Court of Criminal Appeal dismisses appeal against conviction for unlawful organisation membership based on silence and unexplained items.

COURT OF CRIMINAL APPEAL

[C.C.A. No. 3, 4 & 5 of 2011]

O’Donnell J.

Birmingham J.

Hogan J.

Between:

The People at the Suit of the Director of Public Prosecutions

Respondent

And

Desmond Donnelly, Gerard McGarrigle and James Murphy

Appellants/Accused

Judgment of the Court delivered on the 30th day of July, 2012, by O’Donnell J.

1 On the 24th of November, 2010, the appellants herein were convicted by the Special Criminal Court of a charge of membership of an

unlawful organisation contrary to s.21 of the Offences Against the State Act 1939 as amended by s.48 of the Criminal Justice

(Terrorist Offences) Act 2005. The appellants were three of four men arrested after a car in which they were travelling was stopped

at a garda checkpoint operating in the vicinity of Oldtown Bridge, Oldtown, Letterkenny, County Donegal, in the early hours of Sunday

the 22nd February, 2010. The fourth passenger in the vehicle was not charged.

2 The background facts are set out succinctly in the judgment of the Special Criminal Court as follows:

“Background:

It is the prosecution case that on the night of February 2010 Superintendent Vincent O’Brien who was the officer in

charge of Letterkenny Garda Division, was on duty at Letterkenny Garda Station when he received confidential information

for what he described as “a reliable source” to the effect that dissident republicans were planning to commit a “tiger

kidnapping” or a robbery in the Letterkenny area on Sunday the 21st February 2010. As a result of that, he called a

number of his staff to his office and briefed Superintendent Michael Finnan, who was the superintendent on call for that

weekend. Also present at that meeting were Detective Inspector Kevin English and Detective Sergeant Michael Carroll.

They were informed of the information and Detective inspector English was directed to prepare an operational order or

briefing document. That order was for a two phase operation. Phase one was to be a covert and phase two was to be

overt. It was directed that a number of check points be established in the overt stage of the plan, around the town of

Letterkenny. Superintendent English said that the information that he had received that named members of Óglaigh na

hÉireann, namely the three defendants and a number of others were to travel to Letterkenny on that Sunday to conduct

that “tiger kidnapping” or robbery. He was supplied with details of a number of cars that might be used in the operation.

He had no information as to the intended target.”

It should be stated at this point that these matters emerged in evidence because they were relevant to the question agitated at the

trial as to the lawfulness of the arrest of the accused. The judgment continues:

“As part of that operation a garda check point was set up outside Letterkenny, in an area called Oldtown. The car

was stopped at about 12.30 am on the 22nd of February 2010. It was a dark coloured Mercedes with four

occupants. They were asked about their identity and when it was ascertained that, in particular, the identity of the

driver was Mr Donnelly, one of the accused, each of the men was informed that they would be detained for the

purposes of a search under s.30 of the Offences Against the State Act aforesaid. A cursory brief inspection of the

car revealed certain items in the boot comprising cable ties. Each of the four men including the three accused were

arrested, pursuant to s.30 of the Offences Against the State Act aforesaid.”

It is necessary here to interpolate that the men were arrested on suspicion of the offence of membership of an illegal organisation

contrary to s.21 of the Offences Against the State Act 1939.

The judgment continued:

“Subsequently there was full search of the car and this revealed that there were a number of further items in it,

including what appeared to be an imitation fire arm in the left rear foot well, four pairs of gloves three of which were

black latex gloves, a hat described as a “beanie” hat, the aforesaid cable ties of which there were nine, and a

number of black bin liners.”

“Each of the accused were required to answer questions pursuant to s.2 of the Offences Against the State Act

aforesaid, and it is alleged that each failed to answer a number of material questions put to them thereunder.”

3 In relation to the accused Gerard Donnelly he was interviewed on seven occasions during his detention following arrest. During five

of the interviews the gardaí invoked the provisions of s.2 of the Offences Against the State (Amendment) Act 1998. For the most

part on each occasion and to each question, the appellant refused to answer, and indeed said nothing. However, on two occasions

he did speak. In interview three on the first day of his detention he said “I wish to make a statement, I was in Letterkenny with

friends. I have been accused of membership of an illegal organisation; I am not and have not been involved in any illegal activity; I am

not associated with, or a member of any illegal organisation”. At interview five, and after an interview in which he had been shown

various items recovered from the car, he said “regarding the last interview, I know nothing about any article shown to me. Any DNA or

anything after is pure accidental”. In the case of the appellant Jim Murphy, he was interviewed on eight occasions and on each

occasion and to each question the appellant did not answer. Finally, in relation to Gerard McGarrigle, in his first interview he was

asked a number of questions to which he too replied. Those replies included a denial of I.R.A. membership and answers in relation to

movements that night. In respect of the following five interviews however s.2 of the Offences Against the State (Amendment) Act

1998 was invoked and Mr. McGarrigle was asked a large number of detailed questions concerning his movements that night and the

objects found in the car and he too refused to answer any of those questions.

4 Chief Superintendent Michael O’Sullivan gave evidence of his belief that the appellants were members of an unlawful organisation

styling itself Óglaigh na hÉireann otherwise known as the Irish Republican Army otherwise known as the I.R.A., and that each

appellant was a member of that organisation on the 22nd February, 2010. Chief Superintendent O’Sullivan had 30 years police

experience. He had experience as an intelligence officer based with Europol in the Hague dealing with organised crime intelligence,

intelligence exchange and working in the security side of that organisation. He had been involved with crime and security from 1995 to

the end of 2002 and he was responsible for the implementation of covert human intelligence source management systems in the

organisation, in the aftermath of the Morris Tribunal report. In relation to his belief, he did not base that belief on any matter relating

to the arrest of the appellants, the time of that arrest, their detention or statements made in relation to the investigation leading up

to the matter before the courts. He gauged the reliability of his sources on an international system described as a “four by four

system”. It was a standard tool used in analysis of intelligence which involved the rating of the source on a scale of one to four and a

further rating of one to four in terms of accuracy of the information where one/one was obviously the highest level. He said he judged

this information as intelligence and his source on which he based his belief and in this case it was on a one/one using that scale. He

was aware of the identity of one source of the information which led to the setting up of the operation in Letterkenny on the night of

the 21st February, 2010.

