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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'Brien -v- The Special Criminal Court & Anor [2007] IESC 45 (24 October 2007)
URL: http://www.bailii.org/ie/cases/IESC/2007/S45.html
Cite as: [2008] 4 IR 514, [2008] 1 ILRM 510, [2007] IESC 45, [2010] 1 IR 609
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Judgment Title: O'Brien -v- The Special Criminal Court & Anor

Neutral Citation: [2007] IESC 45

Supreme Court Record Number: 349/2005

High Court Record Number: 2005 30 JR

Date of Delivery: 24 October 2007

Court: Supreme Court


Composition of Court: Murray C.J., Denham J., Fennelly J.

Judgment by: Denham J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Denham J.
Other (see notes)
Murray C.J.
Fennelly J.
Other (see notes)
Murray C.J.


Outcome: Appeal Allowed




THE SUPREME COURT

[S.C. No: 349 of 2005]
Murray C.J.
Denham J.
Fennelly J.

Between/
Barry O'Brien

Applicant/Appellant
and

The Special Criminal Court and the Director of Public Prosecutions

Respondents
Judgment delivered the 24th day of October, 2007 by Denham J.
1. Barry O'Brien, the applicant/appellant, hereinafter referred to as 'the applicant', has appealed to this Court from the order and judgment of the High Court (MacMenamin J.) given on the 28th day of July, 2005, whereby the applicant's application for judicial review was declined, and where it was held that the Special Criminal Court had jurisdiction, that the applicant was lawfully before it, and that his trial should proceed.

2. The applicant is facing trial before the Special Criminal Court on the charge of membership of an unlawful organisation on the 6th April, 2004, pursuant to s.2 of the Offences Against the State Act, 1939 to 1998.

3. It is the applicant's case that the Special Criminal Court has no jurisdiction to try him on the charge because he is not lawfully before the Special Criminal Court for trial under the Offences Against the State Acts, 1939 to 1998 and that the decision of the Special Criminal Court of the 14th December, 2004 was ultra vires the powers of the Special Criminal Court. On behalf of the applicant it was submitted that he was not lawfully before the Special Criminal Court:-
        (i) Because the arrest power used to make him amenable to the Court, s.4 of the Criminal Law Act, 1997, has no place in the special statutory code which governs the jurisdiction and procedures of the Special Criminal Court.

        (ii) Even if this Court does not uphold that submission it was contended that that section does not authorise the detention of any person for the purpose of making him amenable to be charged at a later date.

        (iii) It was submitted that the means used in this case were prohibited by s.30(A)(1) of the Offences Against the State Act, 1939 to 1998.

4. Leave to apply for Judicial Review
On the 17th January, 2005 the applicant was given leave to apply for judicial review for the following reliefs:-
        (a) Certiorari, quashing the decision of the Special Criminal Court, made on the 14th December, 2004, that the applicant is not unlawfully before the Special Criminal Court on the charge of membership of an unlawful organisation on the 6th day of April, 2004 under section 21 of the Offences Against the State Act, 1939 to 1998.

        (b) Declaration by way of Judicial Review that the Special Criminal Court has no jurisdiction to try the applicant on the charge of membership of an unlawful organisation under section 21 of the Offences Against the State Act, 1939/98, because the applicant is unlawfully before the Special Criminal Court.
    The grounds for the application were:-
          "The Special Criminal Court has no jurisdiction to try the Applicant on the aforesaid charge of membership of an unlawful organisation under section 21 of the Offences Against the State Act 1939, because the Applicant is not lawfully before the Special Criminal Court for trial under the Offences Against the State Act 1939/1998, and the decision of the Special Criminal Court made on the 14th day of December, 2004, to the contrary, was ultra vires the Special Criminal Court."

    5. The High Court
    In a judgment delivered on 28th July, 2005 the High Court, having reviewed the law and the facts, held:
          "In the light of the foregoing, and having regard to the specific circumstances of this case, the Court will hold that the direction of the Director of Public Prosecutions was sufficient to invoke the jurisdiction of the Special Criminal Court and to preclude the jurisdiction of the District Court. Again having regard to the time sequence, the totality of circumstances, the absence of any evidence of mala fides or prejudice and the convening of the Special Criminal Court at 12 midday on the following Friday this Court will hold that on the facts the applicant has been brought before the Special Criminal Court within a time frame which may be interpreted as immediately and certainly as soon as was practicable.

