Court of Criminal Appeal refused leave to appeal conviction for IRA membership based on confidential police belief evidence.

THE COURT OF CRIMINAL APPEAL

[0144/2006]

Bill No. SP 6/05

Finnegan J.

Herbert J.

MacMenamin J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

AND

VINCENT KELLY

APPLICANT

Judgment of the Court delivered on the 6th day of December 2007 by Finnegan J.

The applicant was charged with an offence contrary to section 21 of the Offences Against the State Act 1939 as amended by

section 2 of the Criminal Law Act 1976 of membership of an unlawful organisation. Particulars of the offence were that the applicant,

on 7th June 2005, within the State was a member of an unlawful organisation, to wit an organisation styling itself the Irish Republican

Army otherwise Óglaigh na hÉireann otherwise the IRA. He was convicted before the Special Criminal Court. Having applied to that

court for a certificate that his case was a fit case to appeal, and such certificate having been refused, he now applies to this court

for leave to appeal against said conviction and against the sentence of five years imposed upon him.

The applicant proposes to rely upon ten grounds of appeal as follows:-

1. The learned trial judges erred in fact and/or in law in accepting the evidence offered by Chief Superintendent Kelly,

which was based on confidential information received, and formed the basis of a belief that the applicant was a member

of an unlawful organisation styling itself the IRA.

2. The learned trial judges erred in fact and/or in law in failing to enquire adequately or at all into the origins of the

confidential information relied upon by Chief Superintendent Kelly to base his belief that the applicant was a member of an

unlawful organisation styling itself the IRA.

3. The learned trial judges failed to explain in their judgment the process in which they engaged whereby they decided to

rely upon the belief of the Chief Superintendent to convict the applicant in circumstances where the Chief Superintendent

claimed privilege over the origins of his confidential information.

4. The learned judges erred in deciding to rely upon the evidence of belief offered by the Chief Superintendent without

explaining the weight they attached to the evidence of the Chief Superintendent, in view of the antiquity of the belief

and the claim to privilege made and attached to the evidence, which was used to convict the applicant.

5. The learned trial judges erred in law or in fact and/or in a mixture of law and fact in drawing adverse inferences,

pursuant to section 2 of the Offences Against the State Act 1998, from the manner in which the applicant answered

and/or refused and/or failed to answer questions material to membership of an unlawful organisation.

6. The learned trial judges erred in law or in fact and/or in a mixture of law and fact in failing to have any adequate regard

to the standard of proof required in a criminal trial.

7. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in failing to distinguish those

questions from which they drew an adverse inference pursuant to section 2 of the Offences Against the State Act 1998

and those questions from which the learned trial judges refused to draw an adverse inference.

8. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in finding that the circumstances

of the applicant’s arrest were capable of corroborating the other evidence offered by the prosecution and support of the

contention that the applicant was a member of an unlawful organisation and inconsistent with any other reasonable

explanation.

9. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in finding that the presence of

the applicant’s fingerprint on the inside of the rear or back of the van, was sufficient to connect the applicant to the

material which was recovered from the back of the van, in circumstances where the applicant was only ever observed as

a passenger in the van. The presence of the material in the back of the van was found by the learned trial judges to

corroborate the belief of the Chief Superintendent.

10. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in failing to address in their

judgment the submissions made by counsel for the applicant.

The applicant was arrested and charged with the offence in the following circumstances. On 7th June 2005 at about 10 p.m. three

uniformed Gardaí were travelling in an unmarked car on Malahide Road, Dublin. While stopped at a pedestrian crossing where they

could see into Marino Avenue they saw a man get into a black BMW motor car which had three other occupants. They followed the

BMW which appeared to be travelling in company with a white Opel Astra estate van. The BMW and the Opel performed a U turn near

Mount Temple School and shortly afterwards pulled into the side of the road. The applicant got out of the Opel and was standing at

the footpath. The BMW moved towards him but then sped off. Garda Gilmartin approached the Opel while his two colleagues in the

unmarked patrol car activated their blue light and pursued the BMW into an adjoining street where they stopped it. Garda Gilmartin

asked the applicant to get back into the Opel which he did but at the same time the driver opened the rear door of the same and a

man who was in the rear of the same got out, ran across the road, climbed the railings to Mount Temple School and escaped.