5 In relation to the items found in the car, the court’s reasoning is contained in the following passage of his judgment:

“The fact that the items were found in the car as part of the prosecution case. The court is satisfied that whereas

there may well be well-founded suspicions concerning those items, it has not been established that they were

connected with any plot and it certainly has not been established beyond a reasonable doubt that they were so

connected. The vital importance of the finding of those items to the prosecution is in view of the court the fact

that it rendered material very many of the questions put to each of the accused on the provisions of s.2 aforesaid.”

The court accepted the belief evidence of Chief Superintendent O’Sullivan. It acknowledged that such evidence leaves the defence in

a position where they could not test or challenge it in that privilege is claimed in respect of sources. It was for this reason that the

court observed that in cases such as this, where it accepts the belief evidence of the Chief Superintendent, the court will not act on

the belief evidence alone in the absence of some form of independent corroboration. In relation to the interviews, the court was

satisfied that in each of the cases the accused had failed to answer questions pursuant to s.2 of the Offences Against the State

(Amendment) Act 1998. The court was satisfied that the failure of the accused to answer material questions was “such as would

entitle the court to draw inferences and be treated as or capable of amounting to corroboration of other evidence in this case”.

6 The grounds of appeal in this case can be reduced to three. First, a challenge on the part of Mr. McGarrigle on the unlawfulness of

his arrest and consequently, the admissibility of any evidence derived therefrom. Second, a challenge to the belief evidence and the

inferences drawn from the refusal to answer questions and its compatibility with the European Convention of Human Rights; and third,

more general points arising from the foregoing.

Arrest

7 These grounds are specific to the appellant Gerard McGarrigle. The grounds of appeal lodged on his behalf set out three grounds

relevant to this aspect of the case in the following terms:

(i) The learned trial judge has erred in principle and in fact and/or in law in failing to determine that the arrest of the

above named accused was unlawful and not in accordance with law;

(ii)The learned trial judge has erred in principle and/or in fact or in law in determining that the arrest of the accused

was lawful in circumstances where the arresting officers failed to have a reasonable or any suspicion that the

accused had committed an arrestable offence and in particular that the offence for which he was arrested and

charged;

(iii)The learned trial judge has erred in principle and/or in fact and in law in determining that the arrest of the

accused was lawful in circumstances where the arresting officers failed to advise the accused of the offences for

which he was arrested and/or rearrested and failed to inform him of the date, time and place of the offence he was

alleged to have committed.

8 Of these grounds, ground three has been the focus of attention during the hearing. So far as grounds one and two are concerned,

it may be noted that the written submissions filed on behalf of Mr. McGarrigle, on which counsel was, on this aspect, happy to rely,

were couched somewhat differently to the grounds as argued at trial. At trial, the focus of attention was on whether the appellant

had already been detained by Garda Barrett prior to his arrest by the arresting member Detective Sergeant Michael Donoghue and

whether there was a garda plan which would see the appellant held for some time by those gardaí who had stopped the car in which

he was travelling, pending the arrival of an arresting member. In the written submissions however, the suggestion is that the arresting

officer, Detective Sergeant Donoghue, did not have a suspicion that the appellant committed the offence of membership of an

unlawful organisation as distinct from any possible suspicion of his being about to participate in a tiger kidnapping or a robbery.

9 A reading of the transcript of the voir dire of the 29th October, 2010, the third day of the trial, provides little support for this

submission. The evidence was to the effect that Superintendent O’Brien on the week of the 9th February, to the 20th February,

2010, was in possession of information relating to the existence of a plot by so-called dissident republicans to carry out a tiger

kidnapping or robbery in the Letterkenny area on Sunday the 21st February, 2010. The appellant was one of those identified as

allegedly involved. A series of briefings then took place which saw the information being filtered downwards through to Detective

Inspector English and Detective Sergeant Michael Carroll to Detective Sergeant Michael Donoghue who eventually carried out the

arrest of Mr. McGarrigle.

10 The evidence showed that Detective Sergeant Donoghue had attended briefings and was aware that the appellant had been

referred to in the information that had come to hand. The evidence was also that Mr. McGarrigle was known to him in his capacity as

a Detective Sergeant serving in Letterkenny, and he believed Mr. McGarrigle to be an active dissident republican involved in activities

on behalf of Óglaigh na hÉireann. During the course of the voir dire he was asked by prosecuting counsel about his state of mind.

That exchange was as follows:

“Q. May I just ask you: at the time you effected his arrest pursuant to s.30 what was your precise state of mind in

relation to him?

A. Well I was mindful of that information which we received at the briefing. I was also mindful of other information

which I had in my possession in relation to Mr McGarrigle, and I was mindful that there were four people from

different parts of northern Ireland on a back road out of Letterkenny at 12.30 am and I believed that these men

were on active service unit of Óglaigh na hÉireann or the Irish Republican Army.

Q. Cumulatively what conclusion did that lead you to at that time?

A. That they were members of an unlawful organisation.”

11 In the view of this Court, the argument now advanced that Detective Sergeant Donoghue did not suspect membership of an

unlawful organisation as distinct from intended participation in what has come to be described as a “tiger” kidnapping or robbery, must

fail. It need hardly be said that there is no necessary contradiction between the two submissions. Of course kidnapping and robberies

have been committed by persons with no connections to paramilitary organisations, but it is also the case that members of unlawful

organisations have bee involved in robberies. There is no logical reason why someone suspected of having participated in a robbery or

kidnapping should not also be suspected of being a member of an unlawful organisation. The evidence of Detective Sergeant O’Neill

was clear that that was his suspicion in the present case. Accordingly this ground of appeal fails.

12 On behalf of Mr. McGarrigle it was also argued that insufficient information was communicated to him in order for this to be a valid

arrest. In particular it was said that the information provided was inadequate as it did not state where, when, and on what occasion

the arresting Detective Sergeant believed the appellant to be a member of an unlawful organisation.

13 The trial court dealt with a submission advanced by Mr Garrigle on the ruling and came to the following conclusion:

“But he was arrested in the present tense by the arresting officer at the place in question, the roundabout in

question, and he was arrested for membership of an unlawful organisation. It was clear to him, it was made clear to

him that it, what he was being arrested for and the ordinary meaning of the language used and the context in which

he was arrested is that he was arrested for membership of the unlawful organisation at that time and at that place

and that is in fact what he was ultimately charged for. So we reject that ground.”

