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1. This is an inquiry pursuant to Article 40 of the Constitution into the lawfulness of the detention of each of the Applicants. On the opening day of the hearing the first five Applicants, namely, Messrs O'Hagan, Wilkinson, McCartney, Murray and Kavanagh intimated through their Counsel that they did not wish to proceed further in the matter. Accordingly, I considered the return to the primary order made in respect of each of those Applicants and adjudicated that it was good and sufficient and justified their detention. Having concluded that their detention was lawful, their applications for absolute Orders of Habeas Corpus were dismissed.

2. This judgment concerns itself with the inquiry which then proceeded over a number of days in respect of the three remaining Applicants, Messrs Cleary, McNally and Sheehy.

3. Messrs Cleary and McNally were charged before the Special Criminal Court on the 24th June, 1996. Both were charged with unlawful possession of explosive substances with intent to endanger life or cause serious injury. They were also charged with knowingly having in their possession an explosive substance under circumstances as to give rise to a reasonable suspicion that they did not have it in their possession for a lawful object.

4. Mr. Sheehy was also charged before the Special Criminal Court with membership of an unlawful organisation, namely, the Irish Republican Army, together with possession of a firearm with intent to endanger life.

5. All three Applicants were, subsequent to their charging, remanded from time to time in custody by the Special Criminal Court to Portlaoise Prison.

6. On the 8th October, 1996 the Applicants, Cleary and McNally, appeared before the Special Criminal Court and were remanded in custody until the 13th November, 1996. On the 15th October, 1996 the Applicant, Sheehy, appeared before the Special Criminal Court and was remanded in custody until the 19th November, 1996.

7. On both the 8th October and the 15th October, 1996, His Honour Judge Dominic Lynch sat as a member of the Special Criminal Court.

8. It is common case that Judge Lynch was, at his own request, removed from membership of the Special Criminal Court by a decision of the Government made on the 1st August, 1996. Judge Lynch was not informed of that decision and he continued to sit as a member of the Special Criminal Court up to and including the 28th October, 1996. The Respondent and the Notice Parties accept that any orders purportedly made by a Special Criminal Court of which Judge Lynch was a member after his removal from membership of that Court are null and void.

9. It is accepted by the Respondent and Notice Parties that each of the three Applicants were in unlawful detention from the dates in October 1996 upon which they were purportedly remanded in custody by the invalid orders of the Special Criminal Court up to the 6th November, 1996. On the night of the 6th November, 1996, the authorities took their first active steps to deal with that situation.

10. In short, on the night of the 6th November, 1996, the Minister for Justice, on the advice of the Attorney General, directed that the Applicants be released from their unlawful detention. The Director of Public Prosecutions directed that in the event of them being released, they were to be rearrested at common law and brought before a sitting of the Special Criminal Court on the 7th November, 1996, there to be charged with the same offences as theretofore but in substitution for them. This is but a short summary of what occurred on the 6th and 7th November, 1996 since it will be necessary for me to look in some greater detail at various factual aspects of what happened on those dates having regard to the submissions made to me.

11. On the 7th November, 1996, the Applicants were charged before a properly constituted Special Criminal Court and were remanded in custody. They subsequently applied to this Court for an inquiry into the lawfulness of their detention pursuant to Article 40 of the Constitution. The inquiry was ordered and was conducted over a number of days. This is the judgment on foot of it.

12. In response to the conditional orders which were granted by this Court, returns were made in respect of each of the Applicants. They show that the Applicants are held on foot of committal warrants issued by the Special Criminal Court. It is accepted that there is no defect on the face of these warrants but nonetheless the Applicants contend that for reasons which I will develop presently, they are in unlawful custody and ought now to be released by means of an absolute Order of Habeas Corpus.

13. I will consider each of the submissions made on behalf of the Applicants which seek to bring about such a result.

14. Mr. Gageby S.C., on behalf of the Applicants, contends that as a matter of fact the Attorney General personally knew of the invalid composition of the Special Criminal Court on or before the 1st November, 1996 but notwithstanding that knowledge, did nothing about it. It is said that he was placed in a unique position as the possessor of such knowledge in that he alone understood or would have understood the consequences of the invalid orders made by the Special Criminal Court.

15. Possessed with the knowledge alleged against him, it is submitted that the Attorney General, as the guardian of the public interest, was, as a matter of law, obliged and under a legal duty to bring about the release of the Applicants at the earliest possible time. It is said that if the Attorney General was aware of the matters alleged, then his primary duty was to the Applicants rather than to the Government as its legal adviser under Article 30 of the Constitution.