          It follows from these findings that the Court will hold that the Special Criminal Court has jurisdiction, that the applicant is lawfully before it, and that the trial should be permitted to proceed in accordance with law. The Court will therefore decline the application for judicial review."

    6. Grounds of Appeal
    The applicant has appealed against that decision of the High Court, filing twenty five grounds of appeal. At the core of this appeal is the query as to how a person may be 'lawfully brought' before the Special Criminal Court. May a person be lawfully brought before the Special Criminal Court only by way of provisions of the Offences Against the State Acts? Or, may the provisions of the general criminal law be used by the authorities? And, is s.30A of the Offences Against the State Act, 1939 to 1998 applicable? If it is applicable, what is the meaning of 'forthwith'?

    7. The Law
    The Offences Against the State Act, 1939, s.43, provides:
            "43.- (1) A Special Criminal Court shall have jurisdiction to try and to convict or acquit any person lawfully brought before that Court for trial under this Act, …:-
            [the emphasis is added]

    The key words are "lawfully brought". I shall return to these words later in the judgment.
    Section 47 refers to the bringing of a person before the Special Criminal Court. It provides:
            47.- (1) Whenever it is intended to charge a person with a scheduled offence, the Director of Public Prosecutions may, if he so thinks proper, direct that such person shall, in lieu of being, charged with such offence before a justice of the District Court, be brought before a Special Criminal Court and there charged with such offence and, upon such direction being so given, such person shall be brought before a Special Criminal Court and shall be charged before that Court with such offence and shall be tried by such Court on such charge.

            (2) Whenever it is intended to charge a person with an offence which is not a scheduled offence and the Director of Public Prosecutions certifies that the ordinary Courts are, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, the foregoing sub-section of this section shall apply and have effect as if the offence with which such person is so intended to be charged were a scheduled offence.

            (3) Whenever a person is required by this section to be brought before a Special Criminal Court and charged before that Court with such offence, it shall be lawful for such Special Criminal Court to issue a warrant for the arrest of such person and the bringing of him before such Court and, upon the issue of such warrant, it shall be lawful for such person to be arrested thereunder and brought in custody before such Court."

    Relevant law on arrest is to be found in s.4(3) of the Criminal Law Act, 1997, which provides:-
            "Where a member of the Garda Síochána, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence."

    The issue of rearrest is addressed in the Offences Against the State Act, 1939 s.30A, which was inserted by s.11 of the Offences Against the State (Amended) Act, 1998. This section provides:-
          "The following section is hereby inserted after section 30 of the Act of 1939:
              "30A. (1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 30 of this Act and is released without any charge having been made against him he shall not—
                    (a) be arrested again for the same offence, or
                    (b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Síochána by whom he was arrested, suspected, or ought reasonably to have suspected, him of having committed,
              except under the authority of a warrant issued by a judge of the District Court who is satisfied on information supplied on oath by an officer of the Garda Síochána not below the rank of superintendent that further information has come to the knowledge of the Garda Síochána since the person's release as to his suspected participation in the offence for which his arrest is sought.
              (2) Section 30 of this Act, and, in particular, any powers conferred thereby, shall apply to or in respect of a person arrested in connection with an offence to which that section relates under a warrant issued pursuant to subsection (1) of this section as it applies to or in respect of a person to whom that section applies, with the following and any other necessary modifications:
                (a) the substitution of the following subsection for subsection (3):
                      '(3) Whenever a person is arrested under a warrant issued pursuant to section 30A(1) of this Act, he may be removed to and detained in custody in a Garda Síochána station, a prison or some other convenient place for a period of 24 hours from the time of his arrest.',
                (b) the deletion of subsections (4), (4A) and (4B), and
                (c) the addition of the following at the end of subsection (4C):
                    or, in case the detention follows an arrest under a
                    warrant issued pursuant to section 30A of this Act, by subsection (3) of this section as substituted by the said section 30A.'.
                (4) Notwithstanding subsection (1) of this section, a person to whom that subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith."
                [the emphasis is added]

    Key words relevant to this case are: 'for the purpose of charging him with that offence forthwith'.

    8. "Lawfully Brought"
    The first question to be determined is to what the words 'lawfully brought', in s.43 of the Offences Against the State Act 1939 to 1998, refer. Does it have a restrictive meaning and mean 'lawfully brought' pursuant to procedures under the Offences Against the State Act 1939 to 1998? Or, does it have a more general meaning, and mean 'lawfully brought' pursuant to law?