14 There is no doubt that a person being arrested must normally be informed in clear language of the true grounds for the arrest,

except where the circumstances of the arrest make obvious the reason for the arrest itself. The failure to communicate the reason,

or communication of an untrue reason, will render the arrest unlawful. As this Court explained in People (D.P.P.) v. Towson [1978]

I.L.R.M. 122 at p.124, a person must be informed of the reason for his arrest so as to insure that he “may be aware of his rights and

may have regard to his rights in order to use them as speedily as possible to regain his liberty”. In the leading case of Christie v

Leachinsky [1947] A.C. 573 at p.587-588, which has been approved of in many Irish cases, the following propositions were set out by

Viscount Simon:

“(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which

does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of

arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other

words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized;

(2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable

for false imprisonment;

(3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not

exist if the circumstances are such that he must know the general nature of the alleged offences for which he is

detained;

(4) The requirement that he should be so informed does not mean that technical or precise language need be used.

The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima

facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance

the reason why it is claimed that this restraint should be imposed;

(5) The person arrested cannot complain that he has not been supplied with the above information as and when he

should be, if he himself produces the situation which makes it practically impossible to inform him, e.g. by immediate

counter-attack or by running away.”

Viscount Simon indicated that there was a practical as well as principal reason for the duty to inform the person arrested of the

grounds for the arrest:

“If the charge on suspicion of which the man is arrested is then and there made known to him, he has the

opportunity of giving an explanation of any misunderstanding or of calling attention to other persons for whom he

may have been mistaken, with the result that further inquiries may save him from the consequences of false

accusation.”

15 The matter was addressed in the specific context of the Offences Against the State Act 1939 by the Supreme Court in the case

of People (DPP) v Quilligan & O’Reilly [1986] I.R. 495. Walsh J. (with whom Hederman and McCarthy JJ. agreed) commented at p.508:

“When a person is arrested under s.30 as in any other arrest he must be informed of which of the many possible

offences he is suspected unless he already has that information, see the The People v. Walsh [1980] I.R. 294. In so

far as the decision of the Special Criminal Court in the The People v. McDermott, McGettigan and Others (1974) 2

Frewen 211 might appear to say the contrary, it ought not to be followed because of the decisions of this court in

the The People v. Walsh [1980] I.R 294, and The People v. Shaw [1982] I.R. 1.”.

16 In the present case the arresting Detective Sergeant did in fact tell the appellant what offence he was being arrested for, namely,

membership of an illegal organisation. However, the appellant says that he did not specify the date or location of the suspected

offence. The submissions on behalf of the appellant do not recognise however, that normally the offence of membership is a

continuing offence in the sense that an individual will be a member of an unlawful organisation over a period of time, and ordinarily will

continue to be a member as he moves from location to location during that period of time. It is true that the general, although the

not invariable, practice is to charge offences of membership as being a member on a particular date within the State, but frequently

the evidence will reflect the fact that the allegation against the accused is that he was in fact a member of an unlawful organisation

for a period leading up to the date charged and remained and was a member on the date charged.

17 In the view of this Court, the conclusion of the trial court that Mr. McGarrigle was being arrested for membership there and then at

the roundabout at Oldtown at Letterkenny and that that fact was being communicated at the time of the arrest, was one that was

fully supported by the evidence. Accordingly this ground also fails.

The Belief Evidence

18 The appellant’s case is that the combination of the belief evidence under s.3 of the Offences Against the State (Amendment) Act

1972, the claim of privilege inevitably made in relation to the identity of any source of information, and the inferences drawn pursuant

to s.2 of the Offences Against the State (Amendment) Act 1998, amount to a breach of the appellant’s fair trial rights pursuant to

Article 6 of the European Convention of Human Rights, and in particular as interpreted in a line of authority commencing with Doorson

v. The Netherlands (Case 20524/92) (1996) 22 E.H.R.R. 330 and up to and including the relatively recent decision of the Grand

Chamber of the Court of Human Rights in Al-Khawaja and Tahery v. The United Kingdom (Case 26766/05) (2011) 54 E.H.R.R. 23.

These latter cases deal with circumstances in which evidence is admitted from witnesses not present in court and not available for

cross-examination, and in some circumstances, under provisions of anonymity. In such circumstances, the European Court of Human

Rights (hereafter the E.C.H.R.) had adopted an approach that Article 6 is breached where such evidence is the sole or decisive

evidence in any particular case. (This, it should be noted in the present context, is also the test applied in the context of drawing

adverse inferences from the defendants’ silence. See: John Murray v. The United Kingdom, (Case 18731/91) (1996) E.H.R.R. 3 at

para.47). This line of authority had caused considerable concern, particularly in the United Kingdom, and in the decision of R v.

Horncastle [2009] U.K.S.C. 14 the United Kingdom Supreme Court had gone so far as to refuse to apply the Doorson jurisprudence on

the grounds that the court was concerned that the Strasbourg judgment did not sufficiently appreciate or accommodate aspects of

English law.

19 The judgment of the United Kingdom Supreme Court raised some serious questions about the sole and decisive test. In the

subsequent decision of the Grand Chamber in Al Khawaja, the E.C.H.R. reiterated the underlying principle that the defendant in a

criminal trial should have an effective opportunity to challenge the evidence against him whether such evidence was that given by an

anonymous witness or an absent witness. However, the court indicated that the test was not to be rigidly applied, and accordingly

overturned the decision of the fourth section in relation to the first appellant Mr Al-Khawaja, but affirmed the decision in relation to

Tahery. The court said at paragraph 131 that:

“ “Decisive”(“déterminante”) in this context means more than “probative”. It further means more than that, without

the evidence, the chance of a conviction would recede and the chances of an acquittal advance, a test which, in

the Court of Appeal in Horncastle and Ors pointed out, … would mean that virtually all evidence would qualify.

Instead the word “decisive” should be narrowly understood as indicating evidence of such significance or importance

as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported

by other corroborative evidence, the assessment of whether it was decisive will depend on the strength of the

supportive evidence; the stronger the corroborative evidence, the less likely the evidence of an absent witness will

be treated as decisive.”

Accordingly the court considered that the assessment of the impact of the evidence of an anonymous or absent

witness had to be judged in the context of “the overall fairness of the trial” so that the court had to consider “the

significance of the untested evidence in order to determine whether the defendants’ rights had been unacceptably

restricted”. (para. 143)

20 This Court accepts that the statutory provisions in issue are significant alterations to the common law and together with the

privilege which normally attaches to the identity of informers and indeed to methods of information gathering, make more difficult the

task of defending persons accused with the offence of membership of an unlawful organisation in particular. However, a fair trial

whether pursuant to Article 38 of the Constitution or Article 6 of the Convention is not necessarily to be understood as a trial in

which a defence is facilitated. The question at all times is whether a trial under such conditions is fair. Nevertheless the Court

accepts that the provisions of s.3 of the Act of 1972 and s.2 of the Act of 1998 require careful scrutiny. Even where it is accepted

that the statutory provisions whether individually or cumulatively do not offend at the level of principle, there remains in any given

case an issue as to the fairness of the individual trial.

