The Supreme Court has ruled that Barry O’Brien was not charged “forthwith” after his re-arrest and declared that the Special Criminal Court had no jurisdiction to try him on a membership charge.
In a judgment delivered by Denham J. on 24 October 2007, the court allowed O’Brien’s appeal from a 2005 High Court decision declining his application for judicial review. It quashed the Special Criminal Court’s decision of 14 December 2004 that he was lawfully before it, and declared that the court had no jurisdiction to try him on the charge.
O’Brien faced trial on a charge of membership of an unlawful organisation on 6 April 2004, under section 21 of the Offences Against the State Act. He argued that the Special Criminal Court could not try him because he had not been lawfully brought before it. His challenge concerned his arrest under section 4 of the Criminal Law Act 1997 after an earlier detention under section 30 of the 1939 Act.
The Supreme Court rejected his broader argument that a person could be brought before the Special Criminal Court only through powers in the Offences Against the State Acts. It held that “lawfully brought” had a general meaning and that the general arrest power could be used. The court also agreed that the Director of Public Prosecutions’ direction was sufficient to invoke the Special Criminal Court’s jurisdiction.
But because this was a re-arrest after detention under section 30 and release without charge, the court held that the safeguards in section 30A applied. That provision allowed a re-arrest for the purpose of charging the person “forthwith”. The court said this meant immediately, without pause or delay, rather than merely as soon as practicable.
O’Brien was released from section 30 detention at 8.25pm on 8 April 2004 and re-arrested ten minutes later under section 4. He was told he would be brought before the Special Criminal Court, which had been convened for noon the next day, Good Friday. He was charged shortly after noon on 9 April.
The Supreme Court accepted that the timing was as soon as practicable in the circumstances, but held that this did not meet the distinct “forthwith” requirement. It concluded that his detention before charging was unlawful. The ruling resolved the judicial review appeal and jurisdiction question; the judgment did not determine whether O’Brien was guilty of the charge.