Court of Criminal Appeal refuses leave to appeal search warrant constitutionality under Offences Against the State Act 1939.

[2006] IECCA 58

THE COURT OF CRIMINAL APPEAL

57/05, 54/05, 55/05, 56/05, 53/05.

Hardiman J

Gilligan J.

Dunne J.

Between:

STEPHEN BIRNEY, PATRICK BRENNAN, THOMAS GILSON, SÉAN O’DONNELL

and JOHN TROY

Applicants

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of the Court delivered by Hardiman J. the 12th day of May, 2006.

1. On the 21st February, 2005, each of the above-named applicants was convicted of the offence of membership of an unlawful

organisation namely the Irish Republican Army, otherwise Oglaigh Na hEireann, otherwise the IRA, on the 11th October, 2002. These

convictions were recorded after a trial which lasted 25 days. Each of the accused appeals his conviction and that is the sole matter

with which the Court is presently concerned. There are certain appeals against sentence which, if necessary, will be dealt with at a

later date.

Factual background.

2. There was a considerable volume of evidence relating to the activities of the accused on the evening of the 10th October, 2002,

and the early hours of the following morning. This related to the whereabouts of the accused, the company each was in, and the

contents of a van and a car with which they could be associated. In certain cases there was other evidence including tattoos on

certain of the accused and the contents of the home of one of them. This evidence was not controverted and is summarised below.

3. A Detective Garda Masterson lives at Corke Abbey, Bray, Co. Wicklow. On the 10th October, 2002, while off duty, he witnessed

certain movements of vehicles and persons in Corke Abbey. The movements appeared to him to be suspicious. The vehicles in

question were a dark blue Nissan Almeira car, a Nissan Micra car and a Ford Transit van. Five persons arrived in the Micra, got out of

it, and some got into the transit van. They got into the rear compartment of the van. The other two spoke to the original occupants

of the transit van and then got back into the Micra and left. Then another person arrived in a taxi and got into the van.

4. Detective Garda Masterson made his suspicions known to the gardaí at Shankhill. As a result of this an unmarked garda vehicle

manned by Garda Twomey and Garda Mannion approached the van. They spoke to the driver who gave a false name: this was the

applicant Patrick Brennan. While conversing with him the gardaí noticed a black balaclava and a handset of a portable radio on the

floor of the van. They summoned assistance. One of the gardaí opened the door into the rear compartment of the van, which was

unlocked. There he found four men sitting on the floor. Around them in the rear compartment of the van were a number of items

which included.

- a lump hammer,

- two pick axe handles,

- a torch,

- eight plastic bags of cable ties,

- one black balaclava with a single opening for the face,

- two black balaclavas with three holes for the face,

- two identical navy blue cloth ties, resembling those worn by gardaí,

- a sky blue shirt marked “Security”,

- a yellow jacket with “Garda” inscribed on the left breast,

- gloves including black woollen gloves and plastic industrial gloves,

- three walkie talkie type radios.

5. Two of the men at the back of the van namely Thomas Gilson and Séan O’Donnell were dressed in clothing similar to that of

members of An Garda Síochána.

6. The five occupants of the transit van were arrested by members of An Garda Síochána under the provisions of s.15 of the Theft

and Fraud Act, 2001.

7. The gardaí also examined the Nissan Almeira car which was at the scene in Corke Abbey. It transpired that the number plates on

this car were false. In it were found the following relevant items:

- a beacon like a garda blue flashing light,

- a canister of CS gas,

- election posters. These were small light paper posters advertising the candidature of Mr. O’Snodaigh, a successful Sinn

Féin candidate in the 2002 General Election,

- a tax disc and an insurance disc matching the false plates on the car.

8. It transpired that two of the accused had the words “Oglaigh Na hEireann” tattooed on their bodies. These were Stephen Birney

who had the words tattooed on his left upper arm and Séan O’Donnell who had it tattooed on his right upper arm where he also had a

tattoo of a cross with Irish flags on both sides. Mr. Gibson had a tattoo of “Ireland” on his right upper arm and Mr. Troy a tattoo of an

armalite rifle on his right upper arm with the name “Rhonda” written through it.

9. Subsequently, the home of Stephen Birney was searched. In it was found a mirror inscribed “Oglaigh Na hEireann” which had six

signatures on the rear purporting to be those of IRA members, a photograph of five men in combat clothing bearing the words “Victory

to the IRA” and a picture of a number of masked men who would seem to be armed at a funeral.

10. Having been arrested, the applicants were all brought to Bray Garda station. After some delay during which the items seized were

examined by the member in charge, they were detained under the provisions of s.4 of the Criminal Justice Act, 1984, which detention

was subsequently extended. After the conclusion of this s.4 detention they were arrested under the provisions of s.30 of the

Offences against the State Act. This detention was also subsequently extended. Each of the accused was questioned in interviews

during which the provisions of s.2 of Offences against the State Amendment Act, 1998, were invoked. Each accused was told that if

he failed to answer material questions, inferences might be drawn from this failure or refusal, but each refused to answer any

questions. Amongst the questions asked, and frequently repeated, was the question “Are you a member of the IRA?”. At the trial,

pursuant to the Offences against the State Act, Chief Superintendent Philip Kelly, the head of the Special Detective Unit, gave

evidence of his belief that each of the accused was a member of the IRA. He said that this belief was not in anyway dependent on

the facts set out above but was independently grounded. His evidence was not challenged.

Issues on appeal.

11. As mentioned above, there is no challenge to the facts proved by the prosecution. Instead, a variety of legal points are taken.

Although almost all of these points are common to all the accused they are differently numbered in the individual notices of appeal. At

the trial, however, counsel for the various applicants made submissions on different points on behalf of his or her own client, and all

the other applicants. Additionally, individual points were taken on behalf of three of the applicants. Two of the points raised in the

notices of appeal were not pursued. These were a submission that the applicants were not properly or correctly informed of the

reason for their arrest, and a submission that the search of the Transit van was unlawful. Other points were only lightly touched on.

12. The points actually urged on the hearing of the appeal were as follows:

(1) The Special Criminal Court did not have jurisdiction to try the applicants. This point was argued on behalf of all the

applicants by Ms. Deirdre Murphy S.C.

(2) The detention of the applicants pursuant to s.4 of the Criminal Justice Act, 1984, was unlawful. This point was argued

on behalf of all the applicants by Ms. Aileen Donnelly S.C.

(3) and (4)

The extension of the applicants’ detention pursuant to s.4 of the Criminal Justice Act, 1984, was unlawful; the arrest,

detention and subsequent extension of the applicants’ detention pursuant to s.30 of the Offences against the State Act,

1939, was unlawful. These points were argued on behalf of all the applicants by Mr. Niall Durnan S.C.

(5) (6) and (7)

The belief evidence of the Chief Superintendent should not have been admitted in evidence; no adverse inferences from

the silence of the applicants in the s.30 interview should be drawn; the trial court failed to give adequate weight to

defective legal advice received by certain of the applicants; the trial court erred in making a finding of mutual agreement

between the applicants as to how to deal with garda questioning. There was no or no adequate corroboration of the

evidence of belief of the Chief Superintendent and in particular neither failure to answer questions nor the activities of the

applicants nor any tattoos on any of the applicants constituted such corroboration.

These points were argued by Mr. Paul Burns S.C. on behalf of all applicants.

Mr. George Bermingham S.C. replied on behalf of the Director.

13. We emphasise that all of these submissions were made on the basis that the evidence of the facts of the case given by the

gardaí was accurate. Undoubtedly, it was conceded, this evidence was such as would cause any rational person to be suspicious that

the applicants were engaged in crime. But, said Mr. Burns on behalf of all the applicants, that was as far as it went. The facts, he

conceded, would give rise to an inference that the applicants were engaged in one or other of a number of forms of criminality but

could not rationally give rise to an inference that they were members of an unlawful organisation. The tattoo marks referring to

Oglaigh na hEireann might, he submitted, be a reference to a part-allegiance, now ended. It will therefore be seen that the

submissions, in one sense at least, addressed a very narrow ground.

