Prosecutors appeal ruling on arrest of IRA suspects
Prosecutors have appealed a Special Criminal Court ruling on the arrest of persons suspected of IRA membership.
Kevin Braney (40), of Glenshane Crescent, Tallaght, had been among a number of men charged with membership of an illegal organisation styling itself the Irish Republican Army, otherwise Oglaigh na hEireann, otherwise the IRA on March 29th, 2013.
During his trial at the three-judge Special Criminal Court, Mr Justice Paul Butler, presiding, said the arrest of Mr Braney and a number of his co-accused was not lawful because they had previously been arrested for IRA membership and should not have been rearrested for the same offence on a different date without a warrant.
Mr Braney had been arrested on suspicion of alleged membership of an unlawful organisation in 1989 but was never charged.
As a result, his second arrest on the same offence, 24 years later in March 2013, was held by the Special Criminal Court to have been unlawful, Tara Burns SC, for the Director of Public Prosecutions told the Court of Appeal today.
Ms Burns said the non-jury court came to an “incorrect” determination because membership offences have been described by the courts in the past as being a continuing type of offence.
She said the statute does no such thing as prohibit a second arrest for a suspected membership offence.
Each arrest for a membership offence arises out of seperate and distinct offence relating to time, place and circumstance, she submitted.
“Whatever happened 24 years ago, happened then,” she said. The suspicion 24 years ago was obviously based on a specific set of circumstances and an arrest 24 years later is based on a different set of circumstances.
The only reason the Special Criminal Court determined it the way it did, Ms Burns said, was because of the argument that a membership offence is a continuing type offence.
Counsel for Braney, Bernard Condon SC, said putting a different date on alleged membership did not make it a separate offence.
If it was limited to time, Mr Condon said there was nothing stop a person being arrested every day of the week on suspicion of membership.
Mr Condon said one does not stop being a member when one goes to sleep. One joins on a particular date and remains until one leaves.
He agreed with President of the Court of Appeal Mr Justice Seán Ryan that somebody could stop being a member and rejoin.
When asked if that was two offences, Mr Condon said the difficulty was with the statute. It should not be lawful for a person to be a member but it was “not unlawful for a person to join”, Mr Condon said referring to the statute.
Mr Condon said the DPP's arguments suggest that the present situation made things “awfully inconvenient” for the gardaí.
If the present situation was unhelpful to the prosecution that was “just too bad”, he said.
Mr Condon said there had to be a balance between the Constitutional presumption of innocence and the organs of the State investigating crime.
He said the statute allowed for 72 hour detention, belief evidence to be given and for convictions to be imposed on the basis of material one could never know the source of.
“It must be strictly interpreted,” he said.
President of the Court of Appeal Mr Justice Seán Ryan, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, said the court would reserve judgment to June 26 next.