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Supreme Court of Ireland Decisions
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Cite as:  2 ILRM 321,  IESC 20,  3 IR 115
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Judgment Title: DPP -v- Kelly
Composition of Court: Murray C.J., Denham J., Geoghegan J., Fennelly J., Kearns J.
Judgment by: Geoghegan J.
Status of Judgment: Approved
- 9 -
THE SUPREME COURT
Record No. 418/2005
THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS
AppellantJUDGMENT of Mr. Justice Geoghegan delivered the 4th day of April 2006
This is an appeal brought pursuant to a certificate of the Court of Criminal Appeal under section 29 of the Courts of Justice Act, 1924 from an order of that court refusing the above-named appellant leave to appeal against his conviction by the Special Criminal Court on the 19th November, 2003 on a charge of membership of an unlawful organisation contrary to section 21 of the Offences against the State Act, 1939 as amended by section 2 of the Criminal Law Act, 1976.
The certified point of law of exceptional public importance as formulated by the Court of Criminal Appeal reads as follows:
“Are the requirements of Article 38 of the Constitution satisfied where an accused is precluded from enquiring into the basis of the evidence of belief given against him at his trial pursuant to the provisions of the Offences against the State Act, 1939, as amended, on a charge of membership of an unlawful organisation before the Special Criminal Court?”
At this juncture, it is important to note that the appeal to this court is not concerned with any matter other than the question of whether the appellant was deprived of a fair trial by reason of that limitation on cross-examination. It was accepted that the evidence was admissible and it was also accepted that the Chief Superintendent was entitled to plead informer privilege. It is a curious feature of the case that although sixteen stated grounds of appeal were served and lodged in the office of the Court of Criminal Appeal for the purposes of the application for leave to appeal against conviction, they did not include the ground now put forward. It is clear, however, from the terms of the reserved judgment of the Court of Criminal Appeal delivered by McCracken J. sitting with Peart and Dunne JJ that Mr. Peter Finlay, S.C., counsel for the appellant was allowed to make the argument at the hearing of the application for leave to appeal that the appellant was not given a trial in due course of law in accordance with his entitlement under Article 38 of the Constitution. At p. 13 of the unreported judgment, McCracken J. referring to Mr. Finlay comments as follows:
“Very fairly, he does not go so far as to argue that a claim of privilege cannot be entertained, but he does submit that a fair trial requires some investigation as to whether it is reasonable to protect a claim of privilege in any particular case.”
The first point to be made is that the presumption of constitutionality applies to each of the acts relevant to this case. That is important because a limitation on cross-examination is inherent in the very terms of section 3(2) of the Offences against the State (Amendment) Act, 1972. That subsection reads as follows:
“Where an officer of an Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.”
It is important to consider whether the actual terms of section 3(2) inherently restrict a right of the accused to cross-examine. In their written submissions to this court, counsel for the Director of Public Prosecutions point out that the case law coming from the United States, the European Court of Human Rights and the Irish courts on cross-examination do not address the following specific issues which they consider arise for consideration in the present case. As set out in the submissions these are:
(ii) whether section 3(2) in fact restricts any right of the accused to cross-examine;
It is essential to consider the purpose of section 3(2) of the 1972 Act. Prima facie if the Garda Síochána have reliable information that somebody is a member of a prescribed organisation there might be nothing to prevent them marshalling the necessary witnesses to give direct proof of this. However, it is perfectly clear that the legislation has been passed in the context of preserving the security of the State and the legitimate concern that it will not in practice be possible in many, if not most cases, to adduce direct evidence from lay witnesses establishing the illegal membership. Such witnesses will not come forward under fear of reprisal. The Special Court itself was established to avoid the mischief of juror coercion and intimidation. In relation to all anti-terrorist offences, as a matter of common sense, there would be equal apprehension about intimidation of witnesses. It is a reasonable inference to draw that the subsection was enacted out of bitter experience. It is carefully crafted ensuring that the belief evidence must come from an officer of an Garda Síochána not below the rank of Chief Superintendent. This is with a view to establishing trust and credibility as far as possible. Counsel for the appellant accepts the concept of informer confidentiality but any extensive probing in relation to the basis of the information irrespective of whether names are requested or not may inevitably undermine the protection of the informer by affording clues to his identity. Even without the statutory provision, informer privilege may involve more than merely refusing to divulge the name of an informer. Surrounding evidence which would be likely or might tend to disclose the identity of the informer would itself be protected by the privilege in the sense that it may not be allowed to be adduced under cross-examination. I have no doubt that in so far as Mr. Finlay was limited in his cross-examination of Chief Superintendent Kelly, permission for this limitation was inherent in the subsection itself which enjoys the presumption of constitutionality.
