Court of Criminal Appeal refused leave to appeal on Article 6 fair trial grounds regarding undisclosed material. The court held the trial judges' findings were correct and no exceptional public importance existed. The application for a certificate to the Supreme Court was dismissed.

THE COURT OF CRIMINAL APPEAL

243/04

Macken J.

Budd J.

de Valera J.

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

KENNETH DONOHUE

APPLICANT

Judgment of the court delivered on the 26th October 2007 by Macken, J.

This is an application for a certificate for leave to appeal made pursuant to the provisions of S.29 of the Courts of Justice Act 1924 in

respect of a question which the applicant wishes to have certified to the Supreme Court for its opinion, arising out of the decision of

this court made on the 28th November 2006 by which this court rejected his application for leave to appeal against conviction.

On the 18th November 2004 the applicant and a co-accused, Niall Binead, were convicted by the Special Criminal Court of the offence

of membership of an unlawful organization, namely the IRA, after a hearing which lasted several days, and upon conviction, the

applicant was sentenced to four years imprisonment. From that conviction, he lodged an application for leave to appeal against

conviction and sentence. The hearing of that application was adjourned on the basis that the parties considered the judgment in a

case, which had already referred to the Supreme Court on an analogous question, would be likely to be of relevance to the outcome

of the applicant’s application for leave to appeal. By a decision of this court handed down on the 28th November 2006, the application

for leave to appeal against conviction was refused on all of the grounds raised.

By Notice of Motion dated the 13th March 2007 application was made to this Court for a certificate for leave to appeal to the

Supreme Court pursuant to Section 29 of the Courts of Justice Act 1924 (“the Act of 1924”). On this application, it is submitted that

a single question ought to be certified to the Supreme Court, in the following terms:

“Was the receipt and examination of material concerning the Appellant/Accused, of which neither the Appellant nor his

advisers have knowledge or notice, consistent with the State’s obligation to provide a fair trial pursuant to Article 6 of the

European Convention on Human Rights and Fundamental Freedoms and Article 38 of the Constitution of Ireland?”

Section 29 of the Act of 1924, in the version in force at the relevant date, reads as follows:

“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be

final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify

that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that

an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the

decision of which shall be final and conclusive.”

By way of preliminary point the Court recalls that its decision of the 14th July 2006 was one refusing leave to appeal, based on the

Court’s finding that none of the grounds upon which leave to appeal was sought was established. On its face, the language of Section

29 of the Act of 1924 appears to provide for the possibility of a Certificate for leave to appeal against such a refusal, provided that

the decision involves a point of law of exceptional public importance which the Court considers should be referred to the Supreme

Court. While there was fairly wide ranging argument relating to the contended for grounds of appeal, the decision of this court was

and remains one refusing leave to appeal.

There are, effectively, two strands to the argument of counsel on behalf of the applicant. Firstly he contends that even if the

decision of the Supreme Court in DPP v Kelly [20060 ILRM 321, is of some relevance, which he does not accept, it does not lend itself

to the conclusion that there is no breach of Article 6 of the European Convention on Human Rights, guaranteeing the accused a fair

trial, because the Supreme Court did not consider the subject matter of the question now proposed. Moreover, the Supreme Court in

its judgment made it clear, it is submitted, that the trial court must take all measures possible to ensure that a fair trial takes place,

and that even if some restrictions against disclosure of information are to be permitted, these restrictions must be the least onerous

restrictions possible.

Further, it is submitted that, according to the jurisprudence of the European Court of Human Rights, and contrary to what occurred in

the present case before the trial court, the applicant was entitled to know the basis for the opinion or belief of the Chief

Superintendent, and the prosecution had failed to furnish this information. The Chief Superintendent of An Garda Siochana, a witness

at the trial, had invoked privilege against disclosure of information on the grounds that to disclose the same would, inter alia,

endanger life. The information sought therefore could not be elicited from that witness by means of cross-examination of the witness.