14. It is now proposed to examine the submissions individually.

(1) Jurisdiction of the Special Criminal Court.

15. It was submitted by Ms. Deirdre Murphy S.C. that the Special Criminal Court, in the circumstances of the case, lacked the

jurisdiction to try the applicants and each of them. She said that the Special Criminal Court was a creature of statute which had no

general or inherent jurisdiction other than what was conferred by statute. This is undoubtedly so, apart from the general adjectival

jurisdiction that inheres in any court. Equally, it was agreed on the hearing of the appeal that the Special Criminal Court was

established under Part V of the Offences against the State Act, 1939. By s.43 of the Act, the jurisdiction of the Special Criminal Court

is “to try and convict or acquit any person lawfully brought before that Court for trial under this Act”. Ms. Murphy’s submissions were

directed to the words emphasised. These applicants, she said, were not lawfully brought before the Court.

How the applicants were brought before the Court.

16. There is no dispute as to the method actually used (whether validly or not) to bring the applicants before the Special Criminal

Court. This was s.4(3) of the Criminal Law Act, 1997, which provides as follows:

“Where a member of An 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.”

17. Section 2 of the same Act defines an arrestable offence:

“An offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment,

be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any

such offence.”

18. It appears that the power conferred by s.4(3) is merely a modern formulation of the Common Law power of arrest for felony.

Attack on jurisdiction.

19. It was said that s.4 of the 1997 Act, had no place in the “statutory code” governing the jurisdiction and procedures of the

Special Criminal Court. This code consists, said Ms. Murphy, of the Offences against the State Acts, 1939 to 1998. Even if the Court

finds against this submission, said Ms. Murphy, a person who has been arrested under s.4(3) of the 1997 Act cannot be held for the

purpose of bringing him before the Special Criminal Court at a later time. Finally, she said, the means actually used to bring the

applicants before the Special Criminal Court is prohibited under s.30(A)(1) of the Offences against the State Acts, 1939 to 1998.

Chronology.

20. The following chronology appears to be agreed in the case of each applicant.

(1) All were arrested around 1am on the 11th October, 2002, in relation to an offence under s.15 of the Criminal Justice

(Theft and Fraud Offences) Act, 2001.

(2) All were brought to Bray Garda station where after an interval (to be discussed when dealing with another ground),

each was detained pursuant to s.4 of the Criminal Justice Act, 1984, for the investigation of an offence under the Criminal

Justice (Theft and Fraud Offences) Act.

(3) Each detention under the 1984 Act was extended shortly before 7 o’clock on the morning of the 11th October, 2002.

Over the following several hours the gardaí became suspicious that they had interrupted an IRA operation and that the

men who were in detention at that time were members of the IRA.

(4) Towards the very end of the extended period of s.4 detention each applicant was released from such detention and

very shortly afterwards rearrested and detained under s.30 of the Offences against the State Act, 1939 – 1998 in respect

of the offence of membership of an illegal organisation, pursuant to s.21 of that Act. These detentions were all extended

on the 12th October, 2002.

(5) At about 9.40pm on the 12th October, 2002, a direction was received from the DPP. The Director ordered that the

applicants be brought before the Special Criminal Court and charged with the offence of membership of an unlawful

organisation. Shortly after receipt of this direction each applicant was released from the s.30 detention and rearrested

almost immediately afterwards under s.4(3) of the Criminal Law Act, 1997, set out above.

Shortly after being arrested under s.4 on the 1997 Act, each applicant was informed that he was brought before the

Special Criminal Court the next day for the purpose of being charged with a schedule offence, pursuant to the directions

of the DPP.

(6) On the morning of the 13th October, 2002, each applicant was taken from Bray Garda station to the Special Criminal

Court where he was charged with the offence of membership.

“Lawfully brought before that Court”.

21. Ms. Murphy relied, in the first instance, on an extract from Professor’s Walsh’s book Criminal Procedure, at page 981. Speaking of

the Special Criminal Court he said:

“Since the Court is a creature of statute and has no inherent jurisdiction of its own it follows that its jurisdiction can be

invoked in any individual case only where a person has been brought before it in accordance with the requisite statutory

procedures. These are set out in Sections 45 – 48 inclusive of the Offences against the State Act, 1939”.

22. Ms. Murphy went on to concede that the Director of Public Prosecutions is specifically empowered to direct that an accused

person be brought directly before the Special Criminal Court without appearing first in the District Court. She referred to s.47(1) of

the Offences against the State Acts, 1939 to 1998 as follows:

“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 before a judge of the District Court, be brought

before a Special Criminal Court and there charged with such offences 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.”

23. This Section is also relied upon by the prosecution.

24. Ms. Murphy went on, however, to submit that “the statutory code” provided for lawful methods whereby a person may be

“lawfully brought” before the Special Criminal Court and listed them as follows:

(i) Where the accused person has been arrested under section 30 of the OASA 1939/1998, he may be charged before the

expiry of the statutory detention period provided for under that section. Section 30(4C) of the OASA 1939/1998 permits

the gardaí to bring an accused person before the Special Criminal Court during the statutory detention period so that he

may there be charged with the aforesaid offence.

Alternatively he may first be charged with the aforesaid offence in the garda station, and then also within the said

detention period brought before the Court under section 30(4C): State (Walsh) v. Maguire [1979] IR 372.

(ii) Following the expiry of the period of lawful detention under section 30, an accused person may be released and a

warrant for his arrest sought from the Special Criminal Court by the DPP pursuant to section 47(3) of the OASA

1939/1998, so that he may be brought in custody before the Special Criminal Court on the basis of that warrant.

(iii) Thirdly, following the expiry of the period of lawful detention under section 30, the accused person may be released

and a summons sought from the Special Criminal Court by the DPP, under Rule 17(1) of the Rules of the Special Criminal

Court made pursuant to section 41(1) of the OASA 1939/1998, ordering that the accused person shall attend before the

Special Criminal Court.

(iv) The fourth option is that, following the expiry of the period of lawful detention under section 30, the accused person

may be released and re-arrested for the same offence for the purpose of being charged with that offence forthwith,

under section 30A(3) of the OASA 1939/1998.

25. She went on to submit that this was an exhaustive list “of the statutory means whereby an accused person may be lawfully

brought before the Special Criminal Court pursuant to a direction of the DPP under s.47(1) in respect of a membership offence”. The

power of arrest contained in s.4 of the Act of 1997 “is not encompassed in the statutory code governing the jurisdiction and

procedures of the Special Criminal Court.” Equally, that power, submitted Ms. Murphy “has no place within the Offences against the

State Acts, 1939 to 1998, which is the statutory scheme governing the jurisdiction and procedures of the Special Criminal Court”. She

points out, by virtue of s.4(6) of the 1997 Act, that Act left untouched the power of arrest under s.30 of the Offences against the

State Act.

26. Furthermore, she argued that, once there has been an arrest under s.4 of the 1997 Act, the procedure after that is governed by

s.15(2) of the Criminal Justice Act, 1951 (as inserted by s.18 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 so that a

person arrested under the Section without a 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.”

27. That, she says, never happened in the present case.

Prosecution submissions and jurisdiction.

28. On behalf of the prosecution, Mr. George Bermingham relied in the first instance on the decision of the Court of Criminal Appeal in

The People v. Kehoe [1985] IR 444. There, the applicant had been brought before the Special Criminal Court while in s.30 detention.

He argued that as he had been physically restrained during a shoot out with the Gardaí prior to his arrest, his subsequent purported

arrest under s.30 and its later extension was invalid. Therefore, he had been in unlawful custody at the time he was brought to the

Special Criminal Court.

29. The judgment in the Court of Criminal Appeal was delivered by McCarthy J. who commenced his judgment with the observation:

“This application for leave to appeal has one undeniable characteristic – it is devoid of merit”.

30. The learned judge said this because the applicant had been one of a group who, at a private home in County Wicklow, were found

carrying loaded firearms and subsequently engaged in a gunfight with the Gardaí.