Counsel for the Director of Public Prosecutions have come forward with two possible constructions of section 3(2). The first and the one favoured by the Director of Public Prosecutions is that while section 3(2) permits evidence of the belief, it does not permit evidence about the basis for the belief. It is argued on behalf of the Director of Public Prosecutions that a contrary interpretation would appear to defeat the purpose of the section partly on the basis that it might defeat informer privilege and partly on the basis that in practice it might involve the admission of hearsay evidence. The second and alternative construction put forward by the Director of Public Prosecutions is that the subsection at least authorises the giving of evidence about the basis for the Chief Superintendent’s belief but not to the extent that it interferes with or defeats a legitimate plea of privilege.
Even though the first of those two alternative interpretations is strongly favoured by the Director of Public Prosecutions, I prefer the second. Conceptually, and possibly in practice in some cases, evidence of the basis for the belief of the Chief Superintendent might not infringe any protection of informers as it might not be based on informers. As the normal rights of an accused are being infringed, it would seem to me that there must be a constitutional requirement that such limitation be kept to a minimum. It would be disproportionate to adopt the interpretation of the subsection favoured by the Director of Public Prosecutions. I believe, therefore, that the Director of Public Prosecutions’ alternative interpretation is the correct one.
I do not propose to discuss in any detail the weight to be given to the Chief Superintendent’s belief evidence and particularly the circumstances in which more or less weight would be attached to his evidence. That has all been fully considered by the Court of Criminal Appeal and by the Special Criminal Court itself. Like the Court of Criminal Appeal, I believe that the methodology of the Special Criminal Court was correct. In this case, there was, at any rate, substantial evidence implicating the appellant in the offence independently of the evidence of belief of the Chief Superintendent. This has been detailed in the judgment of the Special Criminal Court and summarised in the judgment of the Court of Criminal Appeal.
It has been the practice apparently of the Special Criminal Court not to convict on the belief evidence alone. In my view, that practice is commendable though not absolutely required by statute. There may be exceptional cases where the Special Criminal Court in its wisdom would be entitled to convict on the belief evidence alone. Equally commendable is the practice of the Director of Public Prosecutions of which the court has been informed, not to initiate a prosecution based solely on the belief evidence. These self-imposed restrictions by the Special Criminal Court and by the Director of Public Prosecutions are with a view to ensuring a fair trial. In this case, there was plenty of outside evidence and it was well within the discretion of the Special Criminal Court to convict the appellant for the reasons given by the Court of Criminal Appeal. It is not necessary to cover that ground again.
Reference should, however, be made to a relatively recent decision of the Court of Criminal Appeal in Director of Public Prosecutions v. Mulligan where in an unreported judgment of the 17th May, 2004, Keane C.J. who sat with Lavan J. and O’Leary J. rejected a submission that no weight could be attached to “the bare belief” of the Chief Superintendent. A similar conclusion had already been reached in another judgment of the same court delivered by Keane C.J. in Director of Public Prosecutions v. Redmond on the 24th February, 2004.
I agree with the view taken by the Court of Criminal Appeal in this case that the balancing of the conflicting rights and interests can only be determined by the court of trial. The Chief Superintendent’s belief has no special status but is merely a piece of admissible evidence. As the Court of Criminal Appeal pointed out, although the Special Criminal Court was entitled to take into account the fact that the Chief Superintendent refused to identify the basis of his belief, it was also entitled to take into account that the appellant made a false statement to the gardaí and the other corroborating evidence of other witnesses particularly the evidence of Mr. David Mooney which was accepted.
I would dismiss the appeal.
JUDGMENT of MR JUSTICE FENNELLY delivered on the 4th day of April, 2006.
This appeal comes to the Court by way of a certificate of the Court of Criminal Appeal pursuant to section 29 of The Courts of Justice Act, 1924. It concerns the restriction on effectiveness of the right to cross-examine a Chief Superintendent of An Garda Síochána who gives evidence of his belief that a person is a member of an unlawful organisation, but claims privilege as to the sources of his knowledge. Unlike other similar appeals, no point other than the certified one was argued on the appeal in this case.