Pursuant to section 23(1) (A) of the Misuse of Drugs Act 1977 the Opel was taken to a Garda Station to be searched. The following

items were found in the van: a small canister of “mace” in the driver’s door, in the rear two balaclavas, a pair of black woollen gloves,

a handgun and another black woollen glove. The handgun was partially concealed under the black woollen glove, these items being at

the partition that separates the front and rear of the van and between the driver’s and passengers seats. The applicant was arrested

where the Opel was stopped also pursuant to section 23 of the 1977 Act. At 11.45 p.m. he was released from this detention and

arrested under section 30 of the Offences Against the State Act 1939 on suspicion of having committed a scheduled offence, being

an offence of possession of a firearm. In the course of his detention three interviews were conducted under the terms of the

Offences Against the State (Amendment) Act 1998 section 2.

In the course of his detention the applicant’s clothing was removed for forensic examination. Underneath his outer garment he was

wearing a t-shirt which had emblazoned on it “Óglaigh na hÉireann” together with an image of a number of men in combat gear

wearing balaclavas apparently discharging weapons into the air. Underneath the image was the legend “unbowed and unbroken”. On a

forensic examination of the Opel the applicant’s fingerprint was found on the inside of the back of van.

The grounds of appeal can be grouped together as follows:-

(a) Grounds one to four inclusive relate to the evidence of belief of Chief Superintendent Philip Kelly.

(b) Grounds five and seven relate to the applicant’s interviews conducted pursuant to the Offences Against the State

(Amendment) Act 1998 section 2.

(c) Ground six relates to the standard of proof applied by the trial court.

(d) Grounds eight and nine relate to the fingerprint evidence and material found in the van.

(e) Ground ten concerns the alleged failure of the court to consider a submission by counsel on behalf of the applicant

relying on the European Convention on Human Rights and Fundamental Freedoms Article 6(1) and Article 6(3)(d).

Grounds 1 to 4 inclusive

The Offences Against the State (Amendment) Act 1972 section 3(2) provides as follows:-

“Where an officer of the Garda Siochana, 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.”

Detective Chief Superintendent Philip Kelly gave evidence of his belief that the applicant was a member of an unlawful organisation,

the Irish Republican Army, otherwise known as Óglaigh na hÉireann, otherwise known as the IRA on 7th June 2005. The belief was not

based on any conduct of the applicant which led to his arrest for this offence nor was it based on the refusal of the applicant to

answer questions when questioned pursuant to the Offences Against the State (Amendment) Act 1998 section 2. The witness was

cross-examined and the witness said that he had formed the opinion approximately six years before the 7th June 2005 and that the

belief continued from that date and still continued after that date. He did not communicate the basis of his belief to the Director of

Public Prosecutions. His belief was based on confidential information available to him in respect of which he claimed privilege as, if he

disclosed the information, it would damage ongoing security operations against the IRA and would endanger life. Part of the

information was in the form of documents and contained in a file. The witness offered to produce the documentation in his possession

should the court wish to peruse the same.

The applicant’s submissions on these grounds were confined to this – there is no guide in law to assist the Special Criminal Court in

determining the weight to be attributed to evidence of belief where no information is available to the court as to the source or

sources of the information which grounds that belief.

Significant in this case is that Chief Superintendent Kelly offered to make the documents in his possession, which in part at least

formed the basis of his belief, available to the court: the applicant chose not to avail of this offer. The People (Director of Public

Prosecutions) v Kelly [2006] 3 I.R. 115 dealt with the issue of the weight to be given to belief evidence. Geoghegan J. dealt with the

issue as follows:-

“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 accused for the reasons given by the Court of Criminal

Appeal. It is not necessary to cover that ground again.

Reference should, however, be made to a relatively recent decision of the Court of Criminal Appeal in The People (Director

of Public Prosecutions) v Mulligan (Unreported Court of Criminal Appeal 17th May 2004) where Keane C.J., who sat with

Lavan and O’Leary JJ. rejected a submission that no weight could be attached to ‘the bare belief’ of a Chief

Superintendent. A similar conclusion had already been reached in another judgment of the same court delivered by Keane

C.J. in The People (Director of Prosecutions) v Redmond (Unreported Court of Criminal Appeal 24th February 2004).

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 the fact that the accused 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”.

