DPP v Barry O 'Brien

Factual and Procedural Background

This appeal arises following the Supreme Court's decision in Damache v. Director of Public Prosecutions, which declared section 29 of the Offences against the State Act 1939 (as amended) unconstitutional. The appellant was convicted by the Special Criminal Court on 7 December 2010 for membership of an illegal organisation, specifically an organisation styling itself the Irish Republican Army, contrary to section 21 of the Act of 1939, as amended. The appellant was sentenced on 23 February 2011 to three years and nine months imprisonment, effective from 1 January 2011.

Prior to conviction, a search warrant under section 29 of the Act of 1939 was issued for the appellant's private dwelling by Detective Superintendent O'Sullivan, based on belief of involvement in illegal activity related to firearms. Garda officers executed the warrant on 6 April 2004, searched the premises, and discovered various items including cash, which the appellant claimed was related to a mortgage payment. The appellant was arrested under section 30 of the Act of 1939 during the search and subsequently questioned at a Garda station with access to legal advice.

The Special Criminal Court ruled the arrest lawful and rejected the defence challenge to the constitutionality of section 29, noting it lacked jurisdiction to rule on constitutional matters. However, this ruling predated the Supreme Court's decision in Damache that section 29 was unconstitutional. The present appeal concerns the legality of the arrest and search in light of that decision.

Legal Issues Presented

1. Whether the appellant can rely on the Supreme Court's finding in Damache that section 29 of the Offences against the State Act 1939 is unconstitutional.
2. Whether the Gardaí were entitled to effect a lawful arrest under section 30 of the Act of 1939 in the appellant's private dwelling, given that post-Damache they must be objectively regarded as trespassers lacking lawful authority to be present.
3. The consequences of the unlawfulness of the search and arrest on the validity of the appellant’s detention, questioning, and ultimately his conviction.

Arguments of the Parties

Appellant's Arguments

• The appellant contended that following the Supreme Court’s ruling in Damache, the search warrant under section 29 was invalid and thus the search of his dwelling was unlawful.
• He argued that the Gardaí were trespassers when they arrested him under section 30, rendering the arrest unlawful and any subsequent detention and questioning invalid.

Respondent's Arguments

• The Director of Public Prosecutions argued that the arrest was lawful under section 30 and that the discovery of evidence prior to the arrest justified it.
• It was contended that the appellant could not rely on the decision in Damache to invalidate the search and arrest.
• The prosecution referenced prior rulings upholding the arrest and the validity of inferences drawn from the appellant’s failure to answer questions during detention.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by considering whether the appellant could rely on the Supreme Court’s decision in Damache which declared section 29 unconstitutional. Applying prior decisions in Cunningham and Kavanagh, the Court found the appellant met the criteria to benefit from this ruling as the constitutional issue had been raised at trial and the proceedings were ongoing.

Since section 29 was the sole legal basis for the search warrant, the search of the appellant’s dwelling was objectively unlawful and a breach of the constitutional right to the inviolability of the dwelling under Article 40.5. The Gardaí had no lawful authority to enter the dwelling and were thus trespassers.

The Court then examined the lawfulness of the arrest under section 30 of the Act of 1939. It found no express statutory language authorizing the Gardaí to arrest an occupant in circumstances where they were trespassers. Citing established constitutional principles and precedents, the Court concluded that an arrest made by Gardaí unlawfully present in a dwelling is itself unlawful.

Given the unlawfulness of the arrest, the appellant’s detention and subsequent questioning under section 2 of the Offences against the State (Amendment) Act 1998 were also invalid. Since the Special Criminal Court’s conviction relied significantly on inferences drawn from the appellant’s silence during this questioning, the conviction could not stand.

Holding and Implications

The Court QUASHED the appellant’s conviction imposed by the Special Criminal Court and DIRECTED a retrial.

The direct effect of this decision is to invalidate the appellant’s prior conviction due to the unlawfulness of the search and arrest following the Supreme Court’s ruling in Damache. No new precedent beyond the application of existing constitutional protections and prior case law was established. The ruling underscores the constitutional guarantee of the inviolability of the dwelling and clarifies that law enforcement officers cannot rely on statutory arrest powers when their presence in a private dwelling is unlawful.