THE COURT of Criminal Appeal has quashed the convictions by the non-jury Special Criminal Court of five Munster men on charges of membership of the Real IRA.
The three appeal court judges ruled yesterday that the Special Criminal Court did not have the jurisdiction to try the five because they were not charged “forthwith” or “immediately” after their arrests and brought before the court, as required under the provisions of section 30 of the Offences Against the State Act.
Ciarán O’Dwyer (53), Castletroy View, Limerick; John Murphy (28), Kilbarry, Old Mallow Road, Cork; Ultan Larkin (37), Farranshone, Limerick; Gerard Varian (49), Fairhill, Cork; and Aidan O’Driscoll (29), Ballyvolane, Cork, were all convicted after a 20-day trial at the Special Criminal Court in 2005 of membership of the Real IRA, on December 15th, 2003.
Mr O’Dwyer was jailed for five years and nine months; Mr Larkin for four years; Mr Varian for three years; Mr Murphy for four years; and Mr O’Driscoll for three years.
Four of the five were subsequently granted bail pending the outcome of the appeal but O’Driscoll remained in custody.
The appeal court’s decision was delivered to a packed courtroom yesterday and was followed by cheers.
The three judges at the Court of Criminal Appeal – Mr Justice Nicholas Kearns, presiding, with Mr Justice Declan Budd and Mr Justice Daniel Herbert – quashed the convictions imposed on all five men.
The decision was made in light of a Supreme Court decision last October in a similar case – that of Co Louth man Barry O’Brien.
Lawyers for all five men had argued their convictions should be quashed because of the failure to charge them “forthwith” before the Special Criminal Court.
The five were brought before that court after being detained by gardaí for more than 12 hours.
It was submitted that the Supreme Court judgment in the O’Brien case also applied to the five appellants.
The Supreme Court had overturned the Special Criminal Court’s decision of December 14th, 2005, that Mr O’Brien, Mountain View Court, Dundalk, Co Louth, was lawfully before it on a charge of membership of an unlawful organisation on April 6th, 2004.
The Supreme Court ruled that Mr O’Brien had not been brought before the special court “forthwith” and it therefore did not have the jurisdiction to try him.
Mr Justice Kearns yesterday said the Court of Criminal Appeal was satisfied that the five men had not been lawfully brought before the Special Criminal Court and charged “forthwith” following their arrests on December 13th, 2003.
He said the appeal court’s hands were tied in light of the O’Brien decision and it had “no option” other than to quash the convictions imposed on all five.
There were a number of similarities between the cases of the five men before the appeal court and that of Mr O’Brien, he added.
The periods of detention and the time which elapsed between their arrest and being brought before the special court were “virtually identical” to that in the O’Brien case.
The judge said the “loophole” highlighted by the O’Brien case had been closed in the 2006 Criminal Justice Act but that change did not apply to these particular five cases.