16. It is submitted that this alleged knowledge on the part of the Attorney General coupled with his omission to act on foot of it so as to bring a speedy end to the unlawful detention of the Applicants was such a serious default on his part that this Court ought to mark that fact by now releasing each of the Applicants absolutely. It is contended that the breach by the Attorney General of his legal obligations towards the Applicants was such a serious omission on his part that it has infected the legality of their subsequent detention ordered by a properly constituted Special Criminal Court on the 7th November, 1996.

17. In considering these submissions, the first thing which I must do is ascertain from the evidence which has been adduced whether or not, as a matter of fact, it can be said that the Attorney General was possessed of knowledge of the unlawful detention of the Applicants before the 6th November, 1996. If I am satisfied that he did have knowledge of the unlawful detention of the Applicants prior to that date, I must then consider whether his primary legal obligation was to bring about the speedy release of the Applicants and if it was, whether he failed in that obligation or not. I must then consider that if such a default occurred, whether it would justify the immediate release of the Applicants.

18. The evidence which has been relied upon by the Applicants to demonstrate the alleged state of knowledge of the Attorney General is as follows.

19. The first item of evidence is a letter of the 2nd October, 1996 to the Minister for Justice. It reads as follows:-

20. In my view that letter does not demonstrate a state of knowledge on the part of the Attorney General at all. Rather it is a request by him for information as to whether a decision to remove Judge Lynch had been notified both to that Judge and to the President of the Circuit Court. Furthermore, it is to be noted that that letter was written six and thirteen days respectively prior to the making of the invalid orders by the Special Criminal Court which remanded these Applicants in custody. It cannot, therefore, be said that this letter demonstrates knowledge on the part of the Attorney General of the unlawful detention of the Applicants since at the time of the writing of his letter, they had not been unlawfully detained at all.

21. The next item of correspondence which is mentioned is a letter from the Attorney General of the 1st November, 1996. However, I have held that that letter is protected by legal professional privilege (judgment 23rd January, 1997) and my views in that regard have been upheld by the Supreme Court (judgment 5th March, 1997). Consequently, it cannot be used to advance any argument of an alleged state of knowledge on the part of the Attorney General and this much is acknowledged by Mr. Gageby.

22. The next item upon which he relies is a letter from the Minister for Justice dated the 8th November, 1996. It reads as follows:-

23. In the copy of that letter which has been exhibited before me, there is a manuscript notation on the bottom right hand corner of it which reads:-

24. This letter is, inter alia, in response to that of the 2nd October from the Attorney General. It answers his queries but by the time of its writing it had been overtaken by the events of the 6th and 7th November, 1996. It does not advance the Applicants' case as to the alleged state of knowledge of the Attorney General.

25. Finally, Mr. Gageby relies upon an extract from a speech which was made by the Minister for Justice in the Dail on the 7th November, 1996. There she said:-

26. On the basis of this statement made in the House by the Minister for Justice, Mr. Gageby submits that it, taken alone or in conjunction with the earlier correspondence, demonstrates a state of knowledge on the part of the Attorney General which, assuming him to be under the legal obligation contended for, made it imperative that he move with speed to obtain the release of Mr. Gageby's clients from custody between the 1st and the 6th November, 1996.

27. Leaving aside any evidential problems concerning the admissibility of this statement, I cannot construe either this statement of the Minister alone or it, coupled with the earlier correspondence, as demonstrating such knowledge on the part of the Attorney General concerning the Applicants as would trigger the alleged legal obligation.

28. If the Attorney General was under the legal obligation contended for, the Applicants would have to show that he was actually aware of the illegality of their detention and neglected to do anything about it. They have not so demonstrated and so fail in limine as far as this part of the case is concerned.

29. On the evidence relied on here, I hold as a matter of fact that the Attorney General did not have knowledge of the illegal detention of the Applicants prior to the night of 6th November, 1996.

30. In these circumstances it is not necessary for me to consider whether the legal obligation which it is alleged was cast upon the Attorney General exists or not. Neither do I have to consider whether he breached such alleged obligation. Nor do I have to consider whether a breach of such obligation would have the far-reaching effects which the Applicants maintain.

31. This complaint made on behalf of the Applicants is rejected.

32. There is really no dispute between the parties in relation to this topic. The Applicants' argument is that the jurisdiction of the Special Criminal Court is rather unique in that it is founded upon the requirement that a person be lawfully brought before it for trial.