31. McCarthy J. then recorded that the Special Criminal Court before whom the applicant had been brought “Was satisfied that his

jurisdiction as conferred by s.43 of the Offences against the State Act, 1939, is lawfully invoked when, in regard to a scheduled

offence, the Director of Public Prosecutions directs that the person be brought before that Court”. McCarthy J. continued:

“It is sufficient to say that the jurisdiction of the Special Criminal Court is conferred by s.43 of the Act of 1939, and that

that jurisdiction does not depend upon the technical validity of the manner in which an individual may be physically

present before that Court which has (by s.43(1)(c) jurisdiction to order the detention of and to detain in civil or military

custody or to admit to bail pending trial by that Court and during and after such trial until conviction or acquittal, any

person sent forward, transferred or otherwise brought for trial before that Court.”

32. McCarthy J. also made two other relevant observations:

“This is not to say that there are not circumstances constituting unfair procedures or breach of constitutional rights that

would not invalidate a trial; ordinarily, however, as was pointed out during the course of the argument in the Special

Criminal Court by counsel for the Director, the time to take such a point is when first brought before that Court – if the

point is not then taken, it is spent.”

33. As to the latter point, it is sufficient to say that there are no circumstances whatever in the present case capable of constituting

unfair procedures of breach of constitutional rights so as to invalidate the trial. The applicants have instead addressed an argument

to the Court which is wholly technical, as they are entitled to do.

34. Although Mr. Bermingham was prepared to rely on the passage from the judgment of the Court of Criminal Appeal quoted above,

he strongly argued that there was in any event no invalidity, even a technical one, in the manner in which the accused were actually

brought before the Court. His argument on this point may be very simply summarised: it is quite true that there are a number of

different ways in which an accused may be brought before the Special Criminal Court. The Court’s jurisdiction, however does not

depend on any particular one of these ways having been adopted, but only on the accused’s having been “lawfully brought” before

the Court. Each accused here was in fact arrested under s.4 of the 1997 Act and it has not been claimed that the offence was not

an arrestable offence or that no bona fide suspicion existed to ground the arrest, or that the arrest was otherwise invalid. Upon

arrest, the person must normally be brought before a District Court, but s.47, quoted above, permits him to be brought before a

Special Criminal Court “ in lieu of being charged with such offence before a justice of the District Court”, once the Director has given

a direction to that effect.

Decision on jurisdiction issue and further points.

35. 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.

36. The applicants, however, make three other points in relation to the s.4 arrest. First it is said that the power of arrest under s.4

cannot be exercised on a person who is in custody or effectively in custody. Secondly it is said that a person arrested under s.4 must

be brought before a court forthwith and cannot be further detained for any purpose, even to await the sitting of a court. Thirdly it is

said that if a person released from s.30 custody is to be re-arrested under s.4, that re-arrest can only be valid if it is for the purpose

of charging him forthwith.

37. The first submission can be briefly dealt with, for it is grounded on the fallacious proposition that there cannot be an arrest upon

an arrest. In Re Ó Laighelis [1960] IR 93, a substantially similar argument was rejected by Davitt P. who said:

“The fallacy lies in regarding an arrest as essentially the determination of a pre-existing liberty. This is not, in our view, an

essential or necessary feature of arrest. The essence is the restraint from liberty as from the moment of arrest, that is,

the subsequent or future restraint. It is irrelevant, therefore, to the true nature of an arrest whether the person arrested

was then at liberty or not”.

38. The other two points are substantially time points. The first argues that a person re-arrested under s.4 of the 1997 Act must be

immediately charged, because there is no power to hold him pending charging before a court. I do not think that this is so. It flies in

the face of the applicants own argument that, upon a s.4 arrest, the subsequent disposal of the arrested person is governed by s.18

of the Criminal Justice Miscellaneous Provisions Act, 1997. This provides that such a person be brought “as soon as practicable”

before a judge of the District Court. 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. No

complaint has been made that the applicants were detained for any longer than was necessary to bring them before a sitting of the

Court.

39. This view is quite consistent with the classic Irish case on the duties of the Gardaí upon an arrest, Dunne v. Clinton [1930] IR

366. The case is too well known to require long citation: it rejected the proposition that an arrested person could (in the absence of

any statutory provision in that behalf) be held for the purpose of investigation rather than brought before a court. At page 374 of the

report Hanna J. said:

“It is, in my opinion, clearly the law that, once a person is detained by the guards on suspicion of having committed a

felony, it is the duty of the police officer arresting him to take him with reasonable expedition before a Peace

Commissioner. He can be retained in custody only during such a time as is reasonable for that purpose. Any question of

the time necessary to investigate the offence, or to obtain evidence upon which to found a charge, is quite irrelevant. It

is for the Peace Commissioner and not the guard to determine whether the suspected person is to remain in custody or to

be released on bail…

40. Now, what is a reasonable time after arrest? No hard and fast rule can be laid down to cover every case. It must depend on many

circumstances, such as the time and place of the arrest, the number of the accused, whether a Peace Commissioner is easily

available and such other matters as may be relevant”.

41. With the substitution of “court” for “Peace Commissioner” the foregoing appears to me still to represent a valid statement of the

law.

42. Finally, it is said that the s.4 arrest was invalid because the applicant was not charged “forthwith”. This submission is based on

s.30A(1) and (3) of the Offences against the State Acts, 1939 to 1998. The first subsection creates a general prohibition against a

person who was detained pursuant to s.30 but released without any charge having been made against him being arrested again for

the same offence. Subsection (3), however provides:

“Notwithstanding subsection (1) of this Section, a person to whom the subsection relates may be arrested for any

offence for the purpose of charging him with that offence forthwith”.

43. That subsection is in turn substantially identical to s.10(2) of the Criminal Justice Act, 1984, which follows a section providing a

similar protection for a person detained under that Act. Commenting on the Section, Professor Walsh in the work cited above, says:

“This offers statutory support for the police practice of arresting a suspect detained under s.4 for the purpose of charging

him with an offence. Once charged the suspect should normally be brought before a District Court Judge pursuant to s.15

of the Criminal Justice Act, 1951.”

44. This provision, as we have seen, requires that the suspect be produced in court “as soon as practicable”. This applies by analogy

to the person who has been detained under s.30. In each case, the protection is against arrest leading to a further period of

detention in garda custody for the purpose of questioning, but not against arrest for the purpose of being charged.

45. The Court will therefore reject the submission that the Special Criminal Court had no jurisdiction to try the Applicants or any of

them.

Delay in detaining applicants.

46. At or about 1.00 am on the morning of the 11th October, 2002 at Corke Abbey, Bray in the County of Wicklow all five of the

applicants were arrested by different members of An Garda Síochána pursuant to the provisions of s. 15 of the Theft and Fraud Act,

2001.

47. At the Garda Station each of the five applicants was detained under the provisions of s. 4 of the Criminal Justice Act, 1984 (s. 4),

their detention subsequently being extended. Section 4(2) of the Criminal Justice Act, 1984 provides:

“(2) Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects

of having committed an offence to which this section applies, that person may be taken to and detained in a Garda

Síochána station for such period as is authorised by this section if the member of the Garda Síochána in charge of the

station to which he is taken on arrest has at the time of that person's arrival at the station reasonable grounds for

believing that his detention is necessary for the proper investigation of the offence.”

48. The applicants arrived at the Garda Station at approximately 1.25 am on 11th October, 2002. Sergeant Mythen, the member in

charge did not immediately accede to the request of each of the arresting Gardaí that each applicant be detained pursuant to s. 4 of

the 1984 Act. Sergeant Mythen proceeded to process each applicant, Mr. Troy at 1.30 am, Mr. Brennan at 1.35 am, Mr. Birney at

1.45 am, Mr. Gilsenan at 1.55 am, and Mr. O’Donnell at 2.05 am, with Mr. O’Donnell being placed in a cell at 2.08 am.