21 Section 3(2) of the Offences Against the State (Amendment) Act 1972 provides as follows:

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

relating to an offence under the said section 21 [membership of an unlawful organisation], 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.”

“(3) Subsection (2) of this section shall be in force whenever and for so long

only as Part V of the Act of 1939 is in force.”

The Offences Against the State Act was amended again in 1998. Section 2 of that Act provides as follows:

“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 Síochána 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.”

22 These provisions, both individually and cumulatively, have been the subject of consideration in a number of judgments in the

Superior Courts. It is somewhat surprising therefore that the argument advanced on behalf of the appellants in this case was little

more than a general invocation of the provisions of Article 6 of the Convention. First, the argument is advanced almost exclusively by

reference to the European Convention of Human Rights and the case law of the E.C.H.R. However the Article 6 guarantee of fair trial

under that document, is not in principle significantly different from the guarantee of a trial in due course of law provided for under

Article 38 of the Constitution, and it is somewhat surprising that no argument was addressed to that provision, even by analogy. Not

only is the Constitution the basic law of the State, with a rich jurisprudence which has arisen from and is focussed on the Irish legal

context, but it also offers a wider range of remedies, than an invocation of the Convention in an Irish court. As this Court and other

superior courts have made clear on a number of occasions, the European Convention on Human Rights is not part of Irish law by its

own force. As Murray C.J. observed at p.252-253 in J. McD. V. P. L. [2010] 2 I.R. 199, the E.C.H.R. becomes part of domestic law

only in accordance with the terms of the European Convention of Human Rights Act 2003:

“The role of the Convention as an interpretative tool in the interpretation of where our law stands from a statute, not the

Convention itself, and can only be used within the ambit of the Act of 2003.”

It is always a threshold question therefore as to how the Act applies in any case. As J. McD. v. P.L. makes perfectly clear, it is a

fallacy - even if a common one – to regard the provisions of the Convention as equivalent to directly effective provisions of European

Union law. Here, for example, the appellant does not seek a declaration of incompatibility pursuant to s.3 of that Act, which of course

would not avail him in this appeal. It is to be assumed therefore that the claim here is made pursuant to s.2 but if so, the appellants

have not identified with any precision any statutory provision or rule of law which it is alleged should be interpreted so far as possible

in the manner compatible with the Convention. Again, as was pointed out in J. McD. v. P. L. at p.251 “in exercising its jurisdiction

pursuant to s.2 a court must identify the statutory provision or rule of law which it is interpreting or applying”. In this case, no such

rule of law was identified. However taking a generous view of the appellants case it is perhaps to be inferred that the appellants seek

to contend that the belief evidence or possibly the belief evidence together with the inferences drawn pursuant to s.2 of the Act of

1998 constituted the sole or decisive evidence upon which they were convicted, and that that is incompatible with the principles

identified in Doorson and indeed Al-Khawaja. At a broader level it is perhaps suggested that the combination of the statutory

provisions together with the claim of privilege produces such disadvantage for the defendants as to render the trial unfair.

23 The provisions of s.3 of the Act of 1972 have been the subject of repeated judicial consideration in the 40 years since the

enactment of that provision. Among the most important of these decisions are: O’Leary v. Attorney General [1993] 1 I.R. 102 in

which Costello J. in the High Court rejected a challenge to the constitutionality of the provision; D.P.P. v. Martin Kelly [2006] 3 I.R.

115 in which the Supreme Court unanimously concluded that the requirements of Article 38 of the Constitution were satisfied in a

case in which the Chief Superintendent gave belief evidence and claimed privilege on the sources of his belief; D.P.P. v. Binéad and

Donohue [2007] 1 I.R. 374, in which this Court concluded that where belief evidence under s.3(2) of the Act of 1972 was admitted

and there was a claim for privilege in respect of the underlying facts, materials or sources which led to the belief, the trial was not

unfair in circumstances where the court had ruled that it would not convict without support of uncorroborated evidence of that

belief; and Redmond v. Ireland [2009] 2 I.L.R.M. 419 in which the Court concluded that s.3(2) was not unconstitutional or contrary to

the E.C.H.R.

24 These cases also record the development of the jurisprudence under s.3(2). In particular in O’Leary, Costello J. at p.112 made it

clear that the section did not affect in any way the plaintiff’s right to enjoy the presumption of innocence. What it did was to:

“make admissible in evidence in certain trials statements of belief which would otherwise be inadmissible … 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.”

Furthermore, as is recorded in both the judgments of Geoghegan and Fennelly JJ. in Kelly, as a matter of law it may be possible to

convict a person of the offence of membership on the belief evidence of a Chief Superintendent. Nevertheless it is and has been the

practice of the D.P.P. not to prosecute in cases where such evidence is the only evidence, and similarly it has been the practice of

the Special Criminal Court not to convict where such evidence is the sole evidence. This, it might be observed, is a domestic

application of a standard not dissimilar to the sole or decisive test.

25 The circumstances which led to the introduction of s.3(2) are recorded in the judgments in Kelly and Redmond. In Kelly, Fennelly J.

set out the definition of an unlawful organisation contained in s.18 of the Offences Against the State Act. He continued at p.130:

“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. Intimidation of possible witnesses, and worse, is to be presumed. Where the gardaí have

secret intelligence, they will be unable to produce informants as witnesses without compromising them.”

This background is also helpfully elaborated upon in the evidence given in Redmond v. Ireland by a detective superintendent, referring

in particular to the emergence of the Provisional I.R.A. in 1969. He gave a description of the treatment meted out to people who were

suspected of assisting police investigations, which included interrogations and torture sometimes resulting in execution. The evidence

is recorded in the judgment as follows at p.443:

“The fact that it is an oath bound secret organisation divided into cells creates problems for the Gardaí making it

very difficult to infiltrate the organisation and gather evidence to prosecute member volunteers. The organisation is

very energetic in trying to identify members of the public who provide information to the police and are very

assiduous in collecting evidence including closely examining books of evidence to identify any such persons. If

anyone is identified in this manner it usually results in serious torture or death. This represents a serious problem for

the Gardaí who bring prosecutions before the ordinary courts where witness and jury intimidation was not unknown.

