A High Court judge has ruled that five Dublin men jailed for being members of an illegal organisation, namely the IRA, are lawfully detained.
The five are Thomas Gilson (aged 26), of Bawnlea Avenue, Jobstown, Tallaght; Patrick Brennan (aged 43), of Lindisfarne Avenue, Clondalkin; Sean O'Donnell (aged 34), of Castle Drive, Sandymount; John Troy (aged 27), of Donard Ave and Stephen Birney (aged 33), of Conquerhill Road, Clontarf.
In February 2005 they were jailed at the Special Criminal Court after being found guilty for membership of an illegal organisation styling itself the Irish Republican Army, otherwise Oglaigh na hEireann, otherwise the IRA on October 11, 2002.
They had sought an inquiry into the legality of their detention on the grounds of a finding made by the Supreme Court which stated that the failure to charge Co Louth man "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 (SCC) the following day was unlawful.
Last month the Supreme Court ruled that Barry O'Brien (aged 34), Mountain View Court, Dundalk was unlawfully before the SCC and it did not have jurisdiction to try him.
The court found that the detention was unlawful because Mr O'Brien was not 'charged forthwith'.
Lawyers for the five said that in October 2002 all five men were detained for periods of between 13 and 15 hours before they were brought before and charged at the SCC, and that as a result of the Supreme Court's ruling their detention was unlawful.
However today at the High Court Mr Justice Iarfhlaith Ó Neill ruled that the men's detention is legal.
In his judgment Mr Justice Ó Neill said that he was satisfied that the five men's circumstances are identical to that of Mr O'Brien, and that the Special Criminal Court did not have jurisdiction to try them.
However the Judge said that jurisdiction was "not the real issue".
The fundamental difference, the Judge said, was that Mr O'Brien had raised the jurisdictional issue from the "earliest opportunity" and had taken judicial review proceedings.
This was not the case with the five men, who were tried and subsequently convicted.
While they had raised the issue of jurisdiction the Judge said because they had not done so at the earliest opportunity" and could not now seek to rely on that point. On that basis the Judge ruled that their detention is lawful.
In October 2005 all five were arrested after an off duty detective noticed suspicious activity around two cars and a van.
During their trial the SCC heard gardai recovered a large quantity of Sinn Féin posters, including ones for Sinn Féin TD Mr Aengus O Snodaigh, from a car in which they also found a stun gun, a CS gas canister, a blue flashing light and a beacon.
Gardaí found two pick axe handles, a lump hammer, three portable radios, cable ties, balaclavas and fake Garda jacket in the van. Four of the men were found seated on the floor of the van and two of them, Gilson and O'Donnell, were dressed in fake Garda uniforms, the trial was told.
The court heard that all the men were members of the Provisional IRA, were attached to that organisation's Dublin Brigade and were answerable directly to its leadership. All five are due to be released in January 2008.