A Dublin man accused of membership of the IRA was not unlawfully detained by gardai who searched his vehicle, the Special Criminal Court has ruled.
Derek Palmer (aged 56), of Corduff Green, Blanchardstown, has pleaded not guilty to membership of an unlawful organisation within the State styling itself the Irish Republican Army, otherwise Oglaigh na hÉireann, otherwise the IRA on July 14, 2011.
His co-accused Joe Clarke (aged 40), of Geraldstown Woods, Santry, has also pleaded not guilty to the same offence on the same date.
In an application to the non-jury court, counsel for Mr Palmer, Mr Padraig Dwyer SC, submitted that his client was unlawfully detained by gardaí who stopped and carried out a search of his vehicle on the night in question.
The court had heard evidence from Garda Enda Muldoon that he and his colleague Garda Brian Daly stopped two cars - a black Toyota Avensis and a gold Opel Vectra – which were each carrying five males in the Castleland Court area of Balbriggan at approximately 10pm on the night in question.
He said he immediately told the driver of the Opel Vectra to turn off the engine and informed him the vehicle was going to be searched under Section 30 of the Offences Against the State Act.
Garda Muldoon said the driver of the Vectra got out of the car and handed over his driver’s license, which indentified him as Derek Palmer. He said the man sitting in the front passenger seat identified himself as Joe Clarke.
He gave evidence that he found a black balaclava in a backseat footwell of the Vectra, as well two unpaired gloves and a black peaked cap after the search.
Taking to the stand as part of the application, Derek Palmer told the court that the guard who stopped his car asked him to turn off the engine before taking his keys and directing him to get out of the vehicle and stand beside a wall.
He said he did not dispute the guard told him both he and the other occupants of the car were to be searched.
Asked by Mr Dwyer if he was free to leave, Mr Palmer said that he could not leave as he asked to have his car keys back but was told he could not. Asked if he was free to walk away, Mr Palmer said he was told to stand beside the wall and not move.
Mr Palmer told counsel for the State, Mr Vincent Heneghan BL, that gardaí who gave evidence that they informed him his car was to be searched were mistaken.
He said that when he tried to walk away from the scene he had moved toward his car, which was not being searched at the time.
Asked by Mr Heneghan if he had tried to leave on foot, Mr Palmer replied: “Well, I wasn’t going to leave my car there.”
Mr Dywer submitted that gardaí had no lawful authority to detain Mr Palmer at the scene if they were not going to search him, and that the “mere fact” his client’s car was to be searched would not justify his detention.
Returning judgement on the application, presiding judge Mr Justice Paul Butler said that the court found the evidence of Mr Palmer to be “evasive and inconsistent” and that he had raised matters not related by gardaí in evidence.
He said the court was satisfied Mr Palmer was not detained other than in the course of a legal search and that no breach of his constitutional or legal rights had occurred.
The trial has adjourned for this afternoon but will continue tomorrow in front of Mr Justice Butler, sitting with Judge Margaret Heneghan and Judge William Hamill.