The appellant was charged before the Special Criminal Court with membership of an unlawful organisation contrary to section 21 of the Offences Against the State Act, 1939, as amended in respect of penalty, by section 2 of the Criminal Law Act, 1976. He was convicted on 19th November 2003 and sentenced to four years imprisonment. He had been released before the hearing of his appeal to this Court. His application for leave to appeal was rejected by the Court of Criminal Appeal on 29th April 2005. That Court, nonetheless, certified the following question for this Court pursuant to the aforementioned section:
(a) The evidence of David Mooney that the accused on 27th May 2002 expressly represented himself and his co-accused as being connected with the IRA, and thereafter did so by implication in that he accepted money proffered by Mr Mooney and others on foot of that representation;
(b) The connection between the accused and his co-accused (William Clare), who pleaded guilty to the charge, who was represented by the appellant as a “top man” involved with the IRA;
(c) The conduct of the accused pursuant to sec 3(1)(a) of the Offences Against the State (Amendment) Act, 1972 (as inserted by section 4 of the Offences Against the State (Amendment) Act , 1998;
(d) The belief offered by Chief Superintendent Kelly (independent of any other evidence in the trial) pursuant to section 3(2) of the Offences Against the State (Amendment) Act , 1972 that on the 29th day of July 2002 the appellant was a member of the IRA;
(e) The answers given by the appellant whilst in Garda custody following the invocation of section 2 of the Offences Against the State (Amendment) Act, 1998.
There was, thus, general evidence, which I will summarise briefly but only to show that it was there and formed an important part of the case. The Chief Superintendent, as has generally happened, claimed privilege as to the basis of his belief. The appellant gave evidence denying that he had ever been a member of an unlawful organisation.
The appellant was tried with a co-accused, William Clare, who pleaded guilty to a charge of membership of an unlawful organisation on the fifth day of the trial. The general evidence against the appellant revolved very much about his association with Mr Clare. Mr David Mooney gave evidence that he returned to Ireland from abroad and of wishing, with others, to open a lap-dancing club. He said he received a telephone call from one Patrick Byrne with whom he arranged a meeting. Mr Clare and the accused attended the meeting together with Mr Byrne. Mr Mooney’s evidence was that he was requested to make a payment to the Continuity IRA to ensure that his club could open. €50,000 was requested. There was conflicting evidence concerning amounts, though there was evidence that €5,000 was paid to William Clare and another €5,000 to the appellant.
Mr Mooney’s evidence and general credibility were strenuously challenged. He was on a Witness Protection programme. The Special Criminal Court accepted the evidence of Mr Mooney, noting, in particular, that it was satisfied that “throughout his evidence it was apparent to the court from his demeanour that he was in fear.” The court was satisfied that “he was indeed in fear of both the accused [i.e., the appellant] and of the Continuity IRA.” He was accepted as a truthful witness.
Mr Patrick Byrne also gave evidence and was also accepted by the Special Criminal Court as being in fear. He was treated as a hostile witness. Nonetheless, he gave evidence that the appellant described his co-accused, William Clare, as a “top man” using that expression in relation to the IRA. Mr Byrne said that Mr Clare had said that the money was to be sent “up North” and for the “wives and children of families whose Dads were in prison.” There was also evidence that the appellant, in interviews after caution with the Garda Síochána, accepted that he was a friend of William Clare.
It is unnecessary to refer to this evidence in any greater detail. It is clear that there was before the Special Criminal Court significant evidence, which was accepted by that court, of the involvement of the appellant with an unlawful organisation.
The Special Criminal Court ruled as follows on the evidence of the Chief Superintendent;
The judgment of the Special Criminal Court concluded with the following sentence:
Based on all of the evidence it had heard, including the evidence of the Chief Superintendent, discussed later in this judgment, the Special Criminal Court concluded beyond reasonable doubt that the appellant was a guilty of the offence of being a member of an unlawful organisation.
I now turn to the evidence relating to the evidence and legal provisions relating to the question certified by the Court of Criminal Appeal. Section 21 of the Offences Against the State Act, 1939 established the offence of being a member of an unlawful organisation. Section 19 provides for the making of Suppression Orders. Such an order was made by the Unlawful Organisation (Suppression) Order 1939 (S.I. 162 of 1939). These and other relevant statutory provisions were summarised by the Special Criminal Court in its judgment. No issue has been raised on this appeal concerning any of these matters.