33. Mr. MacGuinness S.C., on behalf of the DPP, accepts that in order for the Special Criminal Court to have jurisdiction to remand the Applicants in custody as it did on the 7th November, 1996, they must have been 'lawfully brought before ' it. (See McElhiney v. The Special Criminal Court & Anor [1990] 1 I.R. 405).

34. I may therefore move on to the next part of the Applicants' case.

35. On the night of the 6th November, 1996 the Minister for Justice directed that the Applicants be released from their unlawful detention. The Minister gave this direction on foot of advice received from the Attorney General.

36. The Applicants contend that there was a failure to implement the Minister's direction and that they were not properly released from the custody of their jailer. If they are correct on this point, then they go on to submit that their arrest by the Gardai on the night of the 6th/7th November, 1996 was an arrest upon an arrest and was therefore unlawful. I will consider this argument in more detail in a moment but first I must make findings concerning the release which allegedly took place. The factual position was as follows:-

37. At 11.30 p.m. on the night of the 6th November, 1996, Mr. William Donoghue, the Prison Governor, received instructions from Mr. Sean Aylward of the Department of Justice to release thirteen prisoners in total. He was told that they were being held on bad orders. The Governor telephoned Mr. Paddy O'Keeffe, the Assistant Governor, and directed him to release the prisoners.

38. At 11.35 p.m. Assistant Governor O'Keeffe instructed Chief Officer Dormer that thirteen prisoners were to be released on ministerial order. Both the Assistant Governor and the Chief Officer then went to inform the spokesmen for the relevant prisoners. The prisoners' spokesmen were informed at approximately 11.50 p.m. The spokesmen asked the Assistant Governor a number of questions and held a conversation with him for approximately ten minutes. The spokesmen then spoke to the prisoners and informed them of the situation.

39. At about 12.20 a.m. on the 7th November, 1996, Chief Officer Dormer instructed Assistant Chief Officer Phelan to unlock the Applicants and to make arrangements to have them and their property brought to the reception area of the prison. The prisoners were then unlocked one by one.

40. Assistant Chief Officer Burke was instructed to organise staff for reception and searching duties and to man the necessary posts to ensure the security and good order of the prison. He was told to obtain the relevant identification and discharge dockets from the general office and to have them signed and ready. The clerk in the general office was informed of the names of the prisoners to be released so that he could have their private cash and gratuity ready for them on discharge.

41. Chief Officer Dormer then spoke to the spokesmen for twelve of the prisoners and advised them of the order in which the prisoners would be brought to the general office.

42. By 12.30 a.m. the first three prisoners were brought to the reception and were searched and put through the discharge process. The next three who were brought to the reception area refused to be searched. Assistant Chief Officer Burke informed Chief Officer Dormer of this situation and he then went to the reception area to resolve the difficulty. A compromise was reached between Chief Officer Dormer and the spokesmen for the prisoners. This resulted in a delay of the order of fifteen to twenty minutes in the release process. The remainder of the prisoners were then brought to the reception area and were processed one at a time. All of them were given their personal property. By 1.20 a.m. all of the prisoners had been dealt with.

43. Once a prisoner was given his cash, he was brought directly to the main gate for discharge. Each prisoner was in turn brought into the first gatelock and identified to the officer in charge of the main gate. He was then brought through what is called the middle lock where he was discharged from the prison through the third or outer gatelock, having been identified to each gate officer in turn.

44. Once each of the prisoners was placed outside the main gate of the prison, he was confronted by a party of Gardai. These Gardai positioned themselves outside the main gate of the prison and inside the perimeter fence. This apparently was the location where other prisoners released from Portlaoise Prison had been arrested in the past.

45. At 1.35 a.m. the Applicant Cleary was arrested by Garda Liam Mulhall. At 1.38 a.m. Brian McNally was arrested by Detective Garda Donelan. At 1.50 a.m. the Applicant Sheehy was arrested by Detective Garda Gilsenan. All of these arrests were effected outside the main gate of the prison but inside the perimeter fence.