According to counsel for the applicant, the applicant’s entitlement to disclosure of the information upon which the Chief

Superintendent based his opinion or belief stems from obligations on the State flowing from Article 6 of the Convention, as interpreted

by the European Court of Human Rights. Finally, counsel further argues that the trial judges were not entitled to and indeed were

prohibited by the jurisprudence of that Court from examining documents upon which the witness based his opinion or belief, since

according to the jurisprudence of the European Court of Human Rights, that function cannot be carried out by the judges who

determine the guilt or innocence of an accused but rather only by a judge(s) who is independent of that decision making task. As part

of this latter argument counsel for the applicant also contends that in any event the trial court could not, without infringing Article 6

of the Convention, examine documents for the purposes for which they did this in the present case, which was to determine if the

opinion or belief of the Chief Superintendent was reliable, as this was, in effect, to determine the guilt or innocence of the applicant

by reference to material which did not form part of the trial at all. The only legitimate basis upon which the material could be

reviewed, and that by a judge independent of the trial court, was to ascertain whether there was anything in the material which was

or might be of assistance to an accused in his defence.

In support of these arguments, counsel for the Applicant invoked several judgments of the European Court of Human Rights, to which

reference will be made later in this judgment.

Counsel for the respondent argues that the approach adopted by the trial judges was in line not only with the jurisprudence of the

Supreme Court, citing Ward v Special Criminal Court [1994] 1 IR 60, but also with several decisions of the European Court of Human

Rights.

In its judgment of the 28th November 2006 this court found that the restriction on the ability of the defence to cross examine the

chief superintendent as to the sources for his belief was not, ipso facto, a failure to comply either with Article 38 of the Constitution

or with Article 6 of the Convention, and that the applicant had not made out a case that he was entitled to appeal his conviction on

such grounds. The court had regard, inter alia, to long standing jurisprudence and in particular also to the recent decision of the

Supreme Court in DPP v Kelly, supra. The judgment in that case was delivered consequent upon a question certified to that court

pursuant to S. 29 of the Act of 1924. The question posed in the above case was in the following terms:

“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, in a charge of membership of an unlawful organization before the Special Criminal Court.”

For the purposes of this judgment, it will be seen that the question raised in that case, while somewhat different to that now sought

to be certified in the present application, and while the question referred only to the provisions of Article 38 of the Constitution,

nevertheless in all such cases – and there have been others – the question raised is as to whether, having regard either to the

provisions of the Constitution or to the provisions of Article 6 of the Convention, a question of law of exceptional public importance

ought to be certified to the Supreme Court. To that extent, the judgments in the Supreme Court, both the majority judgment and the

assenting judgment, in DPP v Kelly, supra., and the more recent decision of this court in DPP v Matthews, unreported, CCA, 29th

March 2007, are of assistance in determining the issue now before this court.

In DPP v Kelly, supra., the Supreme Court found that there was no breach of the right to a fair trial guaranteed by Article 38 of the

Constitution by reason of the inability of the defence to cross-examine the garda witness as to his sources. In that case, in the

separate assenting judgment of Fennelly J. there is also a lengthy analysis of the jurisprudence of the European Court of Human

Rights on Article 6 of the Convention. While therefore the majority judgment of the Supreme Court did not make any findings on the

jurisprudence in question – presumably because it was not necessary in light of the precise question posed, and its purely

Constitutional context (the provisions of the Convention had not, at the relevant date, been adopted into Irish law) - nevertheless

this Court, in the case of DPP v Matthews, supra., had an opportunity to consider the lengthy analysis of the jurisprudence, and the

appropriate conclusions to be drawn therefrom, set out in the judgment of Fennelly, J. That analysis and those conclusions have not

been in any way altered or eroded since the delivery of the judgment in DPP v Kelly, supra.

This court has verified that, in the case of DPP v Kelly, supra., the legal submissions filed both on behalf of the Appellant and on

behalf of the Respondent relied, inter alia, on the Convention and on the case law of the European Court of Human Rights, in

particular cases relating to Article 6 thereof. The scrutiny of this case law, as found in the judgment of Fennelly, J. is, having regard

to all of the foregoing, a cogent analysis upon which this court was fully entitled to rely in coming to its view as to whether the

Applicant had raised grounds sufficient for the purposes of persuading this court to grant him leave to appeal.

