The Court of Appeal ruled that the Special Criminal Court was wrong to interpret the law as barring A.B.’s arrest in 2013 because he had been arrested without charge in 1989 on suspicion of unlawful organisation membership. The appeal court’s answer concerned a legal question referred by the Director of Public Prosecutions after A.B.’s acquittal. By law, that determination was without prejudice to the acquittal.
A.B. was tried on a charge of IRA membership on 29 March 2013, contrary to section 21 of the Offences Against the State Act 1939, as amended. He had been arrested and detained in 1989 on suspicion of membership on 3 March that year, but was released without charge. He was arrested again in 2013 without a District Court warrant.
The Special Criminal Court held that section 30A of the 1939 Act prohibited the later arrest without such a warrant. It treated membership as a continuing offence and followed its earlier ruling in DPP v Vincent Banks, where it had found that two arrests about three months apart concerned the same offence. The Special Criminal Court concluded that events after A.B.’s arrest were inadmissible.
The Court of Appeal said membership has a continuing character, but that continuity does not mean permanence. It distinguished the three-month interval in Banks from the 24 years between A.B.’s arrests. The two cases shared a charge description and a prior arrest on a charge in the same terms, but the Special Criminal Court was wrong to consider them “on all fours”.
The appeal court said whether a later suspicion concerns the same offence as an earlier one is a question of fact. A court must assess whether the circumstances, facts or events underlying the later arrest had occurred or come about by the time of the earlier arrest; the answer cannot be presumed merely because membership is continuing.
The court answered the referred question by finding that the Special Criminal Court was not correct in its interpretation of section 30A. Its ruling decided that question of law only and did not set aside or otherwise affect A.B.’s acquittal.