46. I have come to the conclusion that there is no substance in the argument made on behalf of the Applicants under this heading. Prior to the ministerial direction given on the night of the 6th November, 1996, the Applicants were held in the custody of the Governor of Portlaoise Prison. He was directed by the Minister to release them. From the moment that that direction was given, steps were put in train to bring to an end his continued custody of the Applicants. Once the necessary formalities were dealt with, each prisoner had his cash paid over to him and was brought directly to the main gate of the prison for discharge. Each prisoner was brought through the three gatelocks before being discharged from the prison through the main gate. In my view, all of this activity was indicative of the cessation of the Governor's custody of the individual Applicants. I am satisfied that the Governor's custody of each of the Applicants ceased and that therefore their detention on foot of the invalid orders made by the Special Criminal Court was brought to an end by the time of their arrests on 7th November, 1996. The fact that when they emerged from the main gate of the prison they were still on prison property and were met by a party of Gardai does not, in my view, in any way invalidate the cessation of the Governor's detention of them. I am, therefore, satisfied that there was no failure on the part of the Governor to implement the ministerial direction.

47. Even if I am wrong in this view, it makes little difference to the outcome of these proceedings for reasons which I will come to when I consider the next complaint which is made by the Applicants.

48. The contention which is made on behalf of the Applicants under this hearing of complaint is that the arrests which were effected in the early hours of the 7th November, 1996 were unlawful. It is said that they were unlawful because there was no real release of the Applicants from custody. I have already held as a matter of fact that the Governor's custody of the Applicants had ceased at the time when they were arrested. If I am wrong in my views on that topic, I am nonetheless of opinion that there is nothing unlawful per se about an arrest of a person already in custody or detention provided that such arrest is carried out with the consent of the custodian or detainer. (See The People (DPP) v. Kehoe 1985 I.R. 444). The correctness of this view was accepted by the Divisional Court in the case of Hegarty v. Governor of Limerick Prison (unreported 26th February, 1997).

49. In the present case I am quite satisfied that even if the Governor's custody of the Applicants had not ceased before their arrest, the evidence is entirely one way as to the Governor consenting to the arrest which was effected in the small hours of the morning of the 7th November, 1996. It follows, therefore, that even if Mr. Gageby is correct in his submissions concerning the release from custody, there can be no doubt but that the arrest of the Applicants was effected with the consent of the Governor of the prison and was therefore, in my view, lawful.

50. I am of the view that the matter is put beyond doubt by the dictum of Davitt P. in In Re Ó Laighleis 1960 I.R. 93 where, speaking for the Divisional Court, he said:-

51. Earlier in the judgment he said:-

52. In the present case I have held that at the moment of arrest the Governor's custody of the Applicants had ceased. But even if it had not, that did not debar a further arrest taking place on the authority of Ó Laighleis' case. An attempted arrest might not have been successful if the existing custodian insisted on continuing his custody. But that is far from the case here.

53. I also reject any suggestion that before a lawful arrest could have been made by the Gardai on the 7th November, 1996 there had to be a release in circumstances where the Applicants were given what Mr. Ryan S.C. described as a sporting chance of making good their departure. There is no such requirement imposed by law and there is abundant authority against such a notion. See for example McCarthy J. in People (DPP) v. Kehoe [1985] I.R. 444 where he said delivering the judgment of the Court of Criminal Appeal:-

54. See also the view of Barr J. in DPP v. Colwell (unreported 17th November, 1994) where he said there was "no obligation to go through the charade of releasing the respondent from arrest before charging him with dangerous driving" . And further see the decision of the Court of Criminal Appeal pronounced by Blayney J. in People (DPP) v. O'Shea (1st July, 1996).

55. I also reject the argument which is put forward by the Applicants to the effect that the arrest was unlawful because it was "a fruit" of the earlier unlawful detention. In The People (Director of Public Prosecutions) v. Colm O'Shea (1981) 2 Frewen 57, O'Higgins C.J. in delivering the judgment of the Court (O'Higgins C.J., Finlay P. and Costello J.) said as follows:-

56. In my view, this statement of the law applies to the circumstances of this case and I am, therefore, satisfied that the arrest of the Applicants was not unlawful on this ground either.

57. The Applicants contend that it was not open to the authorities to rearrest them while the original charges which had been preferred before the Special Criminal Court were extant. They say that those charges ought to have been withdrawn before the Applicants could have been lawfully rearrested. They contend that the purpose of a common law arrest is to bring a person before a Court to be charged. As the Applicants had already been charged, the course taken in the present case was not open to the authorities.

58. The answer to this contention made by the Director of Public Prosecutions is twofold. First, he says that this assertion flies in the face of what is sworn to by Mr. Robert Eagar in his affidavit grounding the Applicants' complaint and in the Statement of Claim which was subsequently delivered. Secondly, it is said that even if this contention is incorrect, the arrests were nonetheless lawful and would only be rendered unlawful if they amounted to an abuse of the process of the Court, which it is said did not take place in the instant case.

