Supreme Court: Convicted IRA member’s claim of unconstitutional detention dismissed

Supreme Court: Convicted IRA member's claim of unconstitutional detention dismissed

Killian Flood BL

The Supreme Court has dismissed an appeal brought by a convicted IRA member who claimed that his detention by gardaí was unconstitutional.

The applicant, Mr Kevin Braney, had been arrested and detained by gardaí on suspicion of being a member of an unlawful organisation under the powers contained in the Offences Against the State Act 1939. He was subsequently convicted in the Special Criminal Court.

In conducting their investigation, the gardaí had extended Mr Braney’s detention for a further 24 hours pursuant to the terms of the 1939 Act. Mr Braney had contended that, because these terms for extension of detention differed from other criminal statutes, the period of detention was unlawful. On Friday, the Supreme Court rejected this submission and confirmed the validity of Mr Braney’s detention.


Mr Braney had been convicted in May 2018 by the Special Criminal Court of being a member of the Irish Republican Army or Óglaigh na hÉireann. This was an offence contrary to the 1939 Act and Mr Braney was sentenced to four years and six months in prison.

During the investigation, gardaí had arrested Mr Braney for the purpose of questioning him. Further, gardaí had exercised their powers under section 30(3) of the 1939 Act to extend the period of detention by 24 hours. The extension was authorised by a Chief Superintendent in accordance with the section.

In judicial review proceedings brought after the conviction, Mr Braney contended that the detention was unconstitutional on the basis that other criminal statutes required more onerous steps to be taken by gardaí before extending the detention. Specifically, it was contended that section 4(2) of the Criminal Justice Act 1984 required an additional opinion from the arresting officer that a detention was necessary for the investigation of the offence. There was no such requirement for an arrest under the 1939 Act. As far as there were differences between a section 30(3) detention and other forms of detention, Mr Braney claimed that the 1939 Act infringed the right to equality under Article 40.1 of the Constitution.

Further, Mr Braney also argued that only a judge or an uninvolved police officer could extend the period of detention. In his case, the Chief Superintendent who authorised the extension also gave evidence at the Special Criminal Court. This submission was derived from the principles relating to the procedure for obtaining a search warrant, which was said to be an analogous police power.

Finally, Mr Braney claimed that the Supreme Court authority in The People (DPP) V. Quilligan and O’Reilly (No. 3) [1993] 2 IR 305 which upheld the validity of section 30(3) should be reviewed and overturned. Mr Braney relied on the fact that several changes in the law had occurred since the decision. It was argued that the shifting landscape of criminal procedure since the decision in Quilligan and O’Reilly meant that the judgment was capable of being revisited by the Supreme Court.

The judicial review was dismissed in the High Court and Mr Braney appealed directly to the Supreme Court.

Supreme Court

Giving the judgement of the court, Mr Justice Peter Charleton refused the appeal and affirmed the decision of the trial judge. In a lengthy tracing of the legislative history and case law developments, the judge said that there was a basic set of rights afforded to people detained under any criminal statute. Crucially, in the case of every detention, a garda must form a reasonable suspicion that a person is guilty of an arrestable offence. This equally applied to the 1939 Act, the court said.

The court further ruled that it was legitimate for the Oireachtas to differentiate between the terrorist and organised crime offences contained in the 1939 Act and the general offences contained in the 1984 Act. The court said that “[d]ifferent offences require different procedures with regard to arrest and detention” and as long as there was no contravention to the “floor of rights” of arrested people, the differences in detention periods were constitutional.

The analogy which was drawn between the procedure for obtaining a search warrant was not appropriate. On the argument of Mr Braney, it was said that any difference between the search warrant procedure and the detention procedure infringed the principle of equality under Article 40.1. Rejecting this submission, the court said that an infringement of equal treatment must be on the basis of human characteristics. Although both searches and detention involved an infringement of rights, this did not mean that the procedures applying to both had to be identical. In particular, the court noted that a search was one-off event which required a “front-loading of rights,” whereas detention was an ongoing process requiring a “floor of rights.”

In respect of the submission that the Court should revisit the decision in Quilligan and O’Reilly, Mr Justice Charleton held that there was no sufficient basis to revisit the judgment due to changes in the laws of detention. The court said that this assertion put the Constitution in “an inferior position to statute and common law.” The court held that laws were required to conform with the Constitution and it had not been explained how a change in laws for unrelated offences could have changed this “constitutional order.”


The court dismissed the appeal and upheld the constitutionality of detentions pursuant to section 30(3) of the Offences Against the State Act 1939.

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