FIVE MEN jailed for membership of the IRA were not legally entitled to challenge the legality of their detention before the Supreme Court because that issue had already been finally determined by the Court of Criminal Appeal, the Supreme Court has ruled.
The three-judge court yesterday gave its reasons for its decision last December, holding that the five were in lawful detention.
The men are Thomas Gilson (26), Bawnlea Avenue, Jobstown, Tallaght, Dublin; Patrick Brennan (43), Lindisfarne Avenue, Clondalkin, Dublin; Seán O'Donnell (34), Castle Drive, Sandymount, Dublin; John Troy (27), Donard Ave; and Stephen Birney (33), Conquerhill Road, Clontarf, Dublin.
They were jailed in February 2005 for four years after the non-jury Special Criminal Court convicted them of membership of an illegal organisation, the IRA, on October 11th, 2002.
The men had been arrested in October 2002 in Bray, Co Wicklow, after an off-duty detective noticed suspicious activity around two cars and a van.
Their trial heard that gardaí recovered a large quantity of Sinn Féin posters, including ones for Sinn Féin TD Aengus Ó Snodaigh, from a car in which they also found a stun gun, a CS gas canister, a blue flashing light and a beacon.
Gardaí also found two pickaxe handles, a lump hammer, three portable radios, cable ties, balaclavas and a fake Garda jacket in the van.
Two of the men, Gilson and O'Donnell, were dressed in fake Garda uniforms, the trial was told.
Last December, the Supreme Court, with Mr Justice Hugh Geoghegan, presiding, and sitting with Mr Justice Nial Fennelly and Mr Justice Nicholas Kearns, dismissed the men's appeal against the High Court's refusal to order their release.
The men had argued they were entitled to the benefit of a Supreme Court decision, in a separate case of Barry O'Brien, of Mountain View Court, Dundalk, Co Louth, that the Special Criminal Court had no jurisdiction to try Mr O'Brien as he had not been brought promptly or "forthwith" before that court after he was charged.
The five men claimed they also were not brought "forthwith" before the Special Criminal Court.
However, the High Court refused to grant an order of unlawful detention on the grounds that they had not raised the jurisdiction issue at the earliest opportunity.
Yesterday, the Supreme Court upheld that High Court decision but rejected the High Court's view that the circumstances of the five were identical to those of Mr O'Brien as he, unlike the five, had taken judicial review proceedings challenging his prosecution.
Mr Justice Geoghegan, giving the court's decision, said he had firmly concluded that the appeal should be dismissed on several grounds, including that the men had not raised the jurisdictional point during a two year period after their arrest on October 13th, 2002.
Nor had they taken proceedings to stop their trial.
It was only after the jurisdictional point was raised in Mr O'Brien's case that the five raised that point, Mr Justice Geoghegan said.
They had done so in their grounds of appeal against their convictions and the Court of Criminal Appeal had rejected their appeal.
The Court of Criminal Appeal decision was final except in exceptional cases and this was not such a case.
Mr Justice Geoghegan added that he was also satisfied that even if the men's challenge could be entertained by the Supreme Court, it would still have to be dismissed on several grounds.
These including the men's failure to object within a reasonable time to the Special Criminal Court's jurisdiction, their failure to initiate judicial review challenges and their failure to ask the Court of Criminal Appeal to refer a point of law in their case for determination by the Supreme Court.
