The High Court has refused Barry O’Brien’s application to quash the Special Criminal Court’s refusal to adjourn his trial and to prevent the trial from proceeding while related legal challenges were determined.
O’Brien was charged with membership of an unlawful organisation under section 21 of the Offences Against the State Act 1939 and pleaded not guilty. His trial began on 27 January 2009 but was adjourned after late disclosure of documents. The following day, his counsel sought an interpretation of a provision allowing evidence from a Garda Chief Superintendent that the accused was a member of an unlawful organisation. The Special Criminal Court considered that request premature because no evidence had yet been given.
The defence also asked to adjourn the trial pending challenges to the provision in D.P.P. v. Redmond and D.P.P. v. Sean Connolly. The Special Criminal Court refused a further adjournment, while allowing a short pause until 3 February so O’Brien could seek judicial review. He also began separate proceedings challenging the provision and the statutory process for issuing the search warrant used at his home.
O’Brien argued that the statutory provision made the Chief Superintendent’s statement itself evidence, leaving no meaningful scope for cross-examination. He also challenged the warrant process on the basis that it allowed an investigator to issue a warrant in an investigation in which that person was involved. The Director of Public Prosecutions argued that judicial review during a criminal trial was generally inappropriate and that the adjournment request had been premature.
O’Neill J. held that judicial review during a trial was permitted only in exceptional circumstances, which were absent here. The challenge to the evidence provision could have been raised before the trial, and the explanation that the point had occurred to counsel only after the trial began was inadequate. The judge also said the outcomes in Redmond and Connolly would not resolve O’Brien’s distinct construction argument.
Considering the substance of that argument, the judge rejected it as contrary to established authority. He said the evidence under the provision was the content of the Chief Superintendent’s belief, which could be tested by cross-examination. The judge found no realistic basis for that constitutional challenge.
The warrant challenge had not been raised during the criminal trial and was not pressed in these proceedings. The judge did not determine its constitutionality, stating that the issue was immaterial in the circumstances. He concluded that the Special Criminal Court had acted within its discretion in refusing the adjournment, particularly as no evidence had yet been given. All relief was refused. The judgment did not determine O’Brien’s guilt or the separate constitutional proceedings.