… The witness also gave evidence that there were only about 69 members in the force of Chief Superintendent

status or higher who can give evidence under s.3(2). In fact, he testified that only 17 or so of the relevant are

experienced to give such evidence in practice.”

The detective superintendent also gave evidence of many investigations into the activity of the I.R.A. in which he was involved and

“declared that a common feature in all these investigations is the presence of fear, intimidation and the threat of reprisals. As a result

witnesses have refused to give evidence in court even when they have initially made statements to the Gardaí”. He considered, that

if s.3(2) had not existed, the Gardaí would not have succeeded in counter-acting the threat posed by the I.R.A.

It is against this background s.3(2) may be analysed.

26 First, it is noteworthy that the evidence pursuant to s.3(2) can only be given in relation to one category of offence, that is

membership of an unlawful organisation. For the reasons set out in Kelly and Redmond, those organisations determined to be unlawful

organisations pursuant to the Act of 1939 are cell based, secretive, and violent organisations which invest considerable resources in

the enforcement of secrecy about the membership of such organisations, and do so by torture, death, and by the inevitable fear that

those methods engender. Membership is normally a continuing state of affairs, rather than a single activity, and is accordingly more

susceptible to belief evidence of a senior garda officer, based on a variety of sources over a period of time, than if such evidence was

admissible in respect of a single criminal activity. Whatever the justification, it is certainly the case that such belief evidence is only

admissible in respect of membership of an unlawful organisation.

27 The section makes the belief of a chief superintendent evidence that an accused was at a material time a member of an unlawful

organisation. As the cases show, it does not make that evidence conclusive or preclude it from being challenged, tested or

contradicted. For present purposes, it is important however, that it is the belief of the Chief Superintendent which is evidence, and

not the material upon which that belief is based. Thus, the section does not involve the giving of hearsay evidence where the

relevant evidence is that of a person who is not available in court for cross-examination. Nor is it akin to the giving of evidence by an

anonymous witness. Here, the relevant evidence is the belief of a Chief Superintendent, who is identified and gives his or her

evidence in open court. It is to be anticipated that the belief of such a senior officer in the gardaí will be based on a variety of

sources: technological, electronic, and human, including information supplied by informants. But even in cases where the evidence of

the Chief Superintendent is based upon the direct statements provided to him or her by an informant or informants, the court is not

asked to act upon the hearsay statements of such informants: rather it is the belief of the Chief Superintendent based upon such

informants which is the evidence. The formation of that belief would normally involve the application of the Chief Superintendent of

his or her experience in dealing with informants and in dealing with illegal organisations and where relevant, in assessing the

significance and value of diverse pieces of information and intelligence. Accordingly, where evidence is given pursuant to s.3(2) it is

not the case that the court is asked to act upon either the evidence of anonymous witnesses or witnesses who are out of court and

not available for cross-examination. Accordingly, any analysis based upon Doorson and Al-Khawaja should take account of this

structural distinction.

28 The category of persons who can give evidence under s.3 is limited both as a matter of law and practicality: it comprises only

those officers of the rank of Chief Superintendent, and normally only those with experience of illegal organisations. In Kelly Fennelly J.

cited with approval at p.135 an observation of Gannon J. in People (D.P.P.) v. Cull (1980) 2 Frewen 36 at 41 as follows:

“It would seem probable … that the legislature would expect an officer of that rank to reach, in a responsible

manner, an opinion in accordance with principles of justice in relation to the guilt of a person in whose favour there

is a presumption of innocence.”

Fennelly J. continued:

“… a court of trial is entitled to assume that an officer of the rank of Chief Superintendent would give evidence of

his belief that an accused person is a member of an unlawful organisation only when he has satisfied himself of this

fact beyond reasonable doubt. Hence, even when that is the only evidence, it is important that the court is entitled

to act on it, in the absence of some challenge to questions sufficient to raise such a doubt.”

In this case it is noteworthy that Chief Superintendent O’Sullivan gave evidence that he had refused to give such evidence in other

cases where he was not so satisfied. Furthermore, as this case illustrates, a Chief Superintendent will often state (although this is

not necessarily required) that his or her evidence is based on matters other than the particular events before the court, so that there

is no overlap or duplication of the evidence on which the court is asked to act.

29 Finally, the section specifically provides that the evidence can only be given while Part V of the Act of 1939 is in force. Therefore,

while the offence of membership can be committed at any time, and can be tried before any court, evidence under s.3(2) is only

admissible when the government has made a declaration that it is satisfied that the ordinary courts are inadequate to secure the

effective administration of justice. Such a declaration has the additional consequence that the evidence under s.3(2) will in normal

circumstances be given to the Special Criminal Court, comprised of experienced judges who may be expected to approach such

evidence with the degree of expertise and circumspection indicated in the Kelly case.

30 On analysis, therefore, it might be said that the difficulties for the defence created by the existence of s.3(2) are not so much

created by the fact that the belief of a Chief Superintendent is made admissible as evidence, but rather by the fact that it is

inevitable that when asked questions in relation to the basis of his or her belief, a Chief Superintendent will almost inevitably claim

privilege at some point whether in respect of the identity of an individual source or the methods of information gathering, on the basis

of disclosure of such matters particularly in the context of active subversive organisations, might significantly harm the process of

enforcement of the law and detection of breaches of it, and entirely conceivably put at risk the lives of informants, gardaí and other

witnesses. Such privilege is well recognised in many jurisdictions. In principle, the assertion of any privilege and its upholding by the

court in an appropriate circumstance, is itself compatible with the administration of justice. To that extent it might be thought that

the operation of the privilege when correctly claimed and upheld, could not itself give rise to a claim for breach of Article 38 of the

Constitution or Article 6 of the Convention. However it should be recognised that the question of informer’s privilege is normally

tangential to ordinary criminal trials since the court will proceed only upon admissible evidence adduced before the court. Whether or

not the prosecution or investigation was commenced by information provided by an informant is itself not normally relevant, and may

only arise in unusual circumstances such as, for example, where it is contended that there has been some form of entrapment. The

informant does not give evidence, nor does his or her statement become evidence. Here, however, it can be said that an important

component of the evidence actually given in court – the evidence of the belief of the chief superintendent – is itself based upon

information from informants whose identity is unknown and whose credibility is untested. Therefore it is argued that the belief or

opinion of the chief superintendent cannot be comprehensively challenged when the information upon which it is based cannot itself

be tested. Accordingly the claim of privilege in such a context may be particularly significant.