The issue which now arises for consideration is whether the question now posed should be referred to the Supreme Court on the basis

that the decision involves a point of law of exceptional public importance, and whether it is desirable in the public interest that an

appeal should be taken to the Supreme Court, given that the purpose of the S.29 is essentially appellate in nature and is for the

purpose of doing justice to an accused in a particular case.

In this application, it is not submitted on behalf of the applicant that the correct position in law under the Convention, or pursuant to

the case law of the European Court of Human Rights, is different to that set forth in the judgment of Fennelly, J. Nor is it contended

that his analysis is in any way flawed in its interpretation of the case law of that Court invoked or cited. Nor is it suggested that

there is relevant case law which would in any way undermine the analysis made, or the findings in his judgment arising from that

analysis. Nor, finally, is it submitted that the fundamental guarantee to life assured by Article 2 of the Convention, being the basis,

inter alia, upon which the claim to privilege was invoked by the garda witness in the course of the trial, is, according to any case law

of the European Court of Human Rights, to be subsumed in all circumstances to the right in an accused to cross-examine a witness in

accordance with the protections accorded by Article 6 of the Convention, and indeed this is accepted by counsel for the applicant.

What is argued on behalf of the applicant is that the question which now arises is not one actually considered in the analysis found in

the judgment of Fennelly J. On the question proposed, the basic argument is as follows. The State, through the prosecutor, is obliged

to ensure that all trials, including that in the present case, are in all respects fully compliant with the provisions of Article 6 of the

Convention, or at the very least, not in conflict with the guarantees found therein. There is no dispute on this point by the Director of

Public Prosecutions. Counsel for the applicant argues however that the viewing and consideration of the material in question by the

trial court in the present case is not in compliance with Article 6 for the reasons set forth above. No particular mechanism is proposed

on behalf of the applicant as being a mechanism which would comply with Article 6, and on the contrary it is submitted that it is for

the prosecution to adopt a mechanism which is in conformity with that Article. In the present case it is contended that the viewing

and consideration of the material is wholly non conforming with Article 6, in particular because that material is or could be

determinative of the guilt or innocence of the applicant as accused. It is submitted that, for the reasons argued, this material must

either be withdrawn by the prosecution or shown to the accused or to his legal advisers.

This court is not satisfied that the applicant’s arguments are supported by the jurisprudence of the European Court of Human Rights,

or by the case law relied upon by the applicant himself. In Rowe v United Kingdom, 30 EHRR 1, the court held that there had been a

breach of Article 6 of the Convention. However, tellingly, the court found, inter alia, (a) that the entitlement to disclosure of relevant

evidence is not an absolute right, and that in any criminal proceedings, there may be competing interests, such as national security or

the need to protect witnesses at risk of reprisal, which must be weighed against the rights of the accused; (b) in cases where

evidence is withheld from the defence in the above circumstances, it is not the role of the European Court of Human Rights to decide

whether or not such non-disclosure was strictly necessary. Instead the Court’s role is to ascertain whether the decision -making

procedure or process which was applied, did comply, as far as possible, with the requirements of adversarial proceedings; (c) that in

the Rowe cases, there was a failure by the prosecution to lay the evidence in question before the trial judge to permit him to rule on

the question of disclosure and this deprived the applicant of a fair trial; and (d) the particular facts in that case differentiated it from

the case of Edwards v United Kingdom 15 EHRR 417. (emphasis added). Therefore, this case does not suggest that the procedure

adopted by the trial judges of receiving and considering documentary material is contrary to or not in compliance with Article 6 of the

Convention.

