The Court of Appeal has dismissed Jim Smyth’s appeal against his conviction for membership of an unlawful organisation, rejecting his argument that Gardaí needed an arrest warrant before arresting him in November 2015.
Smyth was convicted by the Special Criminal Court on 1 June 2017 after a seven-day trial and sentenced to three years in prison on 26 June 2017. The appeal proceeded on one ground: whether the trial court had erred in finding that section 30A of the Offences Against the State Act 1939 did not prevent his arrest without a warrant in the circumstances.
Smyth had previously been arrested in 1992, 2009 and January 2015 on suspicion of IRA membership, but was released without charge each time. His counsel argued that membership is a continuing offence and that the November 2015 arrest was for the same offence as the January arrest. On that basis, counsel submitted, section 30A required a warrant.
The Special Criminal Court had found the arrests arose from separate circumstances. It accepted evidence from Detective Chief Superintendent Thomas Maguire that the confidential information behind the November operation was unrelated to the January arrest. The trial court also noted that Smyth appeared unexpectedly during a search operation and that the arresting officer relied on the information available and the circumstances at the scene.
The Court of Appeal said the trial court had fully considered the issue and applied the test in an earlier decision, *DPP v A.B.* That test treats whether later-suspected membership is the same offence as a question of fact, to be assessed by examining whether the circumstances behind the later arrest had arisen by the time of the earlier one.
The appeal court said the January arrest followed an unsolicited report to Monaghan Gardaí and was made by local officers without a specific operation underway. In November, Gardaí were conducting an operation to search lands under warrants; the judgment said there had been no advance decision to arrest Smyth. The surveillance team encountered him unexpectedly at a location under surveillance and due to be searched.
The court also rejected the argument that Garda privilege over the confidential information prevented effective scrutiny of the evidence. It said the circumstances of the January and November arrests could be tested in cross-examination and were entirely different. The court concluded there was evidence supporting the trial court’s finding that the arrests were for separate offences, dismissed the sole ground of appeal and dismissed the appeal. The conviction and sentence therefore remain undisturbed by this appeal.