49. Sergeant Mythen stated in evidence that he did not carry out any investigation and all he wanted to do was to see what was in

the van that the applicants had been in. Having done so Sergeant Mythen accepts that he then asked the various arresting Gardaí

what they wished him to do and they asked for the applicants to be detained pursuant to s. 4 and he decided that they should be so

detained and he proceeded to advise each of the applicants as to what the situation was and that they were being detained

pursuant to s. 4 between 2.30 am and 2.39 am on the morning in question. This information was entered in Box 21 of the custody

record, in respect of each of the applicants. The applicants accordingly were formerly detained pursuant to s. 4 at time intervals of

22 minutes to 31 minutes following the processing of the last of the applicants at 2.08 am.

50. The applicants each advance the argument that s. 4 of the Criminal Justice Act, 1984 has to be construed strictly and that this

results in a situation whereby on arrival at Bray Garda Station Sergeant Mythen as the member in charge having been asked to do so

was not entitled to defer a decision as to whether or not the applicants should be detained pursuant to s. 4. It is submitted that

Sergeant Mythen had no power of deferment, no power to consider evidence, no power to investigate the matter and no power for

effectively having “a second bite of the cherry”. It is submitted on the applicant’s behalf that the member in charge was bound

strictly by the provisions of s. 4 of the Criminal Justice Act, 1984 at the time of arrival of the applicants at Bray Garda Station to take

a decision either to detain each applicant pursuant to s. 4 or not as the case maybe. It is contended on behalf of each of the

applicants that the applicants detention from the moment they arrived at Bray Garda Station at 1.25 am until each was formerly

detained pursuant to s. 4 was unlawful, and that the judgment of the Special Criminal Court (The Court) that they were lawfully

detained is an error of law.

51. At the trial of the action, the Court had the benefit of extensive submissions by counsel on behalf of the applicants.

52. The Court, in giving judgment in this matter on Tuesday 8th February, 2005, carefully considered the evidence that had been

adduced before it and came to the conclusion that while Sergeant Mythen may have used the word ‘refuse’ such a word was used in

the context that he wanted to see the items which had been found in the van before making up his mind as to whether or not it was

appropriate to detain them pursuant to s. 4 of the Criminal Justice Act, 1984. The court came to a conclusion in its judgment that

Sergeant Mythen’s desire to see the items in question before he decided whether or not to detain the accused was not an

investigation of the offence for which each applicant had been arrested. The court came to the conclusion that Sergeant Mythen

merely deferred a decision until he had seen the items in question and in the view of the court it was incumbent upon the member in

charge to satisfy himself that there were reasonable grounds for believing that the applicant’s detention was necessary for the proper

investigation of the offence for which the applicant had been arrested and the court took the view that the wording of s. 4

presupposes an element of consideration on the part of the member in charge before he makes his decision. The court took the view

that the member in charge was not a rubber stamp to the extent that he must accede to the request of the arresting Garda without

further consideration and the court was further of the view that the member in charge was entitled to make such inquiries as he

considered necessary to satisfy himself that it was reasonable to detain the accused.

53. The court took the view that the decision by Sergeant Mythen to process each applicant one by one was very prudent because it

effectively meant that each of the applicants was advised of their rights as soon as possible rather than that they should await

Sergeant Mythen’s decision as to whether or not to detain them before they were advised of those rights.

54. The court accepted that Sergeant Mythen did not literally comply with the provisions of s. 4 of the 1984 Act but the court took

the view that the section has to be construed as necessarily allowing a reasonable period to allow the member in charge process the

arrested person and a reasonable period to enable the member in charge to satisfy himself that it is appropriate to detain the arrested

person.

55. The court took the view that the time taken by Sergeant Mythen was not at all unreasonable and that accordingly none of the

applicants were in unlawful detention between the period when they arrived at Bray Garda Station under arrest and the time that

they were ultimately detained pursuant to s. 4.

56. This Court in its appellate role has to bear in mind that the court had the benefit of seeing and hearing the various witnesses of

observing the manner in which their evidence was given and the demeanour of those giving it. Hay v. O’Grady [1992] 1 I.R. 210.

57. The findings of fact made by the court were supported by credible evidence and this Court is of the view that there is no basis in

law to interfere with the decision of the court that Sergeant Mythen did not refuse to detain the applicants pursuant to s. 4 but used

the word in the context that he wanted to see the items which had been found in the van prior to making up his mind and merely

deferred a decision until he had seen the items in question. Further this Court does not see any basis for interfering with the court’s

finding that Sergeant Mythen did not carry out an investigation into the matter. This Court is satisfied that the wording of s. 4

presupposes an element of consideration on the part of the member in charge before he takes a decision and agrees with the view as

expressed by the court that the member in charge is not a rubber stamp to the extent that he must accede to the request of the

arresting Garda without further consideration.

58. It is quite clear on the factual evidence of this case that there was a continuous process between the applicant’s arrival at Bray

Garda Station at 1.25 am, the processing of the applicants which concluded at 2.08 am and their detention pursuant to s. 4 of the

Criminal Justice Act, 1984, between 2.30 am and 2.39 am. There was no evidence that Sergeant Mythen dealt with any other matter

and the ultimate decision as taken by him in the particular circumstances of this case stems from the arrival of each applicant at Bray

Garda Station against a background where five applicants had to be processed and the request to detain each pursuant to s. 4

considered. There is no evidence of any improper motive by the member in charge.

59. There are a number of significant features in the particular circumstances of this case. There was no unreasonable delay in

bringing the applicants following their arrest at Corke Abbey to the Garda station in Bray. There was no unreasonable delay in advising

each of the applicants of their constitutional and legal rights which is the cornerstone and basic purpose of the regulations governing

the treatment of a person in Garda custody. As has been demonstrated the processing of each of the five applicants who arrived at

the Garda station at 1.25am took until 2.08 am to carry out. Professor Walsh in his treatise ‘criminal procedure’ 2002 at paragraph

5.26, makes the interesting observation with regard to s.4;

“However, ‘arrival at the station’ could be given a broader meaning to embrace not just physical arrival but also the

booking in. This interpretation would enable the member in charge to take into account information acquired about the

suspect in the course of the booking in, including information provided by the arresting officer. This approach would seem

to accord more with the legislative intention evident in the overall scheme of the 1984 Act.”

60. This Court would accede to the submissions as made on each of the applicants behalf that the member in charge was not as a

matter of law entitled to refuse to detain each of the applicants and then carry out his own investigation in order to decide whether

to detain each of the applicants pursuant to s.4. In the particular circumstances of this case the undisturbable findings of fact as

made by the court are to the effect that there was no refusal to detain and no investigation by Sergeant Mythen.

61. This Court is further satisfied that against a background where there was no unreasonable delay in the applicants being brought

to Bray Garda Station following their arrest, no improper motive on behalf of Sergeant Mythen, no refusal by him to detain the

applicants pursuant to s.4 and no investigation carried out by him, the member in charge cannot be criticised for taking a minimal

amount of time to take into account information acquired about the applicants in the course of the booking in process. This Court is

satisfied that “arrival at the station” can be given the broader meaning to embrace not just the physical arriving at the station but

also the booking in process.

62. This Court is of the view that it was clearly the intention of the Oireachtas that the member in charge of a Garda Station in

circumstances where he is asked to detain a prisoner for the purpose of investigation of an offence pursuant to s. 4 should not merely

be a rubber stamp. The role of the member in charge involves both a subjective and objective element and subjectively he must

believe that the applicant’s detention is necessary and objectively must be satisfied that there are reasonable grounds for his belief.

It is clear that the legislature, notwithstanding that s. 4 of the Act has to be construed strictly, did intend that a reasonable period

would have to be allowed to the member in charge to consider his decision following the arrival at the garda station of the arrested

person and in the particular circumstances of this case this Court is of the view that there was no departure from the intention of the

legislature in the manner in which each of the applicants was dealt with and detained pursuant to s. 4 of the Criminal Justice Act,

1984, and that each of the applicants was lawfully detained pursuant to s.4.

The Extension of the Applicants Detention pursuant to Section 4 of the Criminal Justice Act, 1984; the Arrest Detention and

subsequent extension of the Applicants Detention pursuant to Section 30 of the Offences Against the State Act, 1939.