31 The so called informer’s privilege is not something which can be claimed as a right by any garda witness. First, it must be

established that the circumstances are such as to give rise to a valid claim for privilege. Second, the privilege itself is not absolute.

From the time when it was formulated in cases such as Marks v. Beyfus (1890) 25 Q.B. 494, it was recognised that it was subject to

an innocence at stake exception. This point was, in any event, confirmed by the Supreme Court in Howlin v. Morris [2006] 2 I.R. 321.

It follows from this that in an appropriate case the privilege can be challenged and, if necessary, the court can inspect any

documents or other materials. Even where such privilege is upheld, it does not follow that the evidence of a chief superintendent

cannot be tested. The credibility of any witness is not dependent solely on the material which that witness seeks to adduce in

evidence in chief. On the contrary, credibility can be challenged on any issue collateral to the particular testimony. Furthermore, as

the Supreme Court expressly held in Kelly in rejecting a submission made on behalf of the Director of Public Prosecutions, the evidence

of a Chief Superintendent under s.3(2) can be explored and tested in a number of ways, such as whether the belief is based upon one

or more sources of information, whether in the case of a human informant the Chief Superintendent is personally aware of the identity

of the informant and has dealt personally with him or her, and whether as in this case, the witness has experience in dealing with

such informants and rating and analysing their evidence. In this case it must be said that the evidence of the Chief Superintendent

was impressive. This highlights a difficulty with this area of argument. There are many reasons why the defence will not seek to probe

the evidence of a Chief Superintendent, even though that is entirely permissible at law. Defence counsel may wish to submit that the

evidence of the chief superintendent is bare evidence to which a court should attribute little weight, or indeed make submissions such

as that in the present case, namely that the inherent restrictions on the capacity of counsel to cross-examine rendered the particular

trial unfair. In either case, such a strategy could be undermined, and indeed the case against the accused unwittingly strengthened,

by detailed cross-examination. Accordingly, it cannot be assumed that because in any given case counsel does not cross-examine

extensively, that extensive cross-examination is not possible. In D.P.P. v. Martin Kelly the Supreme Court unanimously concluded that

the interaction of s.3(2) evidence and a claim of privilege did not itself render a trial unfair and contrary to Article 38 of the

Constitution. In this case, this Court is satisfied that the combination of those provisions in the present case was not a breach of the

fair trial rights of the accused, whether guaranteed directly by Article 38 of the Constitution, or indirectly in the present context, by

Article 6 of the Convention of the E.C.H.R.

The Inference drawn pursuant to s2 of the Offences Against the State (Amendment) Act 1998

32 A third component of the case against the appellants and upon which the appellants now rely in contending that the trial was

unfair, is the impact of s.2 of the Offences Against the State Act 1998. Again, it is necessary to consider what that section provides.

Once again, it is noteworthy that it is limited to proceedings against a person for an offence of membership of an unlawful

organisation contrary to s.21 of the Act of 1939. The section only applies where on being questioned by a member of the Garda

Síochána in relation to the offence, i.e. the offence of such membership, the accused fails to answer any question material to the

investigation of the offence, the court may draw “such inferences from the failure as appear proper”. It follows necessarily that the

question must be material to the investigation of the offence. Furthermore, the court can only draw an inference that appears

“proper”. In other words, one that follows logically from the questions asked and the refusal in the particular case. Even in such a

case, the court is not obliged to draw any such inference. Finally, is expressly provided that any person shall not be convicted of the

offence of membership solely on an inference drawn from such a failure. In addition, subsection 2 includes a number of safeguards

including a requirement that the accused be told in ordinary language when being questioned what the effect of such a failure might

be.

33 In Murray v The United Kingdom (Case 187/91) (1996) 22 E.H.R.R. 29, similar but more extensive conditions of the Prevention of

Terrorism (Temporary Provision) Act, 1989, were considered by the European Court of Human Rights. Those provisions were more

extensive than those in the present case because they were not limited to a single offence of membership of an unlawful organisation

and an inference could also be drawn from the failure of an accused to give evidence in his own defence having been called upon to

do so by the court. At paragraph 47 of its judgment, the court concluded that this provision was not per se incompatible with Article

6 of the Convention. It said:

“…it is self evident that it is incompatible with the immunities under consideration to base a conviction solely or

mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. On the other hand,

the Court deems it equally obvious that these immunities cannot and should not prevent that the accused’s silence,

in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of

the evidence adduced by the prosecution.”

34 In this case, the only question is whether the operation of s.2 rendered the trial unfair. It is worth observing in this context that

the objections to the drawing of inferences from the silence of an accused while in garda custody have rarely been with the logic or

common sense of such inferences. Most people would regard a refusal to answer questions as to the movements of a person in

circumstances which in the words of the European Court of Human Rights “call out for explanation”, (such as those in the present

case), as itself at least suggestive of guilt. A useful analogy may be those cases in which it has been demonstrated conclusively that

an accused person has lied, such as R. v. Lucas [1981] Q.B. 720. While a jury must be informed and a judge must inform himself or

herself that a person in such circumstances may lie for a number of reasons which are not themselves consistent with guilt, the fact

that the accused lied can support the prosecution case, and, if necessary, amount to corroboration, where the relevant trier of fact

is satisfied beyond reasonable doubt that the lies were not told for some innocent reason, i.e. for a reason other than guilt In the

case of a person who refuses to answer any question while detained in garda custody, the historic objections to admitting such

evidence was not a doubt as to the inherent logic, but rather its fairness, where as a matter of history the accused had not himself

or herself been entitled to give evidence, and may not have had legal assistance, and in circumstances where such evidence might

carry too much weight with a jury. In this case it is necessary to consider therefore the logic of the inference drawn and the fairness

of doing so in the particular circumstances of this case.