59. I will consider each of these arguments in turn.

60. As to the first, Mr. Eagar swore in the affidavit grounding the original application as follows:-

61. Paragraph 6 of the Statement of Claim in the case of all three Applicants is as follows:-

62. It is claimed that in the case of each of the Applicants, the orders which were made on the 8th October, 1996 in respect of the Applicants, Cleary and McNally and that of the 15th October, 1996 in the case of Sheehy were not simply orders of remand. On the face of the orders what the Special Criminal Court purported to do was to adjourn the trial of the Applicants for mention to the 13th and 19th November, 1996 respectively. These orders, it is said, not merely failed to lawfully direct the remand of the Applicants but also failed to adjourn their trials further for mention. So it follows that the charges which the Applicants were facing had not been adjourned to any proper future sitting of the Special Criminal Court and so had fallen into abeyance.

63. The purported orders made by the Special Criminal Court are clear on their face. Not merely do they direct the Applicants to be remanded in custody but they also demonstrate that the mention of the trial of the Applicants has been adjourned to a future date. These orders were invalid but I am by no means certain that the consequence that the DPP argues for concerning the charges falling into abeyance is necessarily correct. However, having regard to the views which I have formed in respect of the next part of this complaint, it is not necessary that I should decide this issue.

64. The second leg of the DPP's answer to this complaint has, I think, already been dealt with to a great extent by the decision of the Divisional Court in Hegarty's case.

65. In Hegarty's case it was submitted that once there were already lawful charges before the Special Criminal Court, it was an abuse of the process of that Court to rearrest Hegarty for the purpose of bringing him before the Court on what were repeat charges. Geoghegan J. pointed out that there did not appear to be any direct authority on the point but that it might well be that in some circumstances a rearrest for the same charges would be an abuse of the process of the Court. The Divisional Court decided that in the circumstances of Mr. Hegarty there was not such an abuse of process.

66. I am satisfied that there was no abuse of process involved in this case either. Just as in Hegarty's case, through no fault of the Director of Public Prosecutions in the present case, an unlawfully constituted Special Criminal Court purported to remand in custody the Applicants, who were being lawfully and properly prosecuted before the Special Criminal Court. As was said by the Divisional Court in Hegarty's case:-

67. In the present case there was a mistake which was not of the making of the Director of Public Prosecutions. He sought to regularise the position and did so in a manner in which there was neither unfairness nor oppression visited upon the Applicants. Having been arrested and brought before the Special Criminal Court on the 7th November, 1996, it was made clear that the fresh charges were being substituted for the earlier ones. It seems to me that under Section 47 of the Act, it was open to the Director to have the Applicants brought before the Special Criminal Court on that occasion and to proceed to charge them on the basis of the substituted charge. (See People (DPP) v. Patrick McCann (1981) 2 Frewen 57).

68. In the result, therefore, I am of the opinion that this ground of complaint advanced on behalf of the Applicants is without substance. I turn now to consider the final ground of complaint.

69. Mr. Gageby S.C. asserts that the evidence establishes a decision on the part of the authorities to delay the release of the Applicants so that, as he put it, the Government forces might be marshalled outside the prison. In order to substantiate this claim, he has drawn my attention to a number of averments in the various affidavits which have been filed. He did not seek to cross-examine any of the deponents of those affidavits.

70. This is essentially a question of fact for me to determine. Having considered the affidavit evidence, I am not satisfied that the Applicants have demonstrated any undue delay on the part of the authorities in putting in train the necessary steps which had to be pursued with a view to regularising the position once they became aware of it on the 6th November, 1996.

71. Even if some complaint of delay could be made in this regard, that would not of course bring about the release of the Applicants. If they were to secure their release on this ground, they would have to demonstrate activity on the part of the authorities akin to what took place in the case of Trimbole (see The State (Trimbole) v. Governor of Mountjoy Prison (1985) I.R. 550). Just as the Divisional Court held in Hegarty's case, I am satisfied that the circumstances in the case of these Applicants are wholly different from those in Trimbole's case. Trimbole's case cannot be relied upon by the Applicants here as an argument for bringing about their release either under this heading or any of the other headings of complaint which have been propounded. There is no evidence of a scheme deliberately involving abuse of the process of the Courts as there was in Trimbole. I cannot do better than repeat what was said by the Divisional Court in Hegarty's case:-

72. Precisely the same situation obtains in the present case. I am, therefore, satisfied that all of these Applicants are being detained in accordance with the law and I therefore refuse to make an order for their release.

73. These applications are dismissed.