63. It is contended by Niall Durnin S.C. on the applicants behalf that the extension of their detention pursuant to s. 4 of the Criminal

Justice Act 1984 was unlawful and further that their arrest detention and subsequent extension of their detention pursuant to s.30 of

the Offences Against the State Act 1939 was unlawful and that in effect the applicants should have been charged with membership

of an illegal organisation earlier than they were and therefore not exposed to s.4 and s.30 extended detentions.

64. It is contended that the extension of the applicant’s detention pursuant to s.4 of the Criminal Justice Act 1984 was unlawful

because the extension was requested by the member in charge at the Gardaí station and that at the time of the extension the

applicant was suspected by the investigating Gardaí of membership of an unlawful organisation.

65. It was submitted that the member in charge should be independent of the investigation team as his role is to protect the rights of

detained prisoners. It was submitted that it is unlawful for the member in charge to be acting as the agent or advocate of the

investigative team in obtaining an extension of the applicant’s detention from the Superintendent and that the applicants detention

was therefore unlawfully extended.

66. It is submitted that the trial court erred in law and in fact in holding that the extension of the period of s.4 detention was lawful

and was for the proper investigation of the offences for which the applicants were arrested in circumstances where the court

determined from the evidence that it was generally suspected by the members of an Gardaí Siochana that the suspects in detentions

were members of an unlawful organisation.

67. It is further contended on the applicants behalf that the arrest, detention and extension of the applicants pursuant to s.30 was

unlawful because in effect the applicant should have been charged earlier with the offence of membership of an illegal organisation.

68. It is contended on the applicants’ behalf that by the time the s. 4 detention was extended at 6.50 a.m. on 11th October, 2002

the member in charge of the Station and the officers in charge of the investigation and the officers of the Special Detective Unit all

suspected that the applicants were members of the IRA.

69. It was submitted on the applicants behalf that in ruling on the s.30 arrests the trial court was unduly influenced by the

operational practices of the Gardaí.

70. It is contended that the various applicants were in unlawful custody for a number of minutes immediately prior to their subsequent

arrest pursuant to s.30. It is submitted that the consequences of this unlawful detention is that the applicants arrest under s.30 was

unlawful particularly in circumstances where each applicant was only available to be arrested because of the immediately preceding

period of unlawful detention and also in the context of all of the other prior illegalities as referred to on the applicants behalf.

71. If the applicants were in unlawful custody it was for a period of no more than five minutes and no more than two minutes in the

case as argued by Ms. Donnelly. Nothing material happened during this period adverse to the applicants and in the circumstances the

court regards this very short period as de minimis and of no consequence.

72. This Court takes the view that there is no substance to the submissions as made on the applicants behalf in regard to these

matters.

73. For the extension of the detention that was involved to be valid what was required was that the Superintendent had reasonable

grounds for believing that such further detention was necessary for the proper investigation of the offence. The court of trial found

as a fact that the investigation of the offence in respect of which the applicants were arrested was on going at the time of extension

and it also found as a fact that it had no doubt but that Superintendent Moynihan had reasonable grounds for believing that an

extension of the period was necessary for the proper investigation of the offence. The applicants contention that the trial court erred

in holding that the extension of the s.4 detention of the applicants was lawful is rejected.

74. Section 30(1) of the Offences against the State Act provides as follows;

“A member of the Garda Síochána (if he is not in uniform on production of the identification card if demanded) may

without warrant arrest any person whom he suspects of having committed or being about to commit or being or having

being concerned in the commission of an offence under any section or subsection of this Act or an offence which is for

the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document

relating to the commission or intended commission of any such offence as aforesaid or whom he suspects of being in

possession of information relating to the commission or intended commission of any such offence as aforesaid”.

75. The court is satisfied that there was no doubt but that the members of an Garda Síochána who at Convent Avenue Bray in the

County of Wicklow outside Bray Garda Station arrested the applicants pursuant to s.30 believed that they had committed the offence

of membership of an unlawful organisation. The court is satisfied that the applicants are seeking to append to the section that the

powers of the member of the Garda Síochána only applies “provided the person has not previously being arrested under s.4”.

76. It is clear from the evidence before the trial court that the first arresting members did not at the time of the arrest of the

applicants suspect them at that point in time of IRA membership.

77. The Oireachtas has chosen to restrict re-arrest by reference to the suspicions on the part of the original arresting member at the

time of the original arrest. This Court is satisfied that at the time of the original arrest pursuant to s.4 each of the applicants was not

suspected of being a member of the IRA.

78. The submissions made on the applicants behalf in this regard are rejected and this Court is satisfied that each of the applicants

arrest detention and extension pursuant to s.30 and the timing of their being charged with membership of an illegal organisation was

not unlawful.

The admissibility of belief evidence and associated points.

79. Strong exception was taken on behalf of all applicants to the admission of the evidence of a member of An Garda Síochána not

below the rank of Chief Superintendent to the effect that he believed that each accused was at a material time a member of an

unlawful organisation. This objection was taken on several grounds. All related to the proposition that its admission and the alleged

practical impossibility of challenging it deprived each applicant of a fair trial. The basis of the Chief Superintendent’s belief will always

be such that he is entitled to claim privilege in relation to it. This, it was said, deprives the accused of the right to a fair trial by

unreasonably hampering cross-examination and by effectively concealing from the accused, and from the Court, the factual basis of

the evidence on which, in part, it is being asked to act.

80. It is necessary to put this contention in context in two ways: first in terms of the facts of the present case and secondly in

terms of the Constitution, the law, and the practise of the Special Criminal Court.

Factual context.

81. The facts of this case have already been set out. It is perfectly clear that circumstances in which the applicants were arrested

are circumstances of obvious grave suspicion. The presence of weapons with which a person could be threatened, gravely assaulted

or killed, of clothing suggesting that the wearer was a member the Garda Síochána or a security person, of plastic ties capable of

securing a person and rendering him helpless and immobile, of C.S. gas, of face masks, gloves and walkie talkie radios are plainly such

as to give rise to a suspicion of criminality. Some of these items were found in a vehicle which had false number plates and tax and

insurance discs to match the false number plates. They were in the possession of or available to a group of men who met together in

the early hours of the morning, some of whom had bodily markings and one of whom had items bearing the name of an unlawful

organisation. There was no material suggestive of the existence of any conceivable innocent explanation of these facts in

combination. It was expressly conceded by counsel that these facts would give rise to an inference that the applicants were engaged

in one or other of a number of forms of serious criminality. These facts were uncontradicted and were proper to be considered by the

Court of Trial. But they could not, it was contended, give rise to an inference that the persons found in the Transit van were

members of an unlawful organisation. Specifically, it was alleged, the markings and items bearing the name of an unlawful organisation

were equally consistent with representing a previous allegiance to such organisation, now at an end.

Constitutional and legal context.

82. Section 3 of the Offences against the State (Amendment) Act, 1972 as amended by s.4 of the Offences against the State

(Amendment) Act, 1998 provides as follows:

(1)(a) Any statement made orally, in writing or otherwise, or any conduct by an accused person implying or leading to a

reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under s.21

of the Act of 1939 be evidence that he was then such a member.

(b) In paragraph (a) of this subsection ‘conduct’ includes –

(i) Movements actions activities or associations on the part of the accused person, and

(ii) Omission by the accused person to deny published reports that he was a member of such an unlawful

organisation, but the fact of such denial shall not by itself be conclusive.

(2) Where an officer of the Garda Síochána not below the rank of Chief Superintendent, in giving evidence in proceedings

relating to an offence under the said s.21, states that he believes that the accused was at a material time a member of

an unlawful organisation, the statement shall be evidence that he was then such a member.

(3) Subsection (2) of this Section shall be in force whenever and for so long only as part V of the Act of 1939 is in force.

83. The offence of membership of an unlawful organisation, with which all the applicants were charged, was created by s.21 of the

Offences against the State Act, 1939. From the statutory definition of “unlawful organisation” it is clear that such organisations of

their very nature constitute a threat not only to the institutions of the State but to individuals who are properly prepared to co-

operate with the State in convicting members of such organisations. The offence created by s.21 is a scheduled offence so that

charges of membership will be heard only by the Special Criminal Court. Accordingly, the provisions of subsection (2), allowing the

belief evidence of a Chief Superintendent, apply only so long as there remains in force the declaration envisaged by Article 38.3.1 of

the Constitution that “the ordinary courts are inadequate to secure the effective administration of justice”.

