The Court of Criminal Appeal has quashed Barry O’Brien’s conviction for membership of an illegal organisation and directed a retrial, finding that his arrest in his home was unlawful after the legal basis for the search there was invalidated.
The court’s judgment, delivered by Hardiman J. on 2 July 2012, concerned a conviction by the Special Criminal Court on 7 December 2010. O’Brien had been found guilty of membership, on 6 April 2004, of an organisation styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann. He received a sentence of three years and nine months, effective from 1 January 2011.
The Gardaí entered O’Brien’s Dundalk home on 6 April 2004 under a search warrant issued pursuant to section 29 of the Offences against the State Act 1939. They searched the dwelling and collected several items. An officer also found €5,850 in an upstairs bedroom; O’Brien said it represented a mortgage payment. He was arrested under section 30 at 8.45pm.
At trial, the Special Criminal Court rejected the argument that the arrest was unlawful. It said the cash was not the sole cause of the arrest. The Court of Criminal Appeal noted that the trial evidence was unclear about whether the arrest came before or after the cash was found, and whether that discovery prompted it. The Garda sergeant maintained that he had intended to arrest O’Brien from the outset.
After the Supreme Court’s decision in *Damache v Director of Public Prosecutions* found section 29 unconstitutional, the appeal court held that O’Brien could rely on that ruling. His challenge had been raised at trial, he had pleaded not guilty, and the criminal proceedings remained outstanding.
The appeal court said the section 29 warrant was the only legal basis for entering and searching the home. In light of *Damache*, the Gardaí were therefore trespassers in the dwelling, despite having no reason to believe their actions were unlawful. The court held that section 30 did not authorise an arrest made inside a home where Gardaí had no authority to be present. It concluded that O’Brien’s arrest was unlawful.
The Special Criminal Court had relied in part on inferences from O’Brien’s failure to answer questions during interviews while in detention, treating that silence as capable of corroborating opinion evidence about his alleged membership. Because the conviction proceeded on the premise that he had been lawfully arrested and detained, the appeal court said it could not stand. It quashed the conviction and directed a retrial; it did not determine the retrial’s outcome.