Special Criminal Court lacks jurisdiction when accused is not charged forthwith after arrest under Offences against the State Act.

THE SUPREME COURT

[SC No. 349/2005]

Murray C.J.

Denham J.

Fennelly J.

BETWEEN

BARRY O'BRIEN

APPELLANT

AND

THE SPECIAL CRIMINAL COURT AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT delivered on the 24th day of October, 2007 by FENNELLY J.

1. The Appellant has brought Judicial Review proceedings to contest the jurisdiction of the Special Criminal Court to try him on a

charge of membership of the IRA. He was unsuccessful before McMenamin J in the High Court.

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.

11. Article 38, section 3 of the Constitution permits the establishment of Special Criminal Courts in circumstances where it has been

determined that “the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public

peace and order.” Sub-section 2 of that section provides:

“The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.”

12. Ms Murphy relied on dicta of O’Higgins C.J. in In the Matter of Article 26 of the Constitution and the Emergency Powers Bill 1976

[1977] 159 and of Denham J in Gilligan v Special Criminal Court [2006] 2 I.R. 389. In particular, she relied on the following passages

from the judgment of Denham J, at page 409 of the report, in the latter case:

“The [Offences against the State] Act provides expressly that the Special Criminal Court has jurisdiction to try and to

convict a person lawfully brought before the court for trial. It also provides expressly for an ancillary jurisdiction, such as

to enable recognisances be entered into, to admit to bail, to administer oaths, to punish for contempt, and to estreat

recognisances and bail bonds. The fact that these ancillary matters are expressly stated infers that they should be

expressly prescribed by statute. This is consistent with the words of Article 38.3.2°.”

and, at page 413:

“The Special Criminal Court is a unique court established under the Constitution and legislation (especially the Offences

Against the State Act, 1939) which procedure limits some rights of an accused, especially his right to trial by jury.

Consequently, legislation should be strictly construed insofar as it extends the jurisdiction of the Special Criminal Court.

The Constitution provides that the constitution, powers, jurisdiction and procedure of the Special Criminal Court shall be

prescribed by law.”

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 Article 38 of the Constitution provides, be laid down by law. These

propositions were not disputed on behalf of the Respondents.

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(1) of the Act of 1939, which provides:

"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,……”(emphasis added)

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(1) conferred power, the power exercised by the Director in this case, on the Attorney General (now the Director)

to have a person charged before the Special Criminal Court. It provides:

"47.—(1) Whenever it is intended to charge a person with a scheduled offence, the Attorney-General 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."

16. It is to be noted, however, that this provision confers no power of arrest or detention. Section 47(1) was necessary in order to

bring the Appellant before the Special Criminal Court, but it was not sufficient. Thus, one finds that the Special Criminal Court itself

may issue an arrest warrant to enable effect to be given to sub-section 1. Section 47(3) says:

“(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.”

17. Ms Murphy quite correctly says that a person may also be brought before the Special Criminal Court by virtue of arrest or

detention pursuant to other procedures. For example, a person might be in lawful detention pursuant to section 30, as the Appellant

was until 8.35 pm on 8th April (and could have been until 10:30 pm on that day). Section 30(4C) of the Act of 1939 (inserted by

section 10 of the Offences against the State (Amendment) Act, 1998 in replacement of sub-section 4 of the Act of 1939) provides

that a person detained under that section may “at any time during such detention, be charged before the District Court or a Special

Criminal Court with an offence……” The Appellant could have been brought before the court during the period of his detention, if it had

been in session.

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(1). The underlined words, lawfully brought before that Court for trial under this Act, led to a

discussion of whether the phrase should be read disjunctively or conjunctively. Ms Murphy submitted that the term, “under this Act”

qualifies the entire preceding phrase. Thus, the Special Criminal Court has jurisdiction only if the person is brought before it pursuant

to one of the procedures laid down in that Act itself (the discussion is not, of course, limited to the Act of 1939, as later Acts are to

be read with it). Mr Anthony Collins, Senior Counsel, argued for the Respondents that the phrase should not be read in that way. A

person must, of course, be “lawfully” brought before the Court, but there is nothing in the phrase to limit the lawful procedures to

those provided in the Offences against the State Acts. I agree with Mr Collins. The sub-section is dealing with “trial under this Act.”

It is not necessary or natural to read the last three words as qualifying also the procedures for bringing a person before the Court. It

suffices that the procedures be means of lawfully so doing. Indeed, if this were not so, the word, “lawfully” would be otiose. I would

approve, therefore, the following passage from the judgment of the Court of Criminal Appeal, delivered by Hardiman J, dated 12th May

2006 in DPP v Birney and others:

“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.”

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:

“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.”

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:

“This section shall not affect the operation of any enactment restricting the institution of proceedings for an offence or prejudice any

power of arrest conferred by law apart from this section.”

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(1) of the Act of 1939, which I have cited above. That section deals with

the effect of a direction given by the Director of the type which was undoubtedly given in this case. The Director directed, in the

words of the provision “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……

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:

“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.”

28. In view of the Director’s direction pursuant to section 47(1) of the Act of 1939, this provision must be read as substituting a

requirement to bring the Appellant before the Special Criminal Court. The Appellant’s submission was that a person arrested under

section 4 of the Criminal Law Act, 1997 must be charged with an offence once arrested (unless released), and that if charged he shall

be brought before the Court ‘as soon as practicable’. Section 4 thus cannot be used to give effect to a direction issued by the DPP

under section 47(1) that an accused person be brought before the Special Criminal Court for the purpose of being charged.

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 11 of

the Offences against the State (Amendment) Act, 1998. That section reads:

"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.',

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

(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.'.

(3) 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."

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) (1) applies to any re-arrest for the same offence and does not exempt section 4 of

the Act of 1997 from its application. The only exception capable of application to this case, to the general prohibition on rearrest for

the same offence, is the arrest permitted by subsection (3) of section 30(A). In its own terms, it is equally applicable to an arrest

pursuant to the act of 1997. The sole question is whether the Appellant was in fact charged “forthwith.” The evidence of Detective

Superintendent O’Sullivan, on affidavit, confirmed by Detective Sergeant Corcoran, was that at the time of his re-arrest:

“The Applicant was cautioned and was remanded by D/Sgt Corcoran that the D.P.P. had directed that he be charged with

the offence of membership of an unlawful organisation, styling itself the I.R.A., otherwise known as Oglaigh na hEireann,

otherwise the Irish Republican Army……and that he [was to be] brought before the Special Criminal Court which was at 12

noon the following day.”

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:

‘in subsection (3), by the substitution of “for the purpose of charging him or her with that offence forthwith or bringing

him or her before a Special Criminal Court as soon as practicable so that he or she may be charged with an offence before

that Court” for “for the purpose of charging him with that offence forthwith.”’ (emphasis added).

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 11:50 on Good

Friday.

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.