84. Finally, it is important to note that the constitutionality of s.3(2) of the Offences against the State Amendment Act, 1972, is not

in question in these proceedings.

Preliminary conclusions.

85. From the context set out above it will be clear that the Court is dealing here with an exceptional provision of limited application

relating to matters of great importance and intimately touching the public welfare and the welfare of the State itself. It would

therefore be quite inappropriate indiscriminately to apply findings made in that context in other areas of the criminal law.

86. Turning to the present case, it will be clear that the evidence of the Chief Superintendent was by no means the only evidence to

which the Court of trial was entitled to have regard. The uncontradicted facts summarised above plainly constitute “movements,

actions, activities or associations” on the part of the applicants.

Practise of the Special Criminal Court.

87. This Court has been told, and accepts, that it is not the practise of the Special Criminal Court to convict a person of membership

of unlawful organisation on the basis of belief evidence, admissible by virtue of s.3(2) of the Act of 1972, alone. Furthermore it

appears that it is not the practise of the Director of Public Prosecutions to institute a prosecution based solely on belief evidence. In

this case of course there is no question of the Chief Superintendent’s belief being the only evidence against the applicants. Looking at

the case as the applicants themselves advanced it, this is a case where there is, admittedly, substantial evidence of criminality

against these applicants: the role of the belief evidence of the Chief Superintendent is, at most, to link the general evidence in the

case specifically to membership of an unlawful organisation. Even looked at in this way, which is the way favoured by the applicants,

the bodily markings and items bearing the name of an unlawful organisation might be regarded as significant, as might the association

of the applicants one with the others. But the belief evidence of the Chief Superintendent was tendered and heard.

DPP v. Kelly.

88. It is also necessary to refer to this recent judgment of the Supreme Court delivered on the 4th April, 2006. This was an appeal

brought to the Supreme Court pursuant to a certificate of this Court under s.29 of the Courts of Justice Act, 1924. The certified point

of law of exceptional public importance was:

“Are the requirements of Article 38 of the Constitution satisfied where an accused is precluded from enquiring into the

basis of the evidence of belief given against him at his trial pursuant to the provisions of the Offences against the State

Act, 1939, as amended, on a charge of membership of an unlawful organisation before the Special Criminal Court?”

89. The Court emphasised that the presumption of constitutionality applied to s.3(2) of the Act of 1972. The majority judgment, that

of Geoghegan J. considered the background to the Offences against the State Acts as follows:

“it is perfectly clear that the legislation has been passed in the context of preserving the security of the State and the

legitimate concern that it will not in practise be possible in many, if not most cases, to adduce direct evidence from lay

witnesses establishing illegal membership. Such witnesses will not come forward under a fear of reprisal. The Special Court

was established to avoid the mischief of juror coercion and intimidation. In relation to all anti-terrorist offences, as a

matter of common sense, there will be equal apprehension about intimidation of witnesses. It is a reasonable inference to

draw that the subsection was enacted out of bitter experience.”

90. Mr. Justice Geoghegan further discussed s.3(2) as follows:

"It is carefully crafted ensuring that the belief evidence must come from an officer of An Garda Síochána not below the

rank of Chief Superintendent. This is with a view to establishing trust and credibility as far as possible. Counsel for the

appellant accepts the concept of informer confidentiality but any extensive probing in relation to the basis of the

information irrespective of whether names are requested or not may inevitably undermine the protection of the informer

by affording clues to his identity. Even without the statutory provision, informer privilege may involve more than merely

refusing to divulge the name of an informer. Surrounding evidence which would be likely or might tend to disclose the

identity of the informer would itself be protected by the privilege in the sense that it may not be allowed to be adduced

under cross-examination. I have no doubt that in so far as [counsel] was limited in his cross-examination of Chief

Superintendent Kelly, permission for this limitation was inherent in the subsection itself which enjoys the presumption of

constitutionality".

91. The Court gratefully adopts this view of s.3(2).

The belief evidence in this case.

92. Chief Superintendent Philip Kelly gave evidence on the seventeenth day of the trial. He said that he was a Chief Superintendent in

An Garda Síochána and was in charge of the Special Detective Unit in Harcourt Square. He held that position at the time of the arrest

of the applicants, and also of the trial. He said that his work in the Garda Síochána since 1978 had been concerned with the fight

against subversion.

93. The Chief Superintendent’s belief evidence, admissible by virtue of s.3(2) was similar in relation to each of the applicants and no

reliance was placed on any distinction. It is therefore sufficient to set out the evidence in relation to the first-named applicant, Mr.

Birney. The Chief Superintendent said:

“I believe, My Lords, that on the – Stephen Birney was within the State on the 11th October, 2002, a member of an

unlawful organisation which is styling itself the Irish Republican Army, otherwise known as Oglaigh na hEireann otherwise

known as the IRA. I based my belief on confidential information available to me before his arrest on the 11th October,

2002 my belief is not based on matters discovered that is arrest at Corke Abbey, Bray, on the 11th October, 2002…”.

94. The Chief Superintendent confirmed that his belief was not based on any matters that came to light during the course of the

investigation subsequent to that arrest, and neither was it based on its failure or refusal to answer questions put to him during the

course of interviews following that address.

95. In a cross-examination the Chief Superintendent contended that the information which he had, and which grounded his belief, in

each case, was based on confidential information and that he was claiming privilege in respect of the source of the information on the

basis that “ if I did disclose it it would endanger life and affect the security of the State”. He confirmed that he had sources both

within and outside the Garda Síochána.

Special Criminal Court’s findings on the evidence.

96. The Special Criminal Court declared that the evidence of the Chief Superintendent was admissible in the case against each

applicant but that it’s weight was a matter which would have to be considered by the Court in its capacity as the Tribunal of Fact,

bearing in mind the limited scope for cross-examination. In giving the judgment of the Court, on the 21st February, 2005, the

President, Mr. Justice O’Donovan, said that:

“This Court, as it has declared on previous occasions, is not disposed to convict any one of these accused on the charge

preferred against him solely on the evidence of Chief Superintendent Kelly, because the Court does not consider that the

demands of justice require that it should do so. Rather does the Court consider that, before it would convict any one of

the accused, there should be evidence which supports or corroborates the belief evidence of Chief Superintendent Kelly.

In that regard, as the Court has indicated in its judgment herein on the 17th inst., in the light of Chief Superintendent

Kelly’s plea of privilege which prevents the defence from inquiring into the source of the information which led him to the

belief that each of the accused was a member of the IRA, the Court has to consider what weight if any can be given to

the Chief Superintendent’s evidence in that behalf. While the Court does not doubt the honesty of Chief Superintendent

Kelly’s beliefs, in the absence of some inquiry as to the reliability of the sources upon which those beliefs are based, it is

arguable that the accused will not get a fair trial and, indeed, that the provisions of s.6(1) and 3(d) of the European

Convention on Human Rights is offended insofar as the prosecution of the accused is concerned. On the other hand, given

the Chief Superintendent’s evidence that a disclosure of the sources of his belief would put people’s lives in danger and

compromise ongoing investigations or surveillance operations on the part of the Garda Síochána, it is unthinkable that he

would be compelled to identify his sources. Accordingly the Court must balance the interest of the accused on the one

hand and the interests of an unidentified informer or informers on the other”.

97. The Court then referred to a previously decided case which was not applicable to the present circumstances and continued:

“In those circumstances, can the Court give any weight to the belief evidence of Chief Superintendent Kelly? Given that

the Court does not question the honesty of the Chief Superintendent’s beliefs and given that those beliefs were not

challenged on cross-examination, it seems to the Court that there would be no justification whatever to ignore the Chief

Superintendent’s evidence. Accordingly the Court is disposed to act upon it.

98. In the light of the foregoing it was the submission of the prosecution that the belief evidence of Chief Superintendent Kelly that

each one of the accused was, at the material time, a member of the IRA, is corroborated or supported in a number of respects”.

