The Supreme Court allowed Barry O’Brien’s appeal against a decision rejecting his challenge to the Special Criminal Court’s jurisdiction to try him on an IRA membership charge. It held that he had not been charged “forthwith” after being re-arrested, and that he was therefore not lawfully brought before the Special Criminal Court.
O’Brien had first been arrested under a warrant on 6 April 2004 and detained at Balbriggan Garda Station under section 30 of the Offences against the State Act, 1939, on suspicion of membership of an unlawful organisation. The detention was due to end at 10.30pm on 8 April.
The Director of Public Prosecutions directed that O’Brien be brought before the Special Criminal Court to be charged. Because a special sitting had to be arranged for Good Friday, a detective superintendent instructed that O’Brien be released from section 30 detention at 8.35pm on Holy Thursday and immediately re-arrested under section 4 of the Criminal Law Act, 1997. He was told he would be brought before the Special Criminal Court the following day. He was charged there at 11.50am on 9 April.
O’Brien argued that the Special Criminal Court could hear his case only if he had been brought before it through arrest procedures set out in the Offences against the State Acts. The Supreme Court rejected that argument. It held that a person could be lawfully arrested under section 4 of the 1997 Act and brought before the Special Criminal Court following a direction under section 47 of the 1939 Act.
The court accepted, however, that section 30A(3) of the 1939 Act applied to the re-arrest. That provision allowed a person released from section 30 detention to be re-arrested for the same offence for the purpose of charging him “forthwith”. The court distinguished that requirement from bringing someone before a court “as soon as practicable”: “forthwith” required an immediate charge. Telling O’Brien that he would be charged the next day did not itself amount to charging him.
The court allowed the appeal and substituted an order quashing the Special Criminal Court’s 14 December 2004 decision rejecting the jurisdiction challenge. It also said a declaration could be made, if considered necessary, that the Special Criminal Court did not then have jurisdiction to try O’Brien on the charge. The ruling concerned the court’s jurisdiction at that time; the judgment does not state the outcome of the underlying charge.