A convicted murderer has lost his Supreme Court challenge to the validity of a law under which he was arrested and detained on suspicion of IRA membership.
Dubliner Kevin Braney was convicted by the non-jury Special Criminal Court in May 2018 of membership of an unlawful organisation, the IRA, on August 2nd, 2017.
A year later, he was convicted by the SCC of the murder of Peter Butterly (35), a dissident republican, who was chased and shot dead outside the Huntsman Inn, Gormanston, Co Meath, on March 6th, 2013. He was jailed for life.
Three other men had previously received life sentences for the murder.
Braney (46), with an address at Glenshane Crescent, Tallaght, Dublin 24, brought a High Court challenge to the validity of section 30.3 of the Offences Against the State Act 1939, the police power on which he was arrested and questioned over suspected IRA membership on August 2nd, 2017.
Section 30.3 authorises gardaí to arrest a suspect on reasonable suspicion of certain serious scheduled offences under the 1939 Act.
Under general arrest powers applying since the Criminal Justice Act 1984 to offences carrying a possible penalty of five years imprisonment or more, an arrested person’s detention for questioning in a Garda station must also be authorised by another Garda officer in charge of the station as necessary for the investigation of an offence.
Section 30 of the 1939 Act does not require such additional authorisation. A person arrested under section 30.3 can initially be held and questioned for up to 24 hours after which their detention can be extended for another 24 hours on the authorisation of a Garda superintendent who does not have to be independent of the inquiry that led to the suspect’s arrest.
Among various arguments, Braney argued the Constitution and European Convention on Human Rights require, for a detention for investigation or questioning to be valid, a second opinion, from the garda in charge of the station as to the validity of the arrest and necessity for detention.
After the High Court rejected his challenge, he secured a further appeal to the Supreme Court. On Friday, the five-judge court unanimously dismissed his appeal.
Giving the detailed judgment, Mr Justice Peter Charleton analysed the sides' arguments, the law and other factors including the development of detention powers in the State.
Braney’s argument that, because the section 30 provisions regarding the extension of detention differ from the provisions of the 1984 Act, the section 30 provisions are unconstitutional and in breach of the ECHR is “unsound”, he found.
The only difference between the two Acts is the 1984 Act requires a second opinion of a garda in charge of the station, he said. Aside from that, there remains “a floor of rights” applicable to both forms of arrest and detention, including access to a lawyer which facilitates access to the courts.
The “overarching requirement” that someone can only be arrested on grounds of reasonable suspicion protects all people from illegitimate intrusions on their right to liberty, whether or not they are suspected of having committed a scheduled offence under the 1939 Act, he said.
It was legitimate for the Oireachtas to differentiate between offences under the 1939 Act, aimed at targeting terrorist and organised crime activities, and general offences under the 1984 Act.
Different offences require different procedures with regard to arrest and detention and, so long as the floor of rights outlined by the court applies, then no contravention of the Constitution or ECHR occurs, he held.
Rejecting as “untenable” Braney’s additional argument that safeguards in place for searches of a property should also be applied to an extension of detention, he said searches and detentions involve different infringements of rights requiring different safeguards.
A search is a “one-off” event requiring a front loading of rights while detention is an ongoing process requiring, from arrest onwards, that a floor of rights must be protected.
Braney had made out no basis for the court to depart from a 1993 Supreme Court decision, DPP v Quilligan and O’Reilly, which upheld the constitutionality of a section 30 detention, he ruled.