99. The Court then analysed at considerable length and over more than twenty pages of transcript, the corroborating evidence. In

particular it held that it was entitled to draw an inference from the failure of each applicant to answer questions put to him, and that

their silence amounted to corroboration of the belief evidence. The Court then analysed the general evidence of the case, summarised

at the start of this judgment. It emphasised that this evidence had to be looked at collectively, even though individual items of it

might not individually point to guilt of the offence charged. It continued:

“However, viewed collectively, in the context of the belief evidence of Chief Superintendent Kelly and of the fact that

they failed to answer questions material to membership of an illegal organisation during interviews in the course of which

the provisions of s.2 of the 1998 Act were invoked, it seems to the Court that whatever the accused were doing or

intended to do at Corke Abbey, Bray, on the evening of the 10th October, 2002, coupled with the fact that each of them

had tattoos on their persons which reflect republican sympathies, takes on a very different view and in the opinion of the

Court points inexorably to membership of an illegal organisation”.

Decision on admissibility.

100. The belief evidence of the Chief Superintendent is specifically rendered admissible by the statutory provisions set out earlier in

this judgment. It is quite clear that the Special Criminal Court was fully aware of the unusual nature of this provision and of the

difficulties its operation can pose for the defence. The Special Criminal Court was careful to distinguish clearly between the

admissibility of the evidence and the weight to be given to it. Given that the constitutionality of the Section permitting the evidence

is not in question in these proceedings there seems to be no doubt that it was, in principle, admissible. The Special Criminal Court

specifically repeated its established policy of not convicting solely on belief evidence.

101. In the present case it seems to us that the Chief Superintendent’s evidence was amply corroborated both by the failure to

answer to questions and by the general evidence in the case. The Special Criminal Court correctly concluded that that evidence had

to be looked at collectively, and not merely in its individual parts. The applicants were congregated together in a van, with the

paraphernalia already mentioned, and with the physical marks described. It was conceded that these facts were suggestive of serious

criminality. One could indeed go further and say that any reasonable person would be quite satisfied of the criminal nature of their

gathering. The role of the Chief Superintendent’s evidence was to connect those facts to the specific offence with which these men

were charged. The Chief Superintendent’s evidence was admissible as evidence that each of the applicants was such a member and

this view is itself quite consistent with the balance of the evidence. Indeed, it is not merely consistent with it: the balance of the

evidence firmly supports and corroborates the Chief Superintendent’s belief, based on sources quite apart from the facts of the

present case.

102. Those facts are themselves strongly suggestive of membership of an unlawful organisation. A group of men, some of whom

actually bore the name of an unlawful organisation tattooed on their persons, were gathered together in the suspicious and indeed

sinister circumstances established in evidence with the paraphernalia described. In that context they refused to answer clearly

relevant questions even when the consequences of their doing so were pointed out to them. It is unnecessary to consider whether

these matters, without more, might support the conviction because all that is required that they corroborate the unchallenged opinion

of the Chief Superintendent. The Court is quite satisfied that they do so. The nature of corroboration has been recently considered in

DPP v. Gilligan (unreported, Supreme Court, 23rd November, 2005). There, Denham J., speaking of corroboration defined the

requirements of it as follows:

“First, that it tends to implicate the accused in the commission of the offence. It renders it more probable that the

accused committed the crime. Secondly it should be independent of the evidence which makes corroboration desirable.”

103. These criteria appear to us to be amply met in the present case.

Alleged incorrect legal advice.

104. On behalf of certain of the applicants it was alleged that a solicitor who was called to see them gave them advice which was

incorrect in point of law. It was said that he had advised that they were not obliged to make a statement unless they wished to do

so and failed to explain the statutory regime under which inferences adverse to them might be drawn from failure to answer certain

questions. This circumstance, it was said, made it unsafe and inappropriate to draw any inference from the failure to answer

questions, notwithstanding that the fact that such inference might be drawn was explained to all the applicants by the Gardaí.

105. This Court has read the ruling of the Special Criminal Court on this issue, and in particular that Court’s close analysis of the legal

advice actually given. We can find no fault in the course adopted by the trial court. But it seems desirable to make certain further

observations.

106. In the first place, it is of course important that a person held in custody for the purpose of an investigation have access, if he

wishes, to a legal adviser. Such an adviser, normally a solicitor practising in the locality, must of course be entirely independent of the

State and of the Gardaí. Sometimes a person held in custody will have his own solicitor, though there may be logistical difficulties in

contacting a specific practitioner for various reasons, notably the time of the day or night when advice is required and the

practitioner’s other commitments. In some circumstances a person may be given a list of solicitors or told of certain solicitors available

in the locality. But whichever course is adopted it is essential that the advice be quite independent of the State and the Gardaí.

107. By virtue of this independence, it is difficult to see that the State or the Gardaí can be in any way responsible for the content of

the advice given, or for any shortcomings in it.

108. In this case it is argued that, even if the State and the Gardaí cannot be responsible for the advice given, the fact that certain

portions of that advice are allegedly inaccurate should make the Court hesitate to draw any inference from a failure to answer

questions.

109. In the opinion of this Court, that submission is made at an unacceptable level of generality: indeed it is speculative only. Both

before and after receiving legal advice all applicants declined any questions of relevance to the inquiry and some declined to answer

any questions at all, even questions as to whether they were “alright for water”. This course of action which they had adopted was

unaffected by any legal advice received. None of the applicants said to have received incorrect advice gave evidence that this

advice was responsible for their failure to answer relevant questions or that it affected their course of action in any way at all. The

relevant applicants did not deny that the terms of the statutory provision, whereby adverse inferences might be drawn from a refusal

to answer questions, was explained to them.

110. In other words, there has been a failure on the part of the applicants to engage with the facts of the case or to establish that

the advice said to be incorrect had any practical effect. The Court does not find it necessary to repeat the discussion in the Court of

Trial as to whether the advice given was actually incorrect, or incomplete. The applicants have simply made no showing at all on the

question of any detriment to them from the allegedly incorrect or incomplete advice. This is part of their general policy on this appeal,

of failing to engage with the facts of the case at all. It is quite clear that no injustice or unfairness accrued to any applicant by

reason of the advice they were given.

111. There is no substance in the point taken that certain applicants were not told of the unavailability of the solicitor nominated.

The proffer of another solicitor clearly implies this information. The availability of the first solicitor was not pursued by any applicant.

A concerted agreement?

112. On this appeal the applicants criticised the Special Criminal Court for finding that the failure of each and every applicant to

answer relevant questions when in detention reflected a concerted policy between the applicants. In all the circumstances of the

case, including the initial association between the applicants, this does not appear to us to be an unreasonable inference to draw. We

believe, on the other hand, that it was an inference which was open to a court of trial which saw and heard all the witnesses who

were called before it. But it is not in our view central to any relevant finding. The ability to draw an inference from a failure to answer

certain questions would apply whether the present applicants were tried jointly or severally. Even if tried severally their associations

would be a relevant factor to consider. Having regard to the very considerable strength of the general evidence in this case, and the

uncontradicted failure of each accused to answer relevant questions, it appears to this Court that there is no need to go further and

make a positive finding of a concerted policy as between the applicants to answer no questions, however reasonable and indeed

obvious such a finding may seem to some.

A search of First-named applicant’s residence.

113. A separate ground of appeal was raised in respect of the first named applicant, Stephen Birney, in challenging the validity of a

warrant authorising the search of the applicant’s residence.

114. Section 29(1) of the Offences against the State Act, 1939, as substituted by s.5 of the Criminal Law Act, 1926 provides:

“Where a member of the Garda Síochána not below the rank of Superintendent is satisfied that there is reasonable ground

for believing that evidence of relating to the commission or intended commission of an offence under this Act or the

Criminal Law Act, 1976, or an offence which is for the time being a scheduled offence for the purposes of Part 5 of this

Act, or evidence relating to the commission or intended commission of treason, is to be found in any building or part of a

building or in any vehicle, vessel, aircraft or hovercraft or in any other place whatsoever, he may issue to a member of

the Garda Síochána, not below the rank of a Sergeant a search warrant under this section in relation to such place.”