35 The recent decision of The People (D.P.P.) v. Devlin [2012] I.E.C.C.A. 70 (Unreported, Court of Criminal Appeal, 6th July, 2012)

bears certain superficial similarities to the present case. There the accused man was arrested at a petrol station while in possession

of bolt cutters, insulating tape and gloves and while in the act of opening the boot of a car in which he had been a passenger. There

was a pipe bomb in a rucksack in the boot. He was charged with possession of an explosive substance. At the trial, reliance was

placed on s.18 of the Criminal Justice Act 1984 as inserted by s.28 of the Criminal Justice Act 2007 which allows inferences to be

drawn from a failure to “give an account” for “any objects substance or mark or any mark on any such object that was (i) on his or

her person; (ii) in or on his clothing or footwear; (iii) otherwise in his or her possession, or; (iv) in any place in which he or she was

during any specified period”. In his first interview when asked where he had been the day before, he replied “I have not and I’ve

never been a member of any illegal organisation. I wasn’t and never have been in possession of any explosive substances or explosive

material”. He repeatedly said that he had been arrested for membership of an unlawful organisation and possession of explosives, both

of which he denied. In answer to further questions he said repeatedly “I refer to my previous answer”. On other occasions he gave

what the court described as minor variations on the same answer such as “I was not and never have been in possession of explosives

yesterday or any other time”. Asked if he was aware there was an explosive device in the car he said “no”, and asked if he would

have got into the vehicle if he had known of its presence he said “definitely not”. In the context of s.18 he was then asked to

account for the pipe bomb and the bolt cutting knife and insulating tape. In relation to the pipe bomb he said “I refer you to my

earlier answers”. In relation to the other items he said each item in question had been in his jacket from the last time he had worn it.

Again he said “I refer you to my earlier answers”.

36 The Court of Criminal Appeal focussed on the references to the bolt cutters and insulating tape in particular. For reasons set out in

the judgment it discounted the questions relating to a pair of black gloves. It observed that the appellant did in fact offer an

explanation in relation to the two items and while that may or may not have been a satisfactory explanation, it was an answer and

did not therefore amount to a failure or refusal to account. The Court also observed that the failure or refusal should be capable of

amounting to corroboration in the sense identified in D.P.P. v. Gilligan [2006] 1 I.R. 107, and expressed the view of the court, which in

the context of the case was obiter, that the evidence in question fell short of meeting that requirement.

37 It is clear that provisions such as s.18 of the Criminal Justice Act 1984 (as amended) and s.2 of the Offences Against the State

Act 1998 must be carefully analysed, in particular by reference to the specific circumstances in which they are invoked. On such

analysis it is apparent that there are significant differences, both legal and factual, between this case, and that of D.P.P. v. Devlin.

The offence charged here is one of membership of an illegal organisation whereas in Devlin the offence was one of possession of an

explosive substance. Under s.18 of the Criminal Justice Act 1984 which was invoked in the Devlin case, the failure is a failure to

account for any objects, substance or mark. On the evidence in that case, it was apparent why the Court of Criminal Appeal

concluded that there had been no such failure to account for any object, substance or mark. However, under s.2 of the Offences

Against the State Act 1998, the relevant failure from which an inference can be drawn is a failure “to answer any question material to

the investigation of the offence”. In this regard there is a clear distinction between the cases. In Devlin an account was given on

more than one occasion, and answers given to a number of questions. However the test is not whether an account was given, but

rather whether the accused failed to answer any material question. Furthermore here it was not merely a case that the accused had

failed to answer any question material to the investigation of the offence, it could fairly be said that the accused had refused to

answer virtually every question material to the offence. Thus, although Mr Donnelly had given a short statement outlined in paragraph

3 above, that was itself not an answer to any question, and was a small island of volubility in an ocean of silence. Thus, for example,

upon being cautioned and then being informed of the effect of s.2 both in formal term and ordinary language, Mr. Donnelly’s sole

response was silence to the following questions:

“Dessie where are you from originally?

Are you from Fermanagh originally?

Are you from Letterkenny?

Do you have any connection with Letterkenny?

Do you have any family or friends here in Letterkenny?

Do you work in Letterkenny?

Do you have any work colleagues in Letterkenny?

Can you tell me what you were doing in Letterkenny on the night of the 21st/22nd February 2010?

What business did you have here in Letterkenny on the night of the 221st/22nd of February 2010?

Were you here in Letterkenny as part of an IRA operation?

Were you here in Letterkenny to undertake a fundraising operation on behalf of the IRA?

Were you here to further the aims of the IRA?

How do you know the people you were with last night the 21st and 22nd February 2010?

What is your relationship to these people?

How long do you know these people?

What explanation can you give as to why you were in Letterkenny last night the 21st/22nd February 2010?

Have you an innocent explanation for being in Letterkenny last night the 21st/22nd February 2010?”

Thereafter a further warning was given pursuant to s.2 .The questioning resumed and was again met by silence:

“How did you come to be in contact with the other men that you were arrested with?

What is your relationship to these men?

Do you know Gearoid McGarrigle?

What is your relationship to him?

How long have you known him?

Is he a member of the IRA?

Do you know a person called James Murphy?

How long do you know this person?

What is your relationship with this person?

Is he a member of the IRA?

Do you know a person called Eoin Gildea?

How long do you know this person?

What is your relationship with this person?

Is he a member of the IRA?

Who made the initial contact yesterday?

Was it you?

How were you contacted?

Did you contact the aforementioned persons?

Why were you together?

Were you all together as part of an IRA operation?

I put it to you that you were?

Is it correct that you were all on an IRA operation last night?

What were you doing in motor car PUI 5615 black Mercedes Benz?”

He was then asked further questions about the motor car and his presence in Letterkenny. It was at the end of this session that he

made the statement set out at paragraph 3. Thereafter a further series of questions were put to him similar to those already

identified. He was then asked about the items found in the car. A sample of these questions is as follows:

“I wish to point out to you that there were a number of items found in motor car navy Mercedes Benz registration

number PUI 5615 in which you were travelling at the time of your arrest; have you any comment to make?

These items which included latex gloves will be shown to you in a future interview; why did you have these gloves?

Can you tell us what reason you were in Letterkenny for last night 21st/22nd February 2010?

Will you account for your movements in Letterkenny last night prior to your arrest?

What were you doing in a car with three other males?

Can you identify the other men that were arrested with you?

Why won’t you identify these men?

What did you do immediately prior to your arrest?

Why were you with these men?

What was your objective?

How did you come to know two men from Strabane, County Tyrone and one from Enniskillen?

What is your relationship with these men?

Does it not seem strange to be going around Letterkenny with these men in the early hours of the morning?

Who arranged this IRA operation?

Are you part of an active service unit?

Who is anyone swore you into the IRA?”

In a subsequent interview he was shown all the items recovered from the car and asked to account for them, if they were his, what

purpose he had them for, where he got them from, and were they intended for use in an I.R.A. operation. It was after a further

interview that he stated “regarding the last interview I know nothing about the articles shown to me, any DNA or anything after is

pure accidental”. He was then asked:

“Is there any question you would like to ask me about what I have just explained to you?