The next case invoked is Jasper v United Kingdom, 30 EHRR 441. In that case, the principles set out at (a) and (b) in Rowe v United

Kingdom supra., are repeated. Further the court found that the fact that the need for disclosure was at all times under assessment

by the trial judge provided a further important safeguard, in that it was the judge’s duty to monitor throughout the trial the fairness

or otherwise of the withholding of the evidence. It recognized that the trial judge held a supervisory role in determining the balance

between the competing rights of the defence and of public interest immunity in that case. The court found that there had been no

breach of the provisions of Article 6 of the Convention by the failure to disclose to the defence certain material in the hands of the

prosecution, and distinguished the case from the situation where the executive made the decision not to disclose and there was no

overriding control by the courts of that decision. (emphasis added). The principles enunciated in that case do not support the

applicant’s contention that the receipt and consideration by the trial judges of the material in question was, in the present case, in

breach of Article 6, and the decision is, in reality, to the contrary.

The decision of the European Court of Human Rights in the case of Edwards v United Kingdom, supra., was also invoked on behalf of

the application. This is a decision delivered in 1992, which turned very much on the peculiarities of the case. It does not bring the

matter further.

Although the applicant invokes the House of Lords decision in R v H & Ors, [2004] 2 AC., which refers in detail, inter alia, to decisions

of the European Court of Human Rights, that case concerned only a very narrow issue, namely whether the decision to appoint a

special counsel was prematurely made by the trial judge, and that court found that it had been so made. The House of Lords

recognized the basic principle, well established in the jurisprudence of the courts of this jurisdiction also, that, as a rule, disclosure of

all relevant material is essential and mandatory. The judgment also recognized that the institutions and procedures established to

ensure that a criminal trial is fair vary almost infinitely from one jurisdiction to another, the product of historical, cultural and legal

traditions (of differing natures). Furthermore, specific reference was made to the acceptance by the European Court of Human Rights

that some operations must be conducted secretly if they are to be conducted effectively, as in Klass v Federal Republic of Germany

[1978] 2 EHRR 214. Particular recognition was given to the role of the European Court of Human Rights in supervising the procedures

adopted by a national court to ensure the fairness of a criminal trial. Of particular assistance is the statement by the House of Lords

at paragraph 33 of its decision that:

“It is entirely contrary to the trend of Strasbourg decision-making to hold that in a certain class of case or when a certain

kind of decision has to be made a prescribed procedure must always be followed. The overriding requirement is that the

guiding principles should be respected and observed, in the infinitely diverse situations with which trial judges have to

deal, in all of which the touchstone is to ascertain what justice requires in the circumstances of the particular case.”

This court considers that this statement of principle is one wholly apt to be employed in the present application when reviewing the

issue as to whether there is a point of law of exceptional public importance which it is desirable in the public interest to refer to the

Supreme Court for its opinion.

Finally, the court also considers it appropriate to cite the following finding of the House of Lords in its conclusion, namely, that:

“if material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to

disclose it. For this purpose the parties’ respective cases should not be restrictively analysed. But they must be carefully

analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges

are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations

and then seek far-reaching disclosure in the hope that material may turn up to make them good.”

It will be recalled that in the present case the defendants disclosed and adduced no specific or any positive defence. That of course

is not a matter which should or can be held against the applicant, but it certainly does make the task of any trial judge assessing

material from the point of view of a wholly silent or specific defence more difficult. Trial judges must nevertheless scrutinize the

material with a view to seeing whether it might undermine the case of the prosecution or support or assist the defence in some way.

It is not necessary, in this court’s opinion, to consider individually, the other cases including one from the United States invoked on

behalf of the applicant in any detail, as they do not add to the arguments propounded.

Having regard to the foregoing principles and statements, it is necessary to consider whether the procedure actually adopted by the

trial judges in the present case, was such that it raises a legal question of exceptional public importance within the ambit of the

