A Louth student has secured leave from the High Court to challenge a decision of the non-jury Special Criminal Court that he was lawfully brought before it last month on a charge alleging membership of an unlawful organisation.
Ms Justice Macken yesterday granted leave to Mr Barry O'Brien, Mountain Court, Dundalk, to bring judicial review proceedings against the Special Criminal Court and the Director of Public Prosecutions aimed at quashing a finding by the court of December 14th last that he was lawfully before it on a charge of membership of an unlawful organisation on April 6th 2004.
Mr O'Brien was arrested about 8.45 p.m. on April 6th, 2004, at his home under section 30 of the Offences Against the State Act 1939, as amended in 1998, on suspicion of membership of the IRA.
Ms Deirdre Murphy SC, with Ms Ivana Bacik, for Mr O'Brien said he was brought to Balbriggan Garda station and detained there at 10.30 p.m. At 8.20 p.m. on April 7th, his detention was extended by 24 hours to commence at the expiry of the first period of detention. At 5.25 p.m. on April 8th, he was informed by a Garda superintendent that the DPP had directed he be charged with membership of an unlawful organisation.
However, he was at that time neither charged with that offence nor released. Instead, he was released three hours later, immediately rearrested under section 4 of the Criminal Law Act 1997, at Tankardstown, Balbriggan, for the offence of membership of an unlawful organisation and returned to Balbriggan Garda station where he was detained.
Ms Murphy said no legal basis for that detention was noted in the custody record. He was told at 8.51 p.m. by a detective sergeant that he would be brought before the next sitting of the Special Criminal Court and charged there. The next day, Good Friday, he was brought before the court and charged in the confines of the courthouse.
Before he was charged, she said, her client was held for 18½ hours from time of notification at 5.25 p.m. on April 8th, 2004, that the DPP had directed that he be charged. On the basis of that chronology, Mr O'Brien was not lawfully before the Special Criminal Court and it had no jurisdiction to try him on the alleged offence.
The mechanism used to bring Mr O'Brien before the Special Criminal Court was one which not only had no place in the statutory scheme governing the jurisdiction and procedures of that court, it was a mechanism which was specifically prohibited in that scheme, Ms Murphy said.
Section 30.a.1 of the Offences Against the State Act 1939/98 provided that Mr O'Brien, having been arrested on suspicion of having committed an offence, detained and then released, could not be rearrested again for the same offence unless he was to be charged forthwith with that offence. That had not happened.
She said the 1939 Act had been amended in 1998, a reaction to the Omagh bombing, in a way that "made an already draconian scheme even more draconian". It created a position whereby a person could be convicted of membership of an unlawful organisation without any external evidence against them.
A small safeguard was contained in section 30.a.1 which provided that a person already arrested, detained and released on an offence could not be rearrested for the same offence unless they were to be charged forthwith.
