The CCA found the Special Criminal court did not have the jurisdiction to try them because they were not charged “forthwith” after they were arrested.
In 2005 Ciaran O’Dwyer, 53, of Castletroy View, Limerick; John Murphy, 28, of Kilbarry, Old Mallow Road, Cork; Ultan Larkin, 37, of Farranshone, Limerick: Gerard Varian, 49, of Fairhill, Cork; and Aidan O’Driscoll, 29, of Ballyvolane, Cork, were all convicted of membership of an illegal organisation, the Real IRA, on December 15, 2003.
O’Dwyer was jailed for five years and nine months; Larkin for four years; Varian for three years; Murphy for four years and O’Driscoll for three years in the Special Criminal Court (SCC).
Yesterday the three-judge Court of Criminal Appeal, consisting of Mr Justice Nicholas Kearns, presiding, sitting with Mr Justice Declan Budd and Mr Justice Daniel Herbert, quashed the convictions.
Four of the five men had been on bail pending the outcome of the appeal. Only one, Aidan O’Driscoll, had been in custody.
In a motion to the court lawyers for all five men had claimed their convictions should be quashed because the failure to charge them after they were held for more than 12 hours before the non-jury SCC was unlawful and the court did not have jurisdiction to try them. Counsel for the DPP had argued that all five were lawfully before the SCC.
However, Mr Justice Nicholas Kearns said in his judgment that the CCA was satisfied that the five men had not been lawfully brought before the Special Criminal Court and charged “forthwith” following their arrests on December 13, 2003.
The judge said the CCA’s “hands were tied” in light of the Supreme Court’s ruling in the O’Brien case and therefore it had “no option” other than to quash the convictions.
Mr Justice Kearns said there were a number of similarities between the cases of five men before the CCA and that of O’Brien.
The judge pointed to the fact that the periods of detention between arrest and the time both the five men and Mr O’Brien were brought before the SCC, were “virtually identical”.
He said that the “loophole” highlighted by the O’Brien case had been closed in the 2006 Criminal Justice Act.
However, that change did not apply to these particular five cases.