In his judgment Fennelly J. stated the issue on the appeal was whether the fact that an accused person, who is prepared to give

evidence denying membership of an unlawful organisation, is denied the right to cross-examine the Chief Superintendent as to the

sources of his belief has had a fair trial. In the course of his judgment Fennelly J. conducted an extensive review of authorities not

just in this jurisdiction but also in the Supreme Court of the United States and the European Court of Human Rights. In the context of

an accused’s right to cross examine and access to confidential information being denied to him he had this to say:-

“I return to the particular circumstances of the present case. It is of crucial importance that there was quite extensive

evidence, other than the evidence of the Chief Superintendent, which convinced the Special Criminal Court that the

accused was a member of the IRA on the relevant date. The court said that it took into account the fact that the Chief

Superintendent had claimed privilege. It did not on the other hand, explain this remark any further. The court should, in

my view, have explained the weight, if any which it attached to the evidence of the Chief Superintendent, in view of the

claim to privilege. However in the particular circumstances of this trial, I do not think that there was any overall

unfairness … the matter might be quite different in a case where the evidence of the Chief Superintendent was the sole

plank in the prosecution case, where privilege had been successfully claimed and the accused had given evidence denying

the charge”.

As to the weight to be given to belief evidence the Report of the Committee to Review the Offences Against the State Act 1939–

1998 at p.123 states:-

“The effect of section 3(2) was neutralised in the wake of Ferguson, where, in practice, the Special Criminal Court

acquitted the defendant who had denied membership where the Chief Superintendent’s opinion represented the only

prosecution evidence. The Special Criminal Court also tended to acquit where the Chief Superintendent claimed privilege in

respect of the sources of his belief. But section 21 convictions were secured in cases where membership had been denied

on oath by the accused, even where the other supporting evidence might be regarded as equivocal”.

In O’Leary v The Attorney General [1993] 1 I.R. 102 it was submitted to the court that the effect of section 3(2) of the Act of 1972

was to shift the burden of proof to an accused person and require him to establish, once the evidence of belief is adduced, that he is

not a member of an unlawful organisation thus denying him of the presumption of innocence. Costello J. at p.112 giving judgment said

–

“I fail to see how this section affects in any way the plaintiff’s right to enjoy the presumption of innocence. What this

section does is to make admissible in evidence in certain trials statements of belief which would otherwise be inadmissible.

The statement of belief if proffered at the trial becomes ‘evidence’ by virtue of this section in the prosecution case

against the accused. Like other evidence it has to be weighed and considered and the section cannot be construed as

meaning that the court of trial must convict the accused in the absence of exculpatory evidence. The accused need not

give evidence, and he may ask the court to hold that the evidence does not establish beyond a reasonable doubt that he

is a member of an unlawful organisation. Should the court agree he must be acquitted.”

In The People (Director of Public Prosecutions) v Ferguson (unreported Court of Criminal Appeal 27th October 1975) the court said:-

“The subsection does not give any indication as to the weight to be attached to the belief of the Chief Superintendent,

nor does it in any way comment on the position in the event that there is no challenge to his belief. It is simply one piece

of evidence which is admitted, and must be considered having regard to all the other admissible evidence. This does not

in anyway affect the right of the applicant not to give evidence, or the principle that a decision not to give evidence is

not a factor to be taken into account against an accused person.

The fact remains that this was the only substantive evidence either for or against the guilt of the accused, and that this

evidence was not challenged. The court does not accept that the entry of a plea of not guilty in some way challenged

the evidence to be subsequently given, nor does the court accept the failure of the Chief Superintendent to state the

basis of his belief affected the validity of the evidence. It was always open to the applicant to cross- examine the Chief

Superintendent as to the basis of his belief, but in the absence of such cross-examination the court was left with only

unchallenged evidence”.

In The People (Director of Public Prosecutions) v Redmond (unreported Court of Criminal Appeal 24th February 2004) the court held

that the weight to be given to the evidence of the Chief Superintendent is entirely a matter for the court of trial.

Again in the course of The People (Director of Public Prosecutions) v Kelly at pp.134/135 Fennelly J. said:-

“A person may be convicted on the evidence of a chief superintendent alone. Where the chief superintendent is not

cross-examined at all and still less questioned as to the sources of his belief, and where no other basis is laid for

questioning the truth or cogency of his evidence, it is difficult to envisage any court deciding to acquit … put otherwise,

a court of trial is entitled to assume that an officer of the rank of chief superintendent will give evidence of his belief that

an accused person is a member of an unlawful organisation only when he is satisfied himself of this fact beyond

reasonable doubt. Hence even when that is only evidence, a court is entitled to act on it, in the absence of some

challenge or question sufficient to raise such a doubt”.

