Supreme Court dismisses appeal where informer privilege limits cross-examination on unlawful organisation membership charge.

THE SUPREME COURT

Record No. 418/2005

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

MARTIN KELLY

Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 4th day of April 2006

1. This is an appeal brought pursuant to a certificate of the Court of Criminal Appeal under section 29 of the Courts of Justice Act,

1924 from an order of that court refusing the above-named appellant leave to appeal against his conviction by the Special Criminal

Court on the 19th November, 2003 on a charge of membership of an unlawful organisation contrary to section 21 of the Offences

against the State Act, 1939 as amended by section 2 of the Criminal Law Act, 1976.

2. The certified point of law of exceptional public importance as formulated by the Court of Criminal Appeal reads as follows:

“Are the requirements of Article 38 of the Constitution satisfied where an accused is precluded from enquiring into the basis of

the evidence of belief given against him at his trial pursuant to the provisions of the Offences against the State Act, 1939, as

amended, on a charge of membership of an unlawful organisation before the Special Criminal Court?”

3. The only ground of appeal in the notice of appeal to this court is the certified point of law. In fact it is just repeated verbatim and

therefore not strictly speaking converted into a clear stated ground of appeal in this particular case. However, what is obviously

intended is that this court should consider whether the trial was fatally flawed by reason of limitations being placed on counsel for the

appellant in his cross-examination of Chief Superintendent Kelly who gave belief evidence under section 3(2) of the Offences against

the State (Amendment) Act, 1972 to the effect that the appellant had been a member of the IRA on the relevant date. The Chief

Superintendent was cross-examined as to the source of his belief but pleaded privilege on the grounds that to disclose his sources

would endanger life. The Special Criminal Court upheld the plea of privilege.

4. At this juncture, it is important to note that the appeal to this court is not concerned with any matter other than the question of

whether the appellant was deprived of a fair trial by reason of that limitation on cross-examination. It was accepted that the

evidence was admissible and it was also accepted that the Chief Superintendent was entitled to plead informer privilege. It is a

curious feature of the case that although sixteen stated grounds of appeal were served and lodged in the office of the Court of

Criminal Appeal for the purposes of the application for leave to appeal against conviction, they did not include the ground now put

forward. It is clear, however, from the terms of the reserved judgment of the Court of Criminal Appeal delivered by McCracken J.

sitting with Peart and Dunne JJ that Mr. Peter Finlay, S.C., counsel for the appellant was allowed to make the argument at the

hearing of the application for leave to appeal that the appellant was not given a trial in due course of law in accordance with his

entitlement under Article 38 of the Constitution. At p. 13 of the unreported judgment, McCracken J. referring to Mr. Finlay comments

as follows:

“Very fairly, he does not go so far as to argue that a claim of privilege cannot be entertained, but he does submit that a fair

trial requires some investigation as to whether it is reasonable to protect a claim of privilege in any particular case.”

5. It is clear, therefore, that the fair trial issue although not included in the grounds of appeal was fully aired before the Court of

Criminal Appeal and duly considered by that court and it is now in relation to that issue only that the matter comes before this court.

Mr. Finlay again appearing for the appellant forcefully argued that the limitation placed on his cross-examination of the Chief

Superintendent rendered the trial unfair.

6. The first point to be made is that the presumption of constitutionality applies to each of the acts relevant to this case. That is

important because a limitation on cross-examination is inherent in the very terms of section 3(2) of the Offences against the State

(Amendment) Act, 1972. That subsection reads as follows:

“Where an officer of an Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating

to an offence under the said section 21, states that he believes that the accused was at a material time a member of an

unlawful organisation, the statement shall be evidence that he was then such a member.”

7. This subsection was considered by the High Court (Costello J.) in O’Leary v. Ireland [1993] 1 I.R. 102. In that case after the

plaintiff had been convicted on foot of belief evidence by a Chief Superintendent under the subsection and after that conviction had

been affirmed by the Court of Criminal Appeal, the plaintiff by plenary action sought a declaration in the High Court that (inter alia)

section 3(2) of the Act of 1972 was invalid having regard to the Constitution. The basis of the claim was that there was a reversal of

the burden of proof and that the onus was on the accused to disprove his guilt. The plaintiff’s argument was rejected by the High

Court on the grounds that the burden of proof had not been shifted. All that had happened was that belief evidence of a Chief

Superintendent was rendered admissible. Costello J. held that the trial court was then free to attach such weight to the evidence as

it saw fit. Indeed the judge went further and held that there was no obligation on the Special Criminal Court to convict the accused in

the absence of exculpatory evidence nor was there any such obligation even in the absence of the accused giving evidence. The

decision of the High Court was not appealed and there the matter rests.

8. It is important to consider whether the actual terms of section 3(2) inherently restrict a right of the accused to cross-examine. In

their written submissions to this court, counsel for the Director of Public Prosecutions point out that the case law coming from the

United States, the European Court of Human Rights and the Irish courts on cross-examination do not address the following specific

issues which they consider arise for consideration in the present case. As set out in the submissions these are:

“(i) Whether section 3(2) renders admissible the grounds underlying the Chief Superintendent’s belief, including hearsay

evidence (as distinct from the belief itself);

(ii) whether section 3(2) in fact restricts any right of the accused to cross-examine;

(iii) whether section 3(2), if it does restrict the right of an accused to cross-examine, it is nonetheless compliant with the

requirements of the Constitution, bearing in mind the manner in which it is applied by the courts including:

(a) that the belief evidence is evaluated in the light of all the evidence in the case; (b) belief evidence alone will not lead

to a conviction.”

