The Supreme Court has dismissed Kevin Braney’s challenge to the constitutionality and Convention compatibility of detention powers under the Offences Against the State Act 1939. The appeal concerned the power of a Chief Superintendent to extend an initial 24-hour detention by a further 24 hours without requiring the Garda officer in charge of the station to separately approve it.
Braney was convicted by the Special Criminal Court in May 2018 of membership of an unlawful organisation styling itself the IRA or Óglaigh na hÉireann. He received a four-and-a-half-year prison sentence. He challenged the law through judicial review, arguing that the detention rules were invalid and that evidence drawn from his failure to answer questions after the extension should not have been admitted if the extension was unlawful. The High Court rejected his claims, and the Supreme Court granted leave to appeal.
The Supreme Court held that the safeguards for detention under section 30 of the 1939 Act were constitutionally adequate. It noted that an arrest must be grounded in reasonable suspicion and that detention must end if that suspicion dissipates. Detainees also have access to legal advice, custody is recorded and supervised, and a detained person can ask the High Court to review the lawfulness of detention under Article 40.4 of the Constitution.
The court rejected Braney’s comparison between extending detention and authorising a search of a home. It said a home search is a one-off intrusion that requires safeguards before it takes place, while detention is an ongoing investigation during which legal protections apply. It also found that different procedures for different categories of offences did not amount to unconstitutional inequality or discrimination under the Convention.
The court declined to revisit its earlier decision in *The People (DPP) v Quilligan and O’Reilly*, which had upheld section 30. It said no compelling argument had been made to show that the earlier ruling was wrong.
The appeal concerned the validity of the statutory scheme; the Supreme Court did not overturn Braney’s conviction. It dismissed his claim that section 30 contravened the Constitution and the European Convention on Human Rights.