The view expressed by Fennelly J. in The People (Director of Public Prosecutions) v Kelly that the court should have explained the

weight, if any, which it attached to the evidence of the Chief Superintendent in view of the claim to privilege should be considered in

the light of the foregoing. It would be particularly appropriate that the court should explain the weight which attaches to the

evidence of belief where the only evidence relied upon by the prosecution is belief evidence and there is a denial on oath. Where as,

in the present case, there is no denial on oath and there is other evidence to support the prosecution case, the evidence of belief is

one ingredient in the prosecution’s case. The function of the court of trial is to weigh the cumulative evidence including the evidence

of belief and the denial on oath if any. That is what the court did in this case in relation to the evidence of the Chief Superintendent

and that evidence was accepted as correct and accurate. The court noted the following circumstances in relation to the evidence:-

(i) The belief was not associated with any of the events relating to matters which occurred on the date of arrest.

(ii) The belief was not associated with any actions or admissions made by the accused at that time.

(iii) The belief was not based on the questioning pursuant to section 2 of the Offences Against the State (Amendment)

Act 1998.

(iv) The court had regard to the Chief Superintendent’s evidence that he had held this view for some five or six years.

(v) The court had regard to the experience of the Chief Superintendent.

(vi) The court had regard to the demeanour of the Chief Superintendent in the witness box and the manner in which he

responded in cross-examination.

(vii) The court had regard to other circumstances which it considered as corroborating the Chief Superintendent’s

evidence and in particular answers to questions put to the accused under section 2 of the 1998 Act, the items found in

the Opel motor van and the accused’s fingerprint on the inside of the van.

(viii) In addition, although not mentioned in the judgment of the court there was the evidence of the garment the

accused was wearing described above and which would amount to corroboration of the Chief Superintendent’s evidence.

This court is satisfied that in the circumstances of this case the court of trial was entitled to accept the evidence of the Chief

Superintendent and to weigh and consider the same together with the evidence as a whole and to reach a conclusion. The Act does

not require that any special status should be given to the belief evidence and it is simply a piece of evidence to be weighed and

considered by the court of trial in conjunction with the other evidence where by itself it is insufficient to lead to a conviction. It is

open to that court to consider the belief evidence in conjunction with other admissible evidence. This court is satisfied that Fennelly

J. in his comments quoted above did not intend to require the court of trial to express the weight it attaches to belief evidence in the

form of a mathematical notation or other scale of values but rather that weight should be attributed to the same where there is

countervailing evidence such as a denial on oath. It was not necessary, in the circumstances of this case, to attribute weight to any

particular ingredient in the evidence the cumulative effect of which led to the applicant’s conviction.

Grounds 5 and 7

The Offences Against the State (Amendment) Act 1998 section 2 provides as follows:-

“2(1) Where in any proceedings against a person for an offence under section 21 of the Act of 1939 evidence is given

that the accused at any time before he or she was charged with the offence, on being questioned by a member of the

Garda Siochána in relation to the offence, failed to answer any question material to the investigation of the offence, then

the court in determining whether to send forward the accused for trial or whether there is a case to answer and the court

(or subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence may draw such

inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as

capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of

the offence solely on an inference drawn from such a failure.

(2) Subsection (1) shall not have effect unless the accused was told in ordinary language when being questioned what

the effect of such a failure might be.

(3) Nothing in the section shall, in any proceedings –

(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything

said in his or her presence relating to the conduct in respect of which he or she is charged, in so far as evidence

thereof would be admissible apart from this section, or

(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could

be properly drawn apart from this section.

(4) In this section –

(a) references to any question material to the investigation include references to any question requesting the

accused to give a full account of his or her movements, actions, activities or associations during any specified

period,

(b) references to a failure to answer include references to the giving of an answer that is false or misleading and

references to the silence or other reaction of the accused shall be construed accordingly.”

No issue arises on the appeal as to compliance with the formal requirements of section 2. The applicant’s first interview was dealt

with in evidence by Detective Garda John Barrett. In relation to questions directly enquiring as to whether or not he was a member of

an illegal organisation, the applicant replied denying membership. In relation to all other questions material to the investigation he

made no reply. He was asked as to who was the driver of the van, if the driver was one Maurice McDermott, how long he had known

Maurice McDermott, what reason he and Maurice McDermott had for being on the Malahide Road on the occasion, who owned the

Opel van, who was the third person in the van and to all these questions he made no reply. He was asked:

“I put it to you Vincent that you had this gun in your possession for the purpose of carrying out an operation on behalf of

the IRA otherwise Óglaigh na hÉireann, otherwise the Irish Republican Army. Have you anything to say to this?”

