Special Criminal Court correct in interpretation of statutory provision in respect of detention

Fennelly J (for majority): criminal law – s. 34 of the Criminal Procedure Act 1967 – referral of question of law from ruling in Special Criminal Court – question of interpretation of s. 30(3A) of the Offences Against the State Act 1939 as inserted by s. 21 of the Criminal Justice (Amendment) Act 2009 – detention had become unlawful at the point at which the Gardaí commenced to question him about an offence other than the one for which he had been arrested, namely membership of an unlawful organisation – absence of compliance with the requirements of s. 30(3A) of the Act meant statement was ruled inadmissible – David Dodd on Statutory Interpretation in Ireland (Tottel Publishing, 2008) – Special Criminal Court correct in its interpretation.

Clarke J (dissenting): The issue is the proper interpretation of subsection 3A. inserted into the original s. 30 of the 1939 Act - the operative provision is that, if the necessary conditions are met, the relevant person "may continue to be detained" (emphasis added) - the subsection is, therefore, permissive, rather than mandatory in its terms - subsection permits continued detention on suspicion of a second or "other offence" when the appropriate opinion of that specified garda has been reasonably formed - purpose of subsection 3A is to permit, provided that the necessary procedures specified in the subsection are met, the continued detention of the suspect in question notwithstanding the disappearance of the suspicion which justified the original arrest - Special Criminal Court was incorrect in concluding that subsection 3A applied and was required to be complied with in cases where the suspicion which underlay the original arrest of a suspect still bona fide subsisted.