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 arrested by gardaí on suspicion of being a member of a criminal organisation under the powers contained in the Offences Against the State Act 1939. He was then convicted at the Special Criminal Court.

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


Mr Braney Was convicted in May 2018 from the Special Criminal Court of being a member of this 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 analysis, gardaí had arrested Mr Braney for the purpose of questioning him. The expansion has been authorised by a Chief Superintendent in compliance with the section.

In judicial review proceedings caused the conviction, Mr Braney claimed that the detention was unconstitutional on the basis that other criminal statutes required more onerous steps to be obtained by gardaí before expanding the detention. Specifically, it had been claimed that section 4(2) of the Criminal Justice Act 1984 took an additional ruling from the arresting officer that a detention was required for its investigation of the statute. There was not any such requirement for an arrest under the 1939 Act.

Further, Mr Braney additionally contended that only a judge or a uninvolved police officer could extend the period of detention. In his instance, the Chief Superintendent who authorised the expansion also gave evidence at the Special Criminal Court. This entry was derived from the fundamentals related to the procedure for obtaining a search warrant, which was said to be an analogous authorities power.

Eventually, Mr Braney asserted the Supreme Court jurisdiction in The People (DPP) V. Quilligan and O’Reilly (No. 3) [1993] 2 IR 305 which declared the validity of section 30(3) ought to be reviewed and overturned. Mr Braney relied on the fact that many changes in the legislation had happened since the choice. It was contended that the shifting landscape of criminal procedure since the decision at Quilligan and O’Reilly supposed that the ruling had been 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

Offering the judgement of the court, Mr Justice Peter Charleton refused the appeal and confirmed 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 simple set of rights afforded to individuals arrested under any criminal statute. Crucially, in the event of each detention, a garda should 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 valid for the Oireachtas to differentiate between the terrorist and organised crime offences in the 1939 Act and also the overall offences within the 1984 Act. The court stated that”[d]ifferent offences require various procedures in regards to arrest and detention” and as long as there was no contravention into the”floor of rights” of detained people, the differences in detention intervals were constitutional.

The analogy which was drawn between the procedure for obtaining a search warrant wasn’t appropriate. On the argument of Mr Braneyit was said that any gap between the search warrant procedure and the detention process uttered the principle of equality under Article 40.1. Rejecting this submission, the court stated an infringement of equal treatment has to be on the basis of individual traits. Though both hunts and detention involved a breach of rights, this did not signify that the procedures applying to both had to be indistinguishable. Specifically, the court noted that a search was one-off incident which required a”front-loading of rights,” whereas detention had been a continuing process requiring a”floor of rights.”

In respect of the entry that the Court should revisit the decision at Quilligan and O’Reilly, Mr Justice Charleton held that there was no adequate basis to reevaluate the judgment as a result of changes in the laws of detention. The court said that this assertion place the Constitution in”a poor position to statute and common law.” The court maintained that legislation were needed to conform with the Constitution and it hadn’t been explained how a change in legislation for unrelated offences could have changed this”constitutional order.”