He made no reply. He was asked who supplied him with the gun and ammunition and when he received the same and again made no

reply. He made no reply to questions about the balaclava, the woollen gloves or the canister of mace. He was asked whether the

items found in the van belonged to Maurice McDermott or the third person in the van and again made no reply.

Evidence of the second interview was given by Detective Sergeant Donal Prenty. Again there was no issue as to compliance with the

formal requirements of section 2 of the 1998 Act. In answer to questions he denied membership of an unlawful organisation. In

relation to questions as to the third person in the van he made no answer. He was asked did he know the driver of the van and again

made no answer.

A third interview was also conducted by Detective Sergeant Prenty and again there was no issue as to compliance with the formal

requirements of section 2 of the 1998 Act. He was asked why he had the canister of mace in his possession, where did he get it and

what was its intended use and made no answer. He did not answer questions regarding the role of Maurice McDermott in the events

of the evening. He made no answer to questions in relation to the items found in the van. He did not reply to questions as to who

were the occupants of the BMW motor car and whether he knew them. The name of the driver of the BMW motor car was put to him

and he was asked did he know him and he made no reply. The names of the passengers in the BMW motor car were put to him and he

was asked if he knew them but made no reply. He was asked if he had any innocent explanations for his activities on the night he was

arrested and made no reply.

All the questions mentioned were material to the investigation of the offence with which the applicant was charged and he failed to

answer them. There were a great many other questions asked to which he did not reply and which to a lesser extent were relevant to

the investigation but relevant nonetheless.

The court of trial found that the accused failed to answer a large number of material questions.

The submission on behalf of the applicant is that the court failed to distinguish between questions which were material and other

questions put to the applicant in the course of these interviews. Further the court referred to two interviews only, that is the first

and second interviews, in the judgment.

This court is satisfied that the accused having failed to answer virtually all the questions put to him in the course of the interviews

and which questions were material to the investigation the court of trial was entitled to have regard to his failure to answer for the

purposes of section 2 of the Act of 1998. In the circumstances of this case it was unnecessary to identify the particular questions

which the court considered as material questions were clearly asked and were not answered. Different considerations might well apply

where answers were given to some material questions but not others and it might then be appropriate for the court to identify which

answers amounted to a failure to answer or which answers were false or misleading: however that is not the case here.

Ground 6

Having outlined the facts and its findings on the evidence the court concluded its judgment as follows:-

“Having regard to these facts the court is satisfied that the case has been proved and that the accused is guilty as

charged.”

On behalf of the applicant it is submitted that nowhere in the judgment is there a reference to that to “that most basic of criminal law

concepts: proof of guilt beyond a reasonable doubt.” This court is satisfied that had a jury been charged in those terms, assuming

that nothing else was said in the course of the charge as to the burden of proof, the conviction would be held to be unsafe. However

this is not the situation here. The court consisted of three judges each experienced in criminal law. It is unthinkable that they were

not aware of “that most basic of criminal law concepts” or that they would have misdirected themselves and failed to apply that

concept in the present case. This court is satisfied that in finding the accused guilty as charged the correct standard of proof was

applied. Notwithstanding the erroneous use of “satisfied” the court did not intend to convey that it had reached the conclusion on

guilt otherwise than on the correct legal standard of beyond a reasonable doubt. The omission to recite the appropriate standard

could be no more than an oversight.

Grounds 8 and 9

In the course of its judgment the court of trial had this to say:-

“The court further finds that the items which were discovered and found in the motor van, Opel Astra, registration number

00 LS 3880, namely, a Taurus pistol, a balaclava, two pairs of black gloves and a CS canister of gas are items which

taken together can be taken as corroborative of the Chief Superintendent’s belief. The court is satisfied that having

regard to the finding of the fingerprints of the accused on the inside of the back of the van, though he was a passenger

in front of the van, he had access to the back of the van.”

It was virtually conceded by counsel for the prosecution at the hearing that, while the applicant was in a van which contained the

firearm and other items which influenced the court of trial, the evidence available would not have been sufficient to procure a

conviction for possession of the firearm. The applicant’s submission in short is that in this context the circumstances in which the

applicant was arrested ought not to have been taken into account as part of the matrix of facts justifying the conviction of the

applicant. Further there was no evidence of a temporal relationship between the existence of the applicant’s fingerprint and the

presence of the firearm and other items in the van. In addition no fingerprints were found on either the firearm or the gas canister

associating the same to the applicant. For these reasons, it was submitted, the court of trial was in error in finding that the mere

presence of the applicant in proximity to incriminating items was incapable of amounting to corroboration of other evidence.

