Judgement reserved in Louth man's appeal against IRA case conviction

The Court of Criminal Appeal has today reserved judgement in the case of a Co Louth man appealing against his conviction for membership of the IRA.

Barry O'Brien (aged 39), a father of three from Mountain Court, Dundalk, was convicted in December 2010 of membership of an illegal organisation styling itself the Irish Republican Army, otherwise Oglaigh na hÉireann, otherwise the IRA on April 6, 2004.

He was jailed for three years and nine months by the Special Criminal Court in February last year.

During the three-day trial, the court heard from Chief Superintendent Patrick Magee, who said in evidence it was his “strong belief” that O' Brien was an IRA member.

The court found that this evidence was corroborated by certain answers given by O’Brien in interview with gardaí.

Counsel for the applicant, Ms Deirdre Murphy SC, told the court that her client was appealing against his conviction on the basis that the warrant issued for his arrest was invalid.

She said the warrant was invalid because it was issued by the Superintendant in charge of the investigation, an issue that was raised both at the trial and in judicial review proceedings.

In February this year, the Supreme Court declared that section 29 (1) of the Offences Against the State Act (as inserted by section 5 of the Criminal Law Act 1976) was repugnant to the Constitution, as it permitted a search of a person’s home on foot of a warrant not issued by an independent person.

The court found that Article 40.5 of the Constitution expressly provides that a person’s home is inviolable and shall not be forcibly entered except in accordance with the law.

The court made its ruling in the case of Ali Charaf Damache, where a search warrant had been issued by a member of the garda team investigating the matter. Section 29 has been routinely used in the past by gardaí to search the homes of suspects in terrorist cases.

Damache was living in Waterford when he was arrested as a suspect in an alleged conspiracy to murder Swedish cartoonist Lars Vilks over his drawing of the prophet Muhammad.

Ms Murphy said it was clear that gardai who entered O’Brien’s property on the morning of April 6th 2004 on foot of the warrant were trespassers and submitted that O’Brien’s arrest following on from this entry was unlawful.

She said that gardai arrested her client after a search of his premises yielded a badhran, books of raffle tickets for “POWs”, walkie-talkies and approximately €6,000 in cash. O'Brien had denied these were for IRA fund-raising purposes.

Mr Seamus Clarke SC, for the State, submitted that that gardai who went to Mr O’Brien’ s home had the “dual purpose” of both arresting him and giving effect to the Section 29 warrant and were not there for the sole purpose of executing the warrant.

Mr Justice Adrian Hardiman, sitting with Mr Justice Michael Moriarty and Mr Justice Gerard Hogan, said the court would reserve its judgement until a later date.