The High Court rejected Barry O’Brien’s judicial review challenge to the Special Criminal Court’s jurisdiction, ruling that he was lawfully brought before it to face a charge of membership of an unlawful organisation. The court declined the application and said the trial could proceed in accordance with law.
The case concerned the events of 6 to 9 April 2004. O’Brien was arrested at his home in Dundalk under section 30 of the Offences Against the State Act and detained at Balbriggan Garda Station. After the Director of Public Prosecutions directed that he be charged, he was released from that detention on the evening of 8 April and immediately re-arrested nearby under section 4 of the Criminal Law Act 1997. He was brought before the Special Criminal Court the next morning and charged.
O’Brien argued that the Special Criminal Court could try him only if he had been brought before it through procedures in the Offences Against the State Act. He also contended that the re-arrest could not lawfully support detention until the following day’s charge. The Special Criminal Court had earlier ruled that he was not unlawfully before it; O’Brien sought judicial review of that decision.
The High Court rejected the argument that the Offences Against the State Act was an exclusive code barring other lawful arrest powers. It found that section 4 of the 1997 Act could be used to re-arrest a person for the purpose of bringing him before the Special Criminal Court, provided there was no evidence of bad faith or abuse of process.
The court then considered whether the interval between re-arrest and charge was lawful. It noted that O’Brien was held for 15 hours and 20 minutes after the re-arrest. The evidence before the court was that efforts were made to convene the Special Criminal Court after the DPP’s direction at 5.25pm on 8 April, and that the court sat at noon the following day. The judge found no evidence that the re-arrest was used to allow further questioning or investigation, or that O’Brien was detained for interview.
Considering the timing and circumstances, the absence of evidence of bad faith or prejudice, and the effort to convene the court, the High Court held that O’Brien had been brought before it within a period that was immediately, and certainly as soon as practicable. It ruled that the DPP’s direction invoked the Special Criminal Court’s jurisdiction and precluded the District Court’s jurisdiction in the matter.
The ruling addressed whether O’Brien was lawfully before the Special Criminal Court. It did not determine his guilt or the outcome of the underlying charge.