    9. I am satisfied that the words of s.43(1) are clear. Provision is made for the jurisdiction of the Special Criminal Court in the words "A Special Criminal Court shall have jurisdiction to try and to convict or acquit …". That jurisdiction may be exercised over "any person lawfully brought before that Court for trial under this Act, …". In construing the words, the issue is whether the words "under this Act" govern the words "lawfully brought". I am satisfied that they do not. Taking a strict construction of the sentence the words 'under this Act' refer only to the words 'for trial'. Thus the meaning of the sentence is that jurisdiction may be exercised over any person lawfully brought before the Special Criminal Court for trial. There are no express words stating that the person has to be brought before the Court pursuant to the provisions of the Offences Against the State Acts. While the legislation should be strictly construed, this does not mean it is necessary to seek out a meaning, or indeed to legislate for a meaning, which is not there. The Act refers simply to 'any person lawfully brought'. There are no qualifying words to that phrase. The sentence concludes with the words 'for trial under this Act', and thus clearly provides for a trial pursuant to the Act, which is a specific type of trial. No words such as 'under this Act' qualify the words 'lawfully brought'. I am satisfied that the clear meaning of the section, on first principles, is that the term 'lawfully brought' has a general meaning and is not limited to procedures under the Offences Against the State Act 1939 to 1998. Thus a person may be lawfully brought before the Special Criminal Court in accordance with general law, and not necessarily the specific law of the Offences Against the State Act, 1939, as amended.

    10. I am affirmed in this view by, and I adopt the judgment of, the Court of Criminal Appeal, in Birney v. D.P.P.     [2006] IECCA 58 (12th May, 2006). The judgment of the Court was delivered by Hardiman J. That court held:-
          "In the opinion of the Court, no reason has been advanced as to why a person lawfully arrested under s.4 of the 1997 Act may not, pursuant to s.47 of the 1939 Act, be brought before the Special Criminal Court once the direction of the Director of Public Prosecutions has been given. Equally, no reason has been advanced for the proposition that the phrase "lawfully brought" should be interpreted as though it read "lawfully brought in the exercise of any power conferred in the Offences Against the State Acts, 1939 to 1998, and not otherwise…". There is simply no warrant for circumscribing the meaning of the phrase "lawfully brought" in the manner proposed by the applicants."

    Similarly I adopt and apply the decision of the Court of Criminal Appeal in The People (D.P.P.) v. Pringle and McCann (1981) 2 Frewer 57, where, at p.90 - 91, the judgment of the Court, delivered by O'Higgins C.J. was as follows:
          "Section 43 of the Offences Against the State Act, 1939, gives to the Special Criminal Court jurisdiction to try and to convict or acquit any person lawfully brought before that Court but there is nothing in the terms of that section or in the other provisions contained in the Act of 1939 which could be interpreted as confining the method of lawfully bringing before the Special Criminal Court a person to be tried by it to an arrest under Section 30 or pursuant to a warrant of the Court, as is submitted."

    11. I am satisfied that the term 'lawfully brought' in s.43 of the Offences Against the State Act, 1939, has a general meaning, and is not qualified so as to mean that a person is required to be lawfully brought pursuant to the Offences Against the State Acts, 1939 to 1998. That conclusion determines the first issue in this appeal.

    12. Direction by the D.P.P.
    The Director of Public Prosecutions has power, pursuant to s.47 of the Offences Against the State Act 1939, to direct that a person be brought before the Special Criminal Court to be charged, instead of being charged before the District Court. Section 47(1) gives to the Director of Public Prosecutions this specific power, an express power, to direct that a person be charged before the Special Criminal Court. When it is intended to charge a person with a scheduled offence, the Director may, if he so thinks proper, direct that the person shall, "in lieu" of being charged with such offence before the District Court be brought before the Special Criminal Court and "there" charged with the offence. On such direction being given by the Director, a person shall be brought before the Special Criminal Court and there charged with such offence, and then tried by the Special Criminal Court on that charge. I am satisfied that the direction of the Director of Public Prosecutions was sufficient to invoke the jurisdiction of the Special Criminal Court. On this issue I would affirm the decision of the High Court.