Constitution and/or of the Convention, in light of the jurisprudence referred to. The three trial judges heard all the legal arguments

invoked by the parties in the course of the trial on the question whether the information (whether in documentary or other form)

should be disclosed to the defence, or whether, in the absence of such disclosure, the prosecution was obliged to withdraw the

witness whose opinion was being tendered, and not be permitted to rely on his evidence. The trial judges considered that (a) if no

enquiry whatsoever was made into the basis for the Chief Superintendent’s belief, there might be an imbalance in the trial in favour of

the prosecution and an absence of “equality of arms” which could be interpreted as a lack of fairness insofar as the accused is

concerned, and (b) that Article 6 of the Convention, as adopted into Irish law, augments the traditional rights of an accused person

in the course of trial, in that it is now the law that one of the minimum rights vesting in an accused is to examine and have examined

witnesses against him, including in the present case the right to have Chief Superintendent Kelly examined with regard to the basis for

his belief. This Court does not make any findings on the correctness of these findings or observations, it not being necessary to do so

in the present case. They formed a valid basis for the approach taken by the trial judges to the material in question.

While recognizing that informer privilege and state security are good grounds upon which a witness may not be compelled to disclose

the identity of persons who are the sources of his belief or opinion, or when such disclosure would otherwise endanger state security,

the trial judges considered that, in line with the requirements of Article 6 of the Convention, some enquiry should be made with regard

to the basis for his belief, and having regard to the decision in the case of DPP v Special Criminal Court supra., the trial court

determined that it was both entitled to and should review the documentation which the witness asserted was the basis for his belief,

and should do so irrespective of the wishes of the defence.

It duly did so. It is the view of this court that such an approach to the task of ensuring a fair trial was within the ambit of the case

law of the Supreme Court and also of the European Court of Human Rights. Indeed it was an approach clearly within the ambit of the

case law of the latter court, which requires that the withholding of any such documentation must at all times remain within the

supervisory control of judges themselves. The trial court, having considered the documentation, found that it constituted adequate

and reliable information upon which the witness could legitimately form his opinion, and that there was nothing in any of the files

which, in the view of the court, would assist the defence in proving the innocence of their clients, including the applicant. That

conclusion was reached notwithstanding that no positive defence was put forward or disclosed by the applicant.

Counsel for the applicant submits that the first of these findings of the trial judges is an impermissible finding, as it constitutes a

review of material which is or may be determinative of the guilt of the applicant. In the opinion of this Court, this is not a correct

approach to or classification of the information or of the trial judges’ finding. The trial judges were here considering whether the Chief

Superintendent’s evidence, which was belief or opinion evidence, should be admitted in the course of trial without cross-examination

as to its source, once privilege, based on the safety of the life of others, was invoked. In weighing up the value of that belief

evidence the trial judges had no regard, and stated that they had no regard, for the material which they had seen. As is clear from

the decision in R v H & Ors, supra., material which does not damage the prosecution or assist the defence, does not have to be

disclosed. It appears abundantly clear from the examination made by the trial judges that, in their opinion, and the correctness of this

has not been challenged, there was no such material or information in the documentation examined. Undoubtedly, if the material

examined had disclosed no basis or even a questionable basis for the belief evidence, this would have been a matter helpful to the

defence or a matter undermining the prosecution and would have led to a different finding. Nor did the applicant seek to have this

court examine or consider the documentation in question to ascertain whether, in the exercise of the above described process, the

trial judges had misdirected themselves in respect of the documents, or the material contained therein.

Nor was the information “determinative” of the issue as was alleged by counsel on behalf of the applicant. On the contrary, even if

there was information, the trial judges determined that they would not convict either the applicant or his co-accused, based only on

the evidence of the Chief Superintendent, once admitted, but would convict only if that evidence was supported or corroborated by

other evidence. It seems clear to this court that such an approach of not convicting on the basis of the Chief Superintendent’s

evidence, still less on the basis of anything appearing in the documentation examined by the trial judges as part of their monitoring

procedures, could not constitute the information in the documents as being in any way “determinative of the issue”, and was also the

least possible interference with the applicant’s right to a fair trial.

Having regard to the foregoing findings, this court concludes that the applicant has not made out a case that its decision of the 26th

November 2006 involves a point of law of exceptional public importance or that it is desirable in the public interest that an appeal

should be taken to the Supreme Court pursuant to Section 29 of the Courts of Justice Act 1924.

The application is, in the circumstances, refused.