Barry O’Brien
The State will not seek a retrial in the case of a local man who had one of his two convictions for IRA membership quashed by the Court of Criminal Appeal last year.
Mr Damien Colgan SC this morning told the Special Criminal Court that the State wished to enter a “Nolle Prosequi”, in other words not proceed with the retrial of Barry O’Brien.
The 41-year-old father of five from Stonetown near Dundalk, was convicted in December 2010 of membership of an illegal organisation styling itself the Irish Republican Army, otherwise Oglaigh na hEireann, otherwise the IRA on April 6, 2004.
He was jailed for three years and nine months by the Special Criminal Court in February 2011.
On July 2 2012 the Court of Criminal Appeal ruled it would quash the conviction imposed by the Special Criminal Court and direct a retrial of Mr O’Brien.
He had appealed against his conviction on the basis that the warrant issued for his arrest was invalid because it was issued by the Superintendant in charge of the investigation.
Last year the Supreme Court declared that section 29 (1) of the Offences Against the State Act (as inserted by section 5 of the Criminal Law Act 1976) was repugnant to the Constitution, as it permitted a search of a person’s home on foot of a warrant not issued by an independent person.
The court found that Article 40.5 of the Constitution expressly provides that a person’s home is inviolable and shall not be forcibly entered except in accordance with the law.
Three weeks after his 2011 conviction was overturned, O’Brien was convicted by the Special Criminal Court of membership of the IRA on August 8th, 2010.
He was sentenced to five years with three years suspended but was released on bond after the non-jury court ordered the sentence to commence on the date of the charge.
Counsel for the defendant, Ms Deirdre Murphy SC, asked the court to excuse her client’s non-attendance at the hearing as his car had suffered a puncture en-route to court.
Ms Murphy told the three-judge court that bail money also needed to be paid out to O’Brien.
Mr Justice Paul Butler, presiding at the Special Criminal Court, said the court would make all necessary ancillary orders to the entering of the Nolle Prosequi by the State.
