The Supreme Court has halted the trial of a Co Louth man on a charge of membership of an illegal organisation.
The three-judge court ruled today that the failure to charge Barry O'Brien "immediately" after his rearrest on April 8, 2004, meant his subsequent detention for more than 15 hours prior to his being charged before the non-jury Special Criminal Court the following day, Good Friday 2004, was unlawful.
It followed that Mr O'Brien was unlawfully before the SCC and it did not have jurisdiction to try him, the court held.
On that basis, the court allowed Mr O'Brien's appeal against the High Court's rejection of his claims and overturned the decision of the SCC that he was lawfully brought before it.
Mr O'Brien (aged 34) Mountain Court, Dundalk, Co Louth, had brought judicial review proceedings against the Special Criminal Court and the Director of Public Prosecutions aimed at quashing the SCC's decision of December 14, 2005, that he was lawfully before it on a charge of membership of an unlawful organisation on April 6, 2004.
The key issue in the appeal was whether Mr O'Brien was lawfully before the SCC.
Mr O'Brien was arrested about 8.45pm on April 6, 2004 at his home under Section 30 of the Offences Against the State Act on suspicion of membership of the IRA, brought to Balbriggan Garda station and detained there at 10.30pm.
At 8.20pm on April 7, 2004, his detention was extended by 24 hours to commence at the end of the first period of detention.
At 5.25pm on April 8, he was informed by a Garda the DPP had directed he be charged with membership of an unlawful organisation. However, at that time, he was neither charged with that offence nor released.
Instead, he was released three hours later, immediately rearrested under section 4 of the Criminal Law Act 1997, at Tankardstown, Balbriggan, for the offence of membership of an unlawful organisation and returned to Balbriggan Garda station where he was detained.
Mr O'Brien's lawyers argued no legal basis for that detention was noted in the custody record. He was told at 8.51pm by another Garda that he would be brought before the next sitting of the SCC and charged there.
The next day, Good Friday, he was brought before the court just after 12 noon and charged in the confines of the courthouse.
At the time he was charged, he had been held for some 18-and-a-half hours following his notification that the DPP had directed he be charged (5.25 pm on April 8).
Yesterday, Ms Justice Susan Denham, in her judgment, ruled that a person may be lawfully brought before the SCC in accordance with general law and not necessarily the specific law of the Offences Against the State Act.
She agreed with the High Court's decision that the DPP's direction that Mr O'Brien be brought before the SCC to be charged was sufficient to invoke the jurisdiction of the SCC.
However, the judge said, Mr O'Brien was originally arrested under Section 30 of the OASA on April 6, 2004 at 8.45pm and re-arrested under Section 4 of the Criminal Law Act 1997 at 8.35pm on April 8, 2004.
The test was whether he was brought before the SCC "forthwith", as required under Section 30 of the OASA, she said.
While Section 4 may be used to bring a person before the SCC, if that arrest is a re-arrest as it was here, it was subject to the re-arrest requirements of Section 30 of the OASA.
That was why the test was that Mr O'Brien be brought "forthwith" before the SCC.
The word "forthwith" was "not a technical term or a term of art", she said. It was defined in the Concise Oxford Dictionary as "immediately; without delay".
Thus the law required he be charged immediately and without delay. That had not happened.
Mr O'Brien was arrested at 8.35pm on April 8, 2004, and brought before the SCC at 12 noon on April 9. This was not immediate and therefore his detention prior to charging was unlawful.
In a separate judgment, Mr Justice Nial Fennelly agreed the detention was unlawful because Mr O'Brien was not charged forthwith and also noted that charges could have been preferred in the garda station.
The Chief Justice, Mr Justice John Murray, who presided at the court, agreed with the court's judgments.