9. It is essential to consider the purpose of section 3(2) of the 1972 Act. Prima facie if the Garda Síochána have reliable information

that somebody is a member of a prescribed organisation there might be nothing to prevent them marshalling the necessary witnesses

to give direct proof of this. However, it is perfectly clear that the legislation has been passed in the context of preserving the

security of the State and the legitimate concern that it will not in practice be possible in many, if not most cases, to adduce direct

evidence from lay witnesses establishing the illegal membership. Such witnesses will not come forward under fear of reprisal. The

Special Court itself was established to avoid the mischief of juror coercion and intimidation. In relation to all anti-terrorist offences, as

a matter of common sense, there would be equal apprehension about intimidation of witnesses. It is a reasonable inference to draw

that the subsection was enacted out of bitter experience. It is carefully crafted ensuring that the belief evidence must come from an

officer of an Garda Síochána not below the rank of Chief Superintendent. This is with a view to establishing trust and credibility as far

as possible. Counsel for the appellant accepts the concept of informer confidentiality but any extensive probing in relation to the

basis of the information irrespective of whether names are requested or not may inevitably undermine the protection of the informer

by affording clues to his identity. Even without the statutory provision, informer privilege may involve more than merely refusing to

divulge the name of an informer. Surrounding evidence which would be likely or might tend to disclose the identity of the informer

would itself be protected by the privilege in the sense that it may not be allowed to be adduced under cross-examination. I have no

doubt that in so far as Mr. Finlay was limited in his cross-examination of Chief Superintendent Kelly, permission for this limitation was

inherent in the subsection itself which enjoys the presumption of constitutionality.

10. Counsel for the Director of Public Prosecutions have come forward with two possible constructions of section 3(2). The first and

the one favoured by the Director of Public Prosecutions is that while section 3(2) permits evidence of the belief, it does not permit

evidence about the basis for the belief. It is argued on behalf of the Director of Public Prosecutions that a contrary interpretation

would appear to defeat the purpose of the section partly on the basis that it might defeat informer privilege and partly on the basis

that in practice it might involve the admission of hearsay evidence. The second and alternative construction put forward by the

Director of Public Prosecutions is that the subsection at least authorises the giving of evidence about the basis for the Chief

Superintendent’s belief but not to the extent that it interferes with or defeats a legitimate plea of privilege.

11. Even though the first of those two alternative interpretations is strongly favoured by the Director of Public Prosecutions, I prefer

the second. Conceptually, and possibly in practice in some cases, evidence of the basis for the belief of the Chief Superintendent

might not infringe any protection of informers as it might not be based on informers. As the normal rights of an accused are being

infringed, it would seem to me that there must be a constitutional requirement that such limitation be kept to a minimum. It would be

disproportionate to adopt the interpretation of the subsection favoured by the Director of Public Prosecutions. I believe, therefore,

that the Director of Public Prosecutions’ alternative interpretation is the correct one.

12. I do not propose to discuss in any detail the weight to be given to the Chief Superintendent’s belief evidence and particularly the

circumstances in which more or less weight would be attached to his evidence. That has all been fully considered by the Court of

Criminal Appeal and by the Special Criminal Court itself. Like the Court of Criminal Appeal, I believe that the methodology of the

Special Criminal Court was correct. In this case, there was, at any rate, substantial evidence implicating the appellant in the offence

independently of the evidence of belief of the Chief Superintendent. This has been detailed in the judgment of the Special Criminal

Court and summarised in the judgment of the Court of Criminal Appeal.

13. It has been the practice apparently of the Special Criminal Court not to convict on the belief evidence alone. In my view, that

practice is commendable though not absolutely required by statute. There may be exceptional cases where the Special Criminal Court

in its wisdom would be entitled to convict on the belief evidence alone. Equally commendable is the practice of the Director of Public

Prosecutions of which the court has been informed, not to initiate a prosecution based solely on the belief evidence. These self-

imposed restrictions by the Special Criminal Court and by the Director of Public Prosecutions are with a view to ensuring a fair trial. In

this case, there was plenty of outside evidence and it was well within the discretion of the Special Criminal Court to convict the

appellant for the reasons given by the Court of Criminal Appeal. It is not necessary to cover that ground again.

14. Reference should, however, be made to a relatively recent decision of the Court of Criminal Appeal in Director of Public

Prosecutions v. Mulligan where in an unreported judgment of the 17th May, 2004, Keane C.J. who sat with Lavan J. and O’Leary J.

rejected a submission that no weight could be attached to “the bare belief” of the Chief Superintendent. A similar conclusion had

already been reached in another judgment of the same court delivered by Keane C.J. in Director of Public Prosecutions v. Redmond on

the 24th February, 2004.

15. I agree with the view taken by the Court of Criminal Appeal in this case that the balancing of the conflicting rights and interests

can only be determined by the court of trial. The Chief Superintendent’s belief has no special status but is merely a piece of

admissible evidence. As the Court of Criminal Appeal pointed out, although the Special Criminal Court was entitled to take into

account the fact that the Chief Superintendent refused to identify the basis of his belief, it was also entitled to take into account

that the appellant made a false statement to the gardaí and the other corroborating evidence of other witnesses particularly the

evidence of Mr. David Mooney which was accepted.

16. I would dismiss the appeal.