The High Court has ruled that five men serving prison sentences could not use an Article 40 inquiry to challenge their detention on the basis that the Special Criminal Court lacked jurisdiction to try them. Mr Justice O’Neill said the jurisdictional defect was fundamental, but held that the men had lost the ability to rely on it because they did not raise it when first brought before the court.
The applicants were detained in Portlaoise Prison under warrants directing that they serve four-year sentences imposed from 21 February 2005, with the final two months suspended. They were convicted after a 25-day trial before the Special Criminal Court. The judge recorded that the warrants were valid on their face.
The men argued that their arrests and detention followed the same circumstances as those in the case of O’Brien v the Special Criminal Court and the DPP. The Supreme Court had ruled on 24 October 2007 that the Special Criminal Court lacked jurisdiction to try O’Brien. The applicants said that ruling meant their own detention was unlawful.
The State argued that an Article 40 inquiry was the wrong procedure, and that the applicants should instead seek judicial review or apply to the Court of Criminal Appeal for a certificate under section 29 of the Criminal Appeal Act 1924. Justice O’Neill rejected that objection. He said an urgent Article 40 inquiry was appropriate where there was a real concern about the legality of detention, and that the alternative routes risked delay. He also found the applicants’ circumstances materially identical to O’Brien’s and concluded that the Special Criminal Court had lacked jurisdiction to try them.
The decisive issue was whether the applicants could still raise that defect. They had challenged jurisdiction at arraignment, shortly before trial, but had not raised it when first brought before the Special Criminal Court. Justice O’Neill held that the Court of Criminal Appeal’s decision in DPP v Kehoe bound him: a jurisdictional point not taken at the first appearance was spent. He considered DPP v Gilligan, which described that rule as potentially overstated and said an accused should explain a delay, but found the applicants had neither raised the point at the earliest opportunity nor explained why they had not.
The court therefore concluded that the applicants could not rely on the jurisdictional defect to attack their detention and held their detention lawful. The judgment did not order their release.