    13. Arrest
    The arrest in this case was under s.4 of the Criminal Law Act, 1997. The section has been set out earlier in this judgment. This is a statutory form of the common law power of arrest. It is a general power of arrest. The Offences Against the State Act, 1939 to 1998, does not specifically exclude the use of the general power of arrest. To interpret an exclusion of this general power of arrest, from the procedures leading to the use of the jurisdiction of the Special Criminal Court, would require that specific and express words be read into the legislative scheme, either specifically prohibiting such general powers of arrest, or specifically requiring only the use of the Act itself, in prosecutions under the Offences Against the State Act, 1939 to 1998. No such specific or express words are present in the legislative scheme, nor may they be inferred. To make such an inference would be to legislate, and so would be a step too far.
    Therefore, I am satisfied that the legislature did not exclude the use of the general power of arrest in the prosecution of offences in, and the exercise of, the jurisdiction of the Special Criminal Court.

    14. 'As soon as Practicable'
    A timescale is provided for in s.15(2) of the Criminal Justice Act, 1951, as inserted by s.18 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, which states:
          "A person arrested without warrant shall, on being charged with an offence, be brought, as soon as practicable, before a judge of the District Court having jurisdiction to deal with the offence concerned."

    This timescale envisages that an arrested person will be brought 'as soon as practicable' before the Court, and it has been held to apply to the Special Criminal Court. Such an approach was taken in Birney v D.P.P., [2006] IECCA 58 (Court of Appeal, 12th May, 2006), where that Court held, at p.9:-
          "By virtue of s.47, however, the applicants in this case were brought before the Special Criminal Court “in lieu” of being brought before the District Court. But that is the only alteration affected by s.47, which appears to me to leave all other rights and obligations that follow upon an arrest intact. The right of the arrested person, and the obligation of the Gardaí, is that he be brought before the relevant Court “as soon as practicable”. It is clearly not practicable to bring a person before a court until that Court is sitting and the Special Criminal Court was not sitting in the small hours of the 11/12th October, 2002."

    This decision relates to a situation on an arrest. However, in this case the circumstances are different. At issue is a re-arrest.

    15. Re-Arrest
    As the applicant was re-arrested it is necessary to consider the relevant law. It was submitted on behalf of the applicant that s.30(A) of the Offences Against the State Act, 1939 to 1998 applies and that pursuant to that section a re-arrest is prohibited, unless, pursuant to s.30(A)(3), the re-arrest is for the purpose of charging him with the offence 'forthwith'. It was submitted that the word 'láithreach' is used in the first official language in s.30(A)(3) of the Offences Against the State Act, 1939 to 1998, which should be interpreted as 'immediately', It was submitted that the Oireachtas intended that an accused person released without charge following detention on suspicion of having committed a membership offence might only be re-arrested for the same offence for the purpose of being charged with that offence immediately. It was submitted that the applicant was detained for a period of fifteen hours and twenty minutes from his re-arrest under s.4 until being charged, and that this cannot be construed as 'immediately'.

    16. Section 30A addresses the situation of a re-arrest. It was inserted by s.11 of the Offences Against the State (Amendment) Act, 1998, and is set out in detail previously in this judgment. Section 30A(1) commences with a general prohibition of re-arrest. Thus, "where a person arrested on suspicion of having committed an offence is detained pursuant to section 30 of this Act and is released without any charge having been made against him he shall not - be re-arrested for the same offence …" S.30A(1) then provides for an exception in the form of a warrant issued by a judge - which does not apply to this case. This exception in s.30A is clearly a protection against further detention, except as specifically provided for in s.30A. The intention manifest in s.30A is that a person on a re-arrest in the circumstances of s.30A may not be detained as if it were a first arrest under s.30.

    This intent is also manifest in s.30A(3). Section 30A(3) sets out a further exception to the prohibition on a re-arrest in s.30A(1). It enables the arrest of such a person for the purpose of charging him 'forthwith'. It thus continues the policy of protecting such a person against detention as if it were an initial s.30 arrest.

    Thus it is necessary to consider the facts to determine the relevant law.