Section 3 of the Offences Against the State Act (Amendment) Act, 1972 as amended by section 4 of the Offences Against the State ( Amendment) Act 1998 provides:
"(1)(a) Any statement made orally, in writing or otherwise, or any conduct, by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under section 21 of the Act of 1939, be evidence that he was then such a member.
(b) paragraph (a) of this subsection 'conduct' includes—
(i) movements, actions, activities or associations on the part of the accused person, and
(ii) omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive.".
(2) 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, 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.”
Q: Can I ask you Chief Superintendent whether you base that belief on any matter discovered during investigation into the activities of Martin Kelly at that [sic, recte, “the”] time of after his arrest on the 29th July2002?
A: I did not base that belief on the arrest of Martin Kelly on the 29th July 2002 or any statements or admissions or conduct of him at that particular time as a result of that arrest.”
He added that the sources of his information were both human and non-human. This appears to mean that some information came from garda sources and some from external sources. Asked to name the persons who were not garda sources, he said: “I couldn’t disclose the names because to do so will endanger the people’s lives.”
The defence did not challenge in any way the evidence of the Chief Superintendent in support of his claim to privilege, based as it was on the two distinct, though related reasons. Nonetheless, counsel for the accused submitted that the Special Criminal Court should refuse to permit that claim of privilege, stating that, in order to have a fair trial, the accused must be told the identities of the informants that went to make up the opinion of the Chief Superintendent. Counsel cited the decision of this Court in Director of Public Prosecutions v The Special Criminal Court  1 I.R. 60. Counsel accepted that normally there would be privilege in respect of the identity of an informer but submitted that the case cited established an exception under the name of “innocence at risk.”
In the course of its ruling, the Special Criminal Court stated that it was satisfied that the disclosure of the sources upon which the Chief Superintendent relied for his belief “would have the effect of endangering ongoing Garda operations against the IRA and would expose these sources, and particularly non-Garda sources to a real and substantial risk of serious harm or death.” The Court relied, in making its ruling, on other evidence, mentioned above, of the fact that a number of witnesses before the Court were in a genuine state of fear for their own safety.
The Court cited the dictum of Pollock, C.B. in Attorney General v Bryant  15 M & W, vol 169 at 185:
The Special Criminal Court disallowed the defence objection to the claim of privilege in reliance on the statement of O’Flaherty J in Director of Public Prosecutions v The Special Criminal Court, cited above. The Court held that, balancing the competing interests of, on the one hand the public in detecting and deterring crime together with that of informants in their personal safety, and, on the other hand, the accused in having a fair trial, preference should be given to the former.
The Court of Criminal Appeal
The findings of fact made by the Special Criminal Court were reviewed by the Court of Criminal Appeal, which concluded:
In the Court of Criminal Appeal, counsel for the appellant did not argue that a claim for privilege should not be entertained but rather that a fair trial required that there be some investigation as to whether it is reasonable to protect a claim of privilege in any particular case. The Court of Criminal Appeal ruled that “there is a long established principle that in certain circumstances the gardaí are entitled to refuse to disclose sources of information.” It accepted that “if informers cannot be guaranteed immunity, they would not inform” and that “there is a serious public interest in ensuring that persons who might be subject to intimidation and threats, if not actual danger of their life, should be protected to ensure that information in their possession will be given to the gardaí to assist in the prosecution of wrongdoers.” The court went on to rule as follows on the matter which is the subject of the certified question:
The appellant, in lengthy written submissions, accompanied by extensive citation from authorities, including cases from the European Court of Human Rights, the House of Lords and the United States Supreme Court, asks this Court to consider whether the refusal of the Special Criminal Court to allow the defence to cross-examine the Chief Superintendent about the sources of his belief that the appellant was a member of an unlawful organisation violated the constitutional right of the appellant to a fair trial.
At the hearing, Mr Peter Finlay, Senior Counsel, in able and comprehensive submissions, argued that Article 38 is essentially a procedural provision for the protection of the fairness of the process by which adjudication in a criminal trial takes place. He argued that the heart of the adversarial system is the testing of evidence that leads to the discovery of the truth. Thus, the general principle of the right to cross-examine must be protected.
On the other hand, Mr Finlay accepted that informer privilege must also be protected. Where the right to cross