In the People (Director of Public Prosecutions v Kelly) at p 130 Fennelly J said:-

“It is obvious from the definition of an unlawful organisation and from common sense that such organisations are, in their

nature, secret and violent. It follows that it will be extremely difficult to produce direct evidence capable of sustaining a

prosecution.”

The respondent’s submission on these grounds is as follows. Whilst the benefit of the doubt must be given by the court in

circumstances where a piece of evidence gives rise to two potential inferences, this ignores the cumulative effect of circumstantial

evidence. Where circumstantial evidence is a feature it is, of course, possible to isolate each piece of evidence and suggest a

plausible innocent explanation. The court is not, however, required to be blind to the cumulative implausibility of innocence as an

explanation for the evidence. In the People (Director of Public Prosecutions) v Cahill and Costello [2001] 3 I.R. 494 Keane C.J. cited

with approval a passage from R v Exall [1866] 4 F&F 922 at p.929:-

“There may be a combination of circumstances, no one of which would raise a reasonable conviction or more than a mere

suspicion; but…taken together may create a conclusion of guilt…with as much certainty as human affairs can require or

admit of.”

The court is satisfied that each of the circumstances surrounding the applicant’s arrest considered in isolation, whilst of themselves

not capable of leading to a conviction, nonetheless form part of a matrix of facts to which the court was entitled to have regard

together with other evidence and all of which taken together would be sufficient for a jury properly directed to convict.

Ground 5

It was submitted to the Special Criminal Court on behalf of the applicant that the applicant’s rights under the European Convention on

Human Rights and Fundamental Freedom, Article 6.1 and 6.3(a) and (b) were infringed by reason of the admission of evidence of the

belief of the Chief Superintendent. The decisions of the European Court of Human Rights in Kostovski v Netherlands [1989] 12 E.H.R.R.

434 and Doorson v Netherlands [1996] 22 E.H.R. 330 were relied upon. Both these decisions were considered in detail in the People

(Director of Public Prosecutions) v Kelly. In the course of his judgment Fennelly J. said:-

“I believe that the claim of privilege made by the Chief Superintendent constituted an undoubted infringement of the

normal right of the accused to have access to the material which underlay the belief expressed. To that extent, it

constituted a restriction on the effectiveness of the right of the accused to cross-examine his two accusers and it had,

for that reason, the potential for unfairness.

On the other hand, counsel for the prosecutor has pointed to a number of compelling circumstances to justify the course

of action which has been adopted. Firstly, the exceptional resort to the evidence of the Chief Superintendent applies only

in the case of organisations which, in their nature, represent a threat, not only to the institutions of the State, but to

individuals who are prepared quite properly to cooperate with the State in securing the conviction of members of such

organisations. This makes it possible to justify some restriction on direct access on behalf of the accused to the identity

of his accusers. Secondly, the legislature has allowed such evidence to be given by members of An Garda Siochána of

particularly high rank, who can be presumed to have been chosen for having high standards of integrity. Thirdly, the

procedure applies only while there is in force a declaration that ‘the ordinary courts are inadequate to secure the

effective administration of justice’. The offence is a scheduled one; thus the cases will be heard only by the Special

Criminal Court, a court now composed of judges who must be presumed to apply only the highest standard of fairness. I

also agree with Geoghegan J. that it is relevant that the section enjoys a presumption of constitutionality. Any restriction

on the right to cross-examine, which it implies, must be limited to the extent that it is strictly necessary to achieve its

clear objectives. I believe that the circumstances I have mentioned constitute sufficient justification for its introduction,

while, at the same time, demonstrating a concern to respect such necessary limitations.”

Counsel for the applicant quite properly referred the Special Criminal Court to the decision of the Supreme Court in The People

(Director of Public Prosecutions) v Martin Kelly. This court is satisfied that the issue raised on the European Convention on Human

Rights and Fundamental Freedoms had been determined by the Supreme Court in that case and that its decision was binding on the

Special Criminal Court. In these circumstances, while the judgment of the Special Criminal Court is silent on this issue, it is quite clear

that it would not have been open to that court to uphold the submission. As with the Special Criminal Court, this court is bound by

the decision of the Supreme Court in The People (Director of Public Prosecutions) v Kelly.

Conclusion

Having regard to the foregoing the application for leave to appeal is refused.