Certificate of appeal refused as the point of law did not meet the statutory test for exceptional public importance.

THE COURT OF CRIMINAL APPEAL

CCA No. 35/10

O’Donnell J.

de Valera J.

Gilligan J.

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

And

Terry McConnell

Appellant/Applicant

Judgment of the Court delivered on the 30th of July, 2013, by O’Donnell J.

1 This is an application on behalf of Terry McConnell for a certificate pursuant to s.29 of the Courts of Justice Act 1924, as amended,

that his case is a fit one for the grant of a certificate to appeal to the Supreme Court from the decision of this Court delivered on the

25th of July 2012 on the grounds that the said decision involves a point of law of exceptional public importance and that it is in the

public interest that an appeal should be brought to the Supreme Court.

2 The point sought to be certified is framed in the notice of motion as follows:

“Having regard to how the Special Criminal Court dealt with the defendant’s request for disclosure of material from the

prosecution and the prosecution’s claim of privilege on policy grounds whether the trial of the applicant was fair and

compliant with the requirements of Article 6 of the European Convention on Human Rights and Fundamental Freedoms?”

The judgment of the 25th of July 2012 sets out some detail about the background facts and the arguments made on behalf of the

parties. In this application, it is perhaps sufficient to observe that in the early stages of the hearing the solicitors on behalf of the

then accused belatedly sought disclosure from the prosecution. The prosecution responded by denying that there was any material

which had not been disclosed. Subsequently, in the course of the trial a member of the Garda Síochána, in giving evidence, was

cross-examined as to whether named persons were informers. Having initially, and perhaps understandably, denied knowing anything

about the identity of any informers, when the issue was pursued, the member of the gardaí claimed privilege, a claim which was

allowed by the court, and was not challenged on behalf of the accused. Instead a position was taken at the close of the prosecution

case that the making of this claim rendered the trial unfair and contrary to Article 6 of the European Convention on Human Rights and

Fundamental Freedoms.

3 In the first case it must be said that this Court does not consider that the points sought to be certified are in an appropriate form

for certification. The reference to “how the Special Criminal Court dealt with the defendant’s request for disclosure for material … and

the prosecution’s claim for privilege on policy grounds …” does not identify with any precision the issue which is said to arise. Even

more surprising perhaps is the fact that the question raised is whether the manner in which the Special Criminal Court dealt with these

matters was “fair and compliant with the requirements of Article 6 of the European Convention on Human Rights and Fundamental

Freedoms”. The court had gone to some lengths at paragraph 22 of the judgment and thereafter to point out that “the claim … lacks

precision both as to the precise aspect of the procedure challenged and the manner in which the Convention claims to be

maintained”. Furthermore, it was pointed out in the same paragraph that the Convention is not part of Irish law by its own force but

only in accordance with the terms of the European Convention on Human Rights Act 2003, and that accordingly, it is necessary in the

words of one commentator to “put firmly behind us a facile understanding that the ECHR is incorporated at a sub-constitutional level

and move instead towards a very deliberate parsing of the sections of the 2003 Act in order to account in very rigorous terms, for

what that incorporation entails”. It is surprising therefore, to say no more, that the application for this certification of a ground of

appeal pursuant to s.29 exhibits all the same frailties as were identified in the original appeal.

4 These difficulties might indeed be sufficient to reject the applicant’s application. However, it is perhaps desirable to address what

appears to be the underlying contention in this case. That appears to be the point , identified at paragraph 22 of the judgment, that

the applicant’s case amounts to a contention that the practice referred to in the case of D.P.P. v. Special Criminal Court [1999] 1 I.R.

60 , which contemplates the possibility of the court itself inspecting documents in order to satisfy itself that privilege has been

properly claimed, is incompatible with Article 6 on the basis that the court may be exposed to material relevant to a matter if they

have to decide, which, if the claim is upheld, the defence will not see. Even taking a very generous view of the point sought to be

certified, it is apparent that this cannot be a ground of appeal which would satisfy the jurisprudence which has built up under s.29 of

the Courts of Justice Act 1924. In particular, it fails to satisfy the most fundamental requirement of being a point of appeal that is a

point which if successful, would lead to the overturning of the verdict. Even if, for argument’s sake, it was determined that a practice

of a court of trial inspecting documents over which privilege is claimed is, or could be, incompatible with the Convention, that would

not result in the allowing of Mr McConnell’s appeal in this case for the simple and unavoidable reason that the procedure was not

invoked in this case. The claims that no relevant documents were required to be disclosed, and the subsequent claim that information

in relation to the identity of an informer was privileged, were not challenged in the proceedings. Furthermore, the point was not

reached where the court was invited to consider any documents. Lurking in the applicant’s arguments was a suggestion that the issue

was not pressed at the trial because a procedure which the applicant regarded as incompatible with the provisions of the Convention

as introduced into Irish law would have been adopted. That argument fails on at least two grounds. First, it is the obligation of a

party who contends for a proposition to at least advance it, and, if that argument is rejected, to then appeal the conclusion. Put

simply, this applicant cannot contend that his trial was unfair by reason of the application of the procedure contemplated in the case

of D.P.P. v. The Special Criminal Court when that procedure was not in fact adopted. Second, the applicant’s suggestion that any

such application was pointless, or bound to result in the impugned procedure, fails when it is recognised that the applicant himself

relies on the fact that in that case it was contemplated at an earlier stage that a separately composed chamber of the court might

consider the issues as to privilege, but that was not pursued for logistical reasons. In other words, it was not inevitable either that

the trial court would have to adopt the procedure now complained of, or, that if it was adopted, the Applicant would not have been

entitled to make submissions thereon, and if necessary, contend both at trial and appeal that his trial was in fact (rather than theory)

rendered unfair. Accordingly the issue sought to be certified in this appeal fails to satisfy the minimum requirement that it state a

ground of appeal in this case: even if this Court were to accept the argument implicit in the application it could not avail this

applicant.

5 Neither this decision nor the decision of this Court on the applicant’s appeal should be taken as addressing, still less resolving, the

question of the appropriate procedure to be adopted in any particular case in a trial before the Special Criminal Court. It is sufficient

to observe that the applicant in this case falls far short of the relevant test for certification of a point of appeal under s.29 of the

Courts of Justice Act 1924, and accordingly the application will be dismissed.