115. Superintendent Ian Maguire gave evidence that at approximately 6am on 11th October, 2002, he authorised a warrant under

s.29 of the Offences against the State Act, 1939 as amended to Detective Sergeant Bill Hanrahan authorising the searching of the

residence of the first named applicant herein at 117 Conquer Hill Road, Clontarf, Dublin 3. He also gave evidence that he was at the

relevant time a Detective Superintendent attached to the special detective unit in charge of operations for the special detective unit.

In his evidence he stated that a Detective Sergeant Divine called to his house at sometime between 5 and 5.30am on the morning of

11th October. He reviewed and discussed with Detective Sergeant Divine the arrests that had been made, the circumstances in which

the arrests were made, the identity of the party, the connections between the parties and their associations, the array of items

found in their possession and he confirmed that at that stage he decided to mount a full investigation into this matter for the purpose

of establishing whether or not the five applicants were a unit of the IRA on active service. At approximately 6am that morning having

decided that the matter should be investigated he stated that he issued a number of warrants to search houses and specifically the

warrant was issued to search the address of the first named applicant. He subsequently stated that at around 12.15am on 11th he

went to Bray Garda Station. He held a meeting with members of the special detective unit there and confirmed that at that stage he

was in charge of the investigation.

116. It is contended for on behalf of the first named applicant that the warrant was invalid because it was not issued by a

superintendent independent of the investigation, in other words that the issue of the warrant by Chief Superintendent Maguire as he

now is was a breach of the principle Nemo Iudex in Causa sua. Thus it is argued that the issue of the warrant by Superintendent

Maguire offends against two principles namely, the guarantee of the inviolability of the dwelling under Article 40.5 of the Constitution.

It is also contended that the issue of the warrant by the Superintendent offends against the guarantee of a fair trial enshrined in

Article 38 of the Constitution in that in issuing the warrant he was acting as a judge in his own cause namely as head of the

investigation. The argument is advanced on behalf of the first named applicant that the issue of the warrant amounts to a breach of

fair procedures in that there was no independent impartial assessment of the need for the warrant. Lengthy submissions challenging

the validity of the search warrants were made on behalf of the second named applicant (who does not appeal on this point) and

those submissions were adopted on behalf of the applicant at his trial. The Special Criminal Court (the Court) gave its judgment on

this issue on the 17th February, 2005. The Court was not persuaded that s.29 of the Offences against the State Act, 1939 precludes

the Superintendent, who is in charge of an investigation from issuing such a warrant in the course of the investigation in which he is

involved. The Court went on to conclude that on a literal interpretation of the section there was no such prohibition. The Court

rejected the proposition that the case of D.P.P. v. Owens [1999] 1 I.R. 17 was authority for the proposition that a search warrant

pursuant to the provisions of s.29 of the Offences Against the State Act must be issued by a Superintendent who is independent of

the investigation in respect of which the search warrant is required. The Court did not accept that there must be a judgment

independent of the officer who is investigating an offence, that there are reasonable grounds for believing that evidence in relation to

the commission of that offence is to be found in any building.

117. D.P.P. v. Owens is a decision of the Supreme Court on a case stated pursuant to s.34 of the Criminal Procedure Act, 1967,

namely “the question of law hereby referred to the Supreme Court for determination is whether the learned Trial Judge properly

exercised his judicial discretion in holding that a Peace Commissioner must give evidence to prove his state of mind at the time of

issuing the warrant”.

118. The background to that case was that a trial took place on 10th November, 1997, before His Honour Judge Matthews. There

were three counts on the indictment, namely assault causing actual bodily harm, having an article in a public area intending unlawfully

to cause injury, incapacitate or intimidate and robbery. The offences were alleged to have been committed on 21st October, 1994.

On 9th November, 1994, Garda Byrne acting on confidential information received by a colleague that some of the proceeds of the

robbery might be found at a particular address, obtained from a Mr. Fowler, a Peace Commissioner, a warrant to search the premises.

Gardaí called to the premises, the door was opened by the respondent, the search warrant was produced and a search was

conducted but nothing was found of an incriminating nature. The respondent was arrested and subsequently at the trial it was

indicated that the defence were challenging the search warrant and putting the prosecution on formal proof thereof. The basis of this

was that if the search warrant was invalid the entry by police officers onto the premises was illegal amounting to an unconstitutional

invasion of the respondent’s dwelling house and that therefore the subsequent arrest was invalid as was the detention of the

respondent pursuant to s.4 of the Criminal Justice Act, 1984 and any statement made by him whilst in unlawful detention was

inadmissible in evidence against him. At the commencement of the trial the Peace Commissioner was eighty eight years of age and too

ill to come to court to explain the state of his mind at the time he issued the search warrant three years earlier. The trial judge

accordingly held that the Peace Commissioner’s signature was not sufficient to establish the validity of the warrant and that the

Peace Commissioner had to be present in person to prove his state of mind and if necessary to be available for cross-examination by

the defence. The trial judge ruled that there was no evidence to establish the validity of the search warrant and consequently ruled

that the subsequent arrest and detention were invalid and unconstitutional and directed the jury to find the respondent not guilty. It

was in those circumstances that the Director of Public Prosecutions stated the case to the Supreme Court. In his judgment Barrington

J. referred at p. 22 to the decision in the case of D.P.P. v. Byrne [1987] I.R. 363 in which the accused had been arrested in

pursuance of s.30 of the Offences Against the State Act, 1939 and his initial period of detention had been extended for a further four

hours by a Garda Chief Superintendent. The Chief Superintendent was no longer alive at the date of the trial and no evidence could

therefore be adduced as to the state of his mind when directing the extension period. The trial judge ruled the statement inadmissible

and directed the jury to acquit the respondent. Barrington J. quoted from the judgment of McCarthy J. in that decision as follows:-

“McCarthy J. having referred to the presumption ‘omnia praesumunter rite esse acta’ continued (at p. 371) of his

judgment as follows:

‘This presumption, however, is limited; there is a wide gap between a presumption in favour of the regularity of acts and

against misconduct and bad faith and that degree of proof required not merely in every criminal trial, as such but, also, in

every instance of what is, on its face a breach of the constitutional right to personal liberty. There is no suggestion that

Chief Superintendent Joy did not entertain the suspicion necessary to warrant giving the statutory direction; that is not

to the point. The necessary underpinning of the direction must be positively proved and cannot be inferred merely from

the signing of a formal direction or the intimation of a less formal direction by word of mouth.’

The Peace Commissioner like the Chief Superintendent, is a public officer but he is not a court of record. A search warrant

is also a document which may affect constitutional rights. It does not speak for itself in a criminal trial. It appears to me

that the learned trial judge was right in feeling himself bound by the decision in The People (D.P.P.) v. Byrne [1987] I.R.

363 I would accordingly, answer the question referred to as ‘yes’.”

119. This Court is of the view that the Court correctly decided that D.P.P. v. Owens is not an authority for the proposition that a

search warrant pursuant to the provisions of s.29 of the Offences Against the State Act must be issued by a Superintendent

independent of the investigation in respect of which the search warrant is required. In the course of the submissions before the

Special Criminal Court it had been argued that if s.29 of the 1939 Act did not require that such a warrant be issued by an independent

authority, then the section is unconstitutional. In support of this contention the Court was referred to a Canadian decision, Hunter v.

Southam Inc. [1984] 2 S.C.R. 145. The Court ruled correctly that it had no jurisdiction to adjudicate on the constitutionality of s. 29

and this Court is in no different position.

120. This Court is likewise satisfied that the wording of s.29(1) of the Offences against the State Act is clear and unambiguous. For

the applicant’s contention to be correct, it would be necessary to read into the words of the statute a proviso that the

Superintendent concerned should not be one involved in the particular investigation. This Court can see no basis for so doing.

Accordingly this Court does not accept the submissions on behalf of the first named applicant in this regard.

Conclusion.

121. The foregoing disposes of all the points seriously urged by the applicants. In light of the conclusions set out above the Court will

refuse the applications for leave to appeal.