The Supreme Court dismissed five appeals by convicted prisoners who sought release under Article 40 of the Constitution, challenging the Special Criminal Court’s jurisdiction to try them. The judgment gives reasons for the court’s decision, delivered ex tempore on 5 December 2007.
The prisoners had been convicted and sentenced by the Special Criminal Court. Their applications for leave to appeal to the Court of Criminal Appeal were refused. The High Court then refused their Article 40 applications, finding that the prisoners were detained in accordance with law. The Supreme Court’s judgment, delivered by Geoghegan J. on 12 March 2008, explains his concurrence in dismissing the appeals.
The prisoners argued that they had not been lawfully brought before the Special Criminal Court and that it therefore lacked jurisdiction. Their challenge followed the Supreme Court’s decision in O’Brien v. The Special Criminal Court, where a different person charged in connection with the same events succeeded after promptly objecting that he had not been brought before the court “forthwith”.
Geoghegan J. identified procedural grounds for dismissal. The five appellants had been rearrested on the night of 12 October 2002 and brought before the Special Criminal Court the following morning. No objection was made then to how they were brought before the court. They applied for bail, consented to remands and did not raise the jurisdiction issue for about two years. They also did not seek judicial review to stop their trial.
The jurisdiction argument was later included in their grounds before the Court of Criminal Appeal, which refused leave to appeal. No application was made for a certificate permitting a further appeal under section 29 of the Courts of Justice Act 1924. Geoghegan J. concluded that the Court of Criminal Appeal’s determination was final and that the Article 40 applications could not be used to reopen the issue. He noted a possible exception for an exceptional fundamental jurisdictional defect that, through nobody’s fault, had not been raised or considered in the appeal process; he did not consider that exception applicable here.
The judge also addressed the merits in case the Article 40 applications could be entertained. He said the cases differed from O’Brien because the appellants delayed their objection, proceeded through bail and remand hearings, went to trial, and pursued the jurisdiction point through the appeal process without seeking a section 29 certificate. He considered the objection had not been taken as soon as reasonably possible. The court dismissed the appeals; the judgment did not order the prisoners’ release.