    17. The Facts
    The applicant was arrested on 6th April, 2004 at 8.45 pm under s.30 of the Offences Against the State Act, 1939, as amended, on suspicion of having committed the offence of membership of an unlawful organisation on the 6th of April, 2004 under s.21 of the Offences Against the State Act, 1939, as amended. He was brought to Balbriggan Garda Station under s.30 of the Offences Against the State Act, 1939 as amended. At 8.20 pm on the 7th April, 2004 Chief Inspector Finnegan authorised the extension of the applicant's detention for a period of 24 hours to commence at the expiry of his first period of detention. At 5.25 pm on the 8th April, 2004 a direction was received from the Director of Public Prosecutions that the applicant be charged with membership of an unlawful organisation. The applicant was neither charged nor released at that time. At 8.25 pm on 8th April, 2004 the applicant was released from his detention under s.30 of the Offences Against the State Act, 1939, as amended. Immediately at 8.35 pm the applicant was re-arrested at Tankardstown, Balbriggan under s.4 of the Criminal Law Act, 1997, for the offence of membership of an unlawful organisation under s.21 of the Offences Against the State Act, 1939, as amended. The applicant was cautioned and brought to Balbriggan Garda Station and detained. At 8.51 pm on the 8th April, 2004 the applicant was informed that he would be brought to the next sitting of the Special Criminal Court and charged there with the offence.

    Attempts had been made to convene a Special Criminal Court. It was Holy Thursday. At 8.33 p.m. on that day the Garda Síochána had become aware that the Special Criminal Court had been convened to sit at 12 noon on 9th April, 2004, i.e. Good Friday. The applicant was told he would be brought before the sitting of the Special Criminal Court at 12 noon the next day, i.e. 9th April, 2004, being Good Friday. On the 9th April, 2004 the applicant was brought before the Special Criminal Court where he was charged and remanded in custody.

    Thus, the applicant was originally arrested under s.30 of the Offences Against the State Act, 1939, as amended, on 6th April, 2004 at 8.45 pm. He was then re-arrested under s.4 of the Criminal Law Act, 1997 at 8.35 p.m. on the 8th April, 2004.

    18. Section 15(2) of the Criminal Justice Act, 1951 would have required that he be brought before the Special Criminal Court as soon as practicable. As to what is practicable will depend upon all the circumstances of a case.
    The learned trial judge held:
          "Again having regard to the time sequence, the totality of circumstances, the absence of any evidence of mala fides or prejudice and the convening of the Special Criminal Court at 12 midday on the following Friday this Court will hold that on the facts the applicant has been brought before the Special Criminal Court within a time frame which may be interpreted as immediately and certainly as soon as practicable."

    I would agree that the time was 'as soon as practicable', however, that is not the appropriate test.

    19. The test to be applied is not 'as soon as practicable'. Rather, the correct test is whether he was brought 'forthwith', pursuant to s.30A(3) of the Offences Against the State Act, 1939, as amended.

    While s.4 of the Criminal Law Act, 1997 may be used to bring a person before the Special Criminal Court, if that arrest is a re-arrest it is a subject to the specific statutory requirement relating to a re-arrest as set out in s.30A of the Offences Against the State Act, 1939, as amended.

    Section 30A provides for the situation of a re-arrest after an arrest and detention under the Offence Against the State Act, 1939, as amended. Thus, even though it was an arrest under s.4 of the Criminal Justice Act, 1997, the requirements of s.30A(3), as inserted by s.11 of the Offences Against the State Act, 1998, apply. For, while the general law may be exercised to bring a person before the Special Criminal Court, when safeguards are established by the specific law of the Offences Against the State Acts, they must be met.

    20. Therefore it is necessary to consider whether the applicant was charged, pursuant to s.30A(3), that is 'forthwith'. The word "forthwith" is not a technical term, or a term of art. It should be given its common and usual meaning. It is defined in the Concise Oxford Dictionary as: "immediately; without delay". Thus the law requires that a person in the position of the applicant be charged immediately, without pause or delay. The term 'forthwith' requires immediate action. This is in contrast to the pragmatic requirement in the term 'as soon as practicable'. Counsel referred to an amendment to the law, but any such amendment may not be used to construe the law in issue.

    21. Was the applicant charged immediately? The answer has to be in the negative. He was arrested at 8.35 pm on 8th April, 2004 and charged before the Special Criminal Court shortly after 12.00 noon on 9th April, 2004. In all the circumstances this was 'as soon as practicable', but that is not the requirement of the law. The law required that he be charged "forthwith", and that was not done. Therefore his detention prior to charging was unlawful

    22. For the reasons given I would allow the appeal, quash the decision of the Special Criminal Court of the 14th December, 2004, and declare that the Special Criminal Court has no jurisdiction to try the applicant on the charge.

    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 IR 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.
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