necessarily the

specific law of the Offences Against the State Act, 1939, as amended.

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] IE CCA 58 (12th

May, 2006). The judgment of the Court was delivered by Hardiman J. That court held:-

"In the opinion of the Court, no reason has been advanced as to why a person lawfully arrested under s.4 of the 1997 Act

may not, pursuant to s.47 of the 1939 Act, be brought before the Special Criminal Court once the direction of the Director

of Public Prosecutions has been given. Equally, no reason has been advanced for the proposition that the phrase "lawfully

brought" should be interpreted as though it read "lawfully brought in the exercise of any power conferred in the Offences

Against the State Acts, 1939 to 1998, and not otherwise…". There is simply no warrant for circumscribing the meaning of

the phrase "lawfully brought" in the manner proposed by the applicants."

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:

"Section 43 of the Offences Against the State Act, 1939, gives to the Special Criminal Court jurisdiction to try and to

convict or acquit any person lawfully brought before that Court but there is nothing in the terms of that section or in the

other provisions contained in the Act of 1939 which could be interpreted as confining the method of lawfully bringing

before the Special Criminal Court a person to be tried by it to an arrest under Section 30 or pursuant to a warrant of the

Court, as is submitted."

11. I am satisfied that the term 'lawfully brought' in s.43 of the Offences Against the State Act, 1939, has a general meaning, and is

not qualified so as to mean that a person is required to be lawfully brought pursuant to the Offences Against the State Acts, 1939 to

1998. That conclusion determines the first issue in this appeal.

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(1) gives to

the Director of Public Prosecutions this specific power, an express power, to direct that a person be charged before the Special

Criminal Court. When it is intended to charge a person with a scheduled offence, the Director may, if he so thinks proper, direct that

the person shall, "in lieu" of being charged with such offence before the District Court be brought before the Special Criminal Court

and "there" charged with the offence. On such direction being given by the Director, a person shall be brought before the Special

Criminal Court and there charged with such offence, and then tried by the Special Criminal Court on that charge. I am satisfied that

the direction of the Director of Public Prosecutions was sufficient to invoke the jurisdiction of the Special Criminal Court. On this issue

I would affirm the decision of the High Court.

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:

"A person arrested without warrant shall, on being charged with an offence, be brought, as soon as practicable, before a

judge of the District Court having jurisdiction to deal with the offence concerned."

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] IE CCA 58 (Court of Appeal, 12th May,

2006), where that Court held, at p.9:-

"By virtue of s.47, however, the applicants in this case were brought before the Special Criminal Court “in lieu” of being

brought before the District Court. But that is the only alteration affected by s.47, which appears to me to leave all other

rights and obligations that follow upon an arrest intact. The right of the arrested person, and the obligation of the Gardaí,

is that he be brought before the relevant Court “as soon as practicable”. It is clearly not practicable to bring a person

before a court until that Court is sitting and the Special Criminal Court was not sitting in the small hours of the 11/12th

October, 2002."

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.11 of the Offences Against the State (Amendment) Act,

1998, and is set out in detail previously in this judgment. Section 30A(1) commences with a general prohibition of re-arrest. Thus,

"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 - be re-arrested for the same offence …" S.30A(1) then provides for

an exception in the form of a warrant issued by a judge - which does not apply to this case. This exception in s.30A is clearly a

protection against further detention, except as specifically provided for in s.30A. The intention manifest in s.30A is that a person on a

re-arrest in the circumstances of s.30A may not be detained as if it were a first arrest under s.30.

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(1). It

enables the arrest of such a person for the purpose of charging him 'forthwith'. It thus continues the policy of protecting such a

person against detention as if it were an initial s.30 arrest.

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:

"Again having regard to the time sequence, the totality of circumstances, the absence of any evidence of mala fides or

prejudice and the convening of the Special Criminal Court at 12 midday on the following Friday this Court will hold that on

the facts the applicant has been brought before the Special Criminal Court within a time frame which may be interpreted

as immediately and certainly as soon as practicable."

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.11 of the Offences Against the State Act, 1998, apply. For, while the general law may be exercised to bring a person before the

Special Criminal Court, when safeguards are established by the specific law of the Offences Against the State Acts, they must be

met.

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.