Irish Examiner
March 15, 2012

The Special Criminal Court trial of a Louth man accused of membership of the IRA has become the first trial to collapse following a recent Supreme Court ruling on a key piece of anti-terrorist legislation.

No evidence was heard in the trial of Peter Butterly (aged 34), of Cortown, Togher, Dunleer, who had pleaded not guilty to membership of an unlawful organisation styling itself the Irish Republican Army, otherwise Oglaigh na hÉireann, otherwise the IRA on October 8, 2010.

The non-jury court ruled this afternoon that the arrest of Mr Butterly was unlawful, as gardaí had entered his home using a warrant secured under a section of the Offences Against the State Act which was recently found to be unconstitutional.

Last week, Dublin man Paul Maye (aged 47) escaped prosecution for firearms and ammunition offences after the State decided not to proceed with the charges against him before the matter came to trial.

It was understood to be the first case to be dropped following the landmark Supreme Court ruling, although no reason was given for the decision in court.

In February 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 had permitted a search contrary to the Constitution 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.

The court made its ruling on a case where the search warrant had been issued by a member of the Garda team investigating the matter.

Section 29 has been routinely used in the past by gardaí to search the homes of suspects in terrorist cases.

Mr Justice Butler, presiding at the Special Criminal Court, said the court was satisfied that when gardaí entered Mr Butterly’s home in 2010 they did so “entirely properly” as they were acting within the law as they understood it then.

However, he said that since that action took place, section 29 has been declared repugnant to the Constitution and therefore did not exist in this case.

Mr Justice Butler said the court was satisfied that when gardaí entered Mr Butterly’s premises they did so unlawfully and that his subsequent arrest was unlawful.

He said the court would direct that Mr Butterly be found not guilty and that each side be given a transcript of today’s proceedings.

Opening the prosecution case, Mr Garnet Orange BL had told the court that Mr Butterly was arrested by gardaí as part of an investigation in to the alleged transportation of bomb components for assembly.

He said that on the afternoon of October 8, 2010 detectives entered Mr Butterly’s home on foot of a warrant and arrested him in the back garden of his house.

Mr Orange said the prosecution accepted that the warrant issued to detectives by Chief Superintendant Diarmuid O’Sullivan under section 29 of the Offences Against the State Act was invalid but contended that the arrest of Mr Butterly in his garden was lawful.

He said the trial would embark on a voir dire, a “trial within a trial” to rule on whether the circumstances of Mr Butterly’s arrest were lawful and whether the evidence against him was admissible.

Mr Hugh Hartnett SC, for the accused, told the court that the section 29 warrant secured by gardaí was “bad” and it was very clear from the evidence that detectives used that warrant to affect entry on to Peter Butterly’s property and arrested him.

He submitted that the arrest of Mr Butterly took place in the course of an illegal unconstitutional search and that it and “anything that goes from it” was bad.

Mr Orange argued that “nothing of relevance” took place within the four walls of Mr Butterly’s house and all the “action” took place in the garden, where he said the constitutional right of the inviolability of the dwelling did not extend.

He said that gardaí had an “abundance of clear evidence” available to them and had specific information in relation to the accused man following a surveillance operation.

Mr Orange reminded the court that section 6 of the Criminal Law Act gave gardaí wide powers to enter on to private property and effect an arrest.

He said that despite the technical difficulties with the warrant, the arrest was lawful and the prosecution should not be deprived of the option of proceeding with the case and adducing evidence from the arrest and “everything that flows from it”.

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