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Judgment Title: DPP -v- Desmond Donnelly, Gerard McGarrigle and James Murphy
Neutral Citation:  IECCA 78
Court of Criminal Appeal Record Number: 3, 4 & 5/11
Date of Delivery: 30/07/2012
Court: Court of Criminal Appeal
Composition of Court: O'Donnell J., Birmingham J., Hogan J.
Judgment by: O'Donnell J.
Status of Judgment: Approved
Outcome: Appeals v Conviction Refused
COURT OF CRIMINAL APPEAL
[C.C.A. No. 3, 4 & 5 of 2011]
The People at the Suit of the
Director of Public Prosecutions
Desmond Donnelly, Gerard McGarrigle and
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:
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.”
The judgment continued:
“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:
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.
(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.
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:
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:
(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.”
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
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:
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)
21 Section 3(2) of the Offences Against the State (Amendment) Act 1972 provides as follows:
“(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.”
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  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  3 IR 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  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  2 ILRM 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:
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 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:
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  2 IR 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 EHRR 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:
35 The recent decision of The People (D.P.P.) v. Devlin  IECCA 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  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:
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:
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?”
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?”
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)  ECHR 2215.