Special Criminal Court was not correct in its interpretation of a statute finds Court of Appeal

Special Criminal Court was not correct in its interpretation of a statute finds Court of Appeal

The non-jury Special Criminal Court was not correct in its interpretation of a statute concerning the rearrest of IRA suspects, the Court of Appeal has found.

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 earlier this year, Mr Justice Paul Butler, presiding, said the arrests of Mr Braney and a number of his co-accused were 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 suspision of alleged membership of an unlawful organisation in 1989 but was never charged.

As a result, his second arrest on suspicion for the same offence, 24 years later in March 2013, was held to have been unlawful.

The Director of Public Prosecutions, through Tara Burns SC and Vincent Heneghan BL, had asked whether the non-jury court was correct in its interpretation of the relevant statute.

Determination of the question under section 34 of the Criminal Procedure Act 1976 was “without prejudice” to Mr Braney's acquittal and use of his name was required simply to ground the appeal.

In its answer to the question delivered yesterday, the Court of Appeal held that the non-jury court was “not correct” in its interpretation of section 30 of the Offences Against the State Act as amended.

The Special Criminal Court had held that since the offence of membership necessarily connoted continued association or membership over a period of time, then it was essentially the same offence, the judgment stated.

The non-jury court had been following its decision in the case of Vincent Banks - who had been arrested twice in three months without the sanction of a District Court judge on the second occasion – in ruling that the later arrest of Mr Braney was also unlawful.

However, President of the Court of Appeal Mr Justice Seán Ryan said yesterday that a 24-year gap between arrests was very different to a time period of three months and the legal issues in Mr Banks' and Mr Braney's cases were not identical.

“It cannot be presumed simply because membership is by its nature a continuing condition or state that the offence alleged is the same.”

Mr Justice Ryan said it was clear that the offence of membership carried with it “the notion of continuity, but continuity is different from permanence”.

The offence of which Mr Braney was suspected in 1989 “concerned a state of affairs in which he was allegedly involved in at that time”.

“It seems almost too obvious to say that the charges are different because of the long lapse of time.”

He said the concept of a continuing state of affairs representing membership was different from the same conditions being permanent.

It was legitimate for the Special Criminal Court to infer in the 'Banks' case that the period of three months was insufficient to distinguish between the cases or charges but the much longer period of years was “a wholly different matter”.

Mr Justice Ryan said it was “a question of fact” whether the suspected membership on the previous occasion was the same offence for which the person had been subsequently charged.

One way of approaching the issue, the judgment suggested, was to examine whether the circumstances, facts or events that gave rise to the suspicion on which the later arrest was based had happened or come about at the time of the previous arrest.

That was a matter of evaluation and judgment for the court, the judgment stated.

Mr Justice Ryan, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, said the Special Criminal Court's interpretation of the relevant statute was “not correct”.