Would you like to elaborate on your last answer Dessie?

How would your DNA get on these items?

Are you saying you handled these items?

Which items did you handle?

Was it the latex gloves?

How did you make the statement and then refuse to answer?

Will you not tell us what you mean by accidental?”

In every case the response of Mr. Donnelly and the other accused in similar circumstances, was simply silence. In such circumstances

it is certainly the case that the trial court was entitled to find that Mr. Donnelly notwithstanding his short volunteered statement had

“failed to answer questions material to the investigation” of the events and the court was fully entitled to draw the inference which it

did.

38 Finally, it is perhaps appropriate to observe that a question may arise as to the meaning of “corroboration” in statutory provisions

such as s.2 of the Offences Against the State Act 1998 and s.18 of the Criminal Justice Act 1984. It does not appear to this Court

that the reference to such evidence being “capable of amounting to corroboration” amounts to a requirement that such evidence be

capable of satisfying the test for corroborative evidence before it can be accepted. On the contrary, such evidence is deemed by

statute to be capable of amounting to corroboration, so that in such cases where corroboration is required as a matter of law or

practice, it is capable of being supplied by inferences being drawn pursuant to the relevant statutory provisions.

39 The Special Criminal Court addressed the significance of the items found in the car in the passage set out at paragraph 5 above.

The court considered that the importance of the items was that they rendered material many of the questions put to the accused

men under s.2. In respect of the interviews themselves, the court was satisfied that each of the accused failed to answer a number

of material questions concerning the items and their movement that night. In the light of the evidence some of which is set out

above, this conclusion is beyond challenge. The court properly identified the fact that Mr. Donnelly did in one later interview make a

short statement regarding the items and that constituted an answer. However, the court considered, correctly, in our view, that the

gardaí were fully entitled to put further questions to him which questions he failed to answer. Although the court did not refer to the

evidence of Mr. McGarrigle, the same conclusion must apply in his case. The court’s conclusion “that the failure of the accused to

answer material questions is such that it entitled the court to draw inferences and be treated as or capable of amounting to

corroboration of other evidence in this case” was, in the judgment of this court, entirely correct.

40 Subsequently the Court concluded that the failure to answer questions put to them material to the investigation was capable of

amounting to corroboration of the evidence of the belief of the chief superintendent. Under the section it is specifically provided that

the failure to answer questions may, on the basis of the inferences to be drawn, be treated as corroboration. However, this is not a

case in which there was evidence which required corroboration in the strict sense in which that term is used in the law of evidence. It

appears the section uses the term in the more general sense of other evidence of guilt, which by virtue of the section may amount to

corroboration, where that is required by law. Furthermore, it is perhaps important to point out that it is not the failure to answer

questions which itself amounts to corroboration or indeed is itself evidence. Rather, the failure to answer questions material to the

offence permits the court (but does not require it) to draw inferences from such failure as appear proper. It is those inferences which

provide the basis on which the failure may amount to the type of corroboration contemplated by the section. Accordingly, any fact

finder faced with s.2 must first consider whether there has been a failure to answer questions material to the investigation of the

offence, and thereafter what inferences may be drawn from such failure as a matter of logic. An inference of guilt is not an inevitable

consequence of a failure to answer. In some cases one inference may be that the accused did not understand either the import of

the question or the consequences of a failure. In another situation, a refusal to answer questions may be indicative of a desire to

avoid disclosing matters shameful and reprehensible, though perhaps not illegal. In still other cases, one inference might be that it is a

desire to avoid disclosing a matter which is illegal, albeit not the illegality with which the person is being taxed. A further possible

inference is that a suspect has already given a comprehensive account and does not see any merit in repetition.

41 Here the Court did not go through the somewhat laborious exercise of considering possible inferences, but it is obvious in the

particular circumstances of this case that the Court concluded that the only possible inference from the sequence of events here and

the manner in which the individual accused responded, (or more accurately failed to respond) in a number of interviews, was that

they were members of an unlawful organisation and thus corroborating (in the language of the Act) the independent evidence of the

Chief Superintendent. That was a conclusion which the Court was entitled to come to, and which in the view of this Court was

entirely appropriate. The Court is entitled to take account of the fact that apart from the formal denial by Mr. Donnelly and Mr.

McGarrigle, the accused men made no effort to challenge the assertion that they were members of an illegal organisation, or offer any

explanation for their conduct. Furthermore, the manner in which they responded, or failed to respond, was itself something which the

court was entitled to take into account. This was not a case where the men had cooperated with the Gardaí but simply refused to

answer some individual question, or had given some answers but which the Gardaí considered evasive or unsatisfactory: on the

contrary the refusal to answer was complete and comprehensive.

42 Finally, the argument in this case seemed to proceed on the basis that the only evidence against the accused was first the belief

of the Chief Superintendent and second, the inferences drawn from silence, and that the only significance of the items of evidence

recovered from the motor vehicle was the basis upon which material questions could be asked pursuant to s.2. It seems to be argued

that once the question was asked and once an inference was drawn, such real evidence fell away simply because as the Court

observed, correctly in our view, it had not been established that such items were connected with any plot at least beyond any

reasonable doubt. However, here the appellants were stopped at a check point in the early morning in the County of Donegal some

distance from their homes in a motor vehicle not owned by them, and containing an imitation firearm, nine cable ties, four pairs of

gloves, duct tape, bin liners and a black beanie hat. The car had been observed in the car park of a licensed premises in the

Letterkenny area. When asked to account for their actions, and these items, with the exception already noted, the response of the

appellants was to refuse to respond in circumstances where the Court correctly concluded, that it could draw inferences from such

failure to respond. In such circumstances, these items were not simply items recovered on a search of the car, not owned by any of

the appellants, but were unexplained items and indeed actions, from which it was appropriate to draw an inference that they were

items being used, and actions being taken, by the appellants as members of an unlawful organisation. This evidence therefore formed

an important component of the evidence upon which the Court was entitled to act. In this regard, and indeed more generally, it is of

some significance, that the E.C.H.R. unanimously rejected as inadmissible the complaint on behalf of Martin Kelly, following the

decision of the Supreme Court in that case. See Kelly v Ireland (Case 4130/04) [2010] E.C.H.R. 2215.

Conclusions

43 Having regard to all of the above considerations, the Court is accordingly obliged to hold that the appeal must be dismissed.