The leader of the so-called New IRA in Dublin, who is serving a life sentence for the murder of another dissident republican, has lost his challenge to the constitutionality of a law under which he was detained for suspected membership of a proscribed organisation.
Kevin Braney (45), Glenshane Crescent, Tallaght, Dublin 24, was found guilty by the non-jury Special Criminal Court in February 2019 of what the court described as the "premeditated" murder of 35-year-old Peter Butterly six years earlier.
Mr Butterly was chased and shot outside The Huntsman Inn, Gormanston, Co Meath, in view of students waiting for their school bus, on the afternoon of March 6th, 2013. The father-of-three died from gunshot wounds to his neck and upper back.
The prosecution at Braney’s trial described him as “said in effect to have been the man who gave the orders”.
Three other men had previously received life sentences for Mr Butterly’s murder.
Prior to his murder conviction, Braney was convicted in May 2018 of membership of a proscribed organisation for which he received a four and a half year sentence. He appealed that conviction and also initiated High Court judicial review proceedings in 2018 arguing section 30.3 of the Offences Against the State Act 1939, as amended, is constitutionally invalid and incompatible with provisions of the European Convention on Human Rights and Fundamental Freedoms.
A person arrested under section 30.3 may be detained for 24 hours and the detention may be extended for another 24 hours if an officer not below the rank of Chief Superintendent so directs.
Among Braney’s claims was that section 30.3 is unconstitutional because it does not provide for any input by the member in charge of the Garda station to which an arrested person is brought for detention into the authorisation of the initial period of 24 hours detention.
Having regard to the interference with the arrested person’s rights to liberty, to silence and to a fair trial, the lack of any such oversight rendered the detention incompatible with the Constitution, it was argued.
‘Considerable strength’
In a judgment on Thursday, Mr Justice Anthony Barr dismissed the challenge.
The judge said there was “considerable strength” in arguments advanced by Braney for independent oversight where the rights to liberty, silence and a fair trial of a detained person are at stake.
However, because the Supreme Court had determined in a 1992 judgment, DPP v Qulligan and O'Reilly (No 3), that Section 30 was not repugnant to the Constitution, the High Court cannot revisit the issue of constitutionality of the section, he held.
He did not accept, because subsequent legislation provided for some involvement of the member in charge at the initial detention stage in respect of the types of serious crime, that meant the 1992 decision was wrong in law.
There was “considerable strength” in Braney’s argument the law has developed significantly since 1992, including the Supreme Court’s recognition in another case there should be some independent oversight when there is interference with a person’s right to inviolability of their dwelling.
Given the Supreme Court thought it necessary to have independent oversight when the right to inviolability of a person’s dwelling was at stake, that would be “all the more relevant” where there was engagement with three constitutional rights – to liberty, silence and fair trial — in the case of a detention.
There was “considerable force” to the argument such independent oversight would not make the investigation of suspected involvement in terrorist offence more onerous as the member in charge is involved in a section 30 detention in any event, he observed.
However, he considered he was bound by the 1992 Supreme Court decision on constitutionality of the section.
In other findings, he was satisfied there were “ample grounds” justifying the extension of Braney’s detention and that various protections available to an arrested person, including of reasonable access to a solicitor, meant there was no breach of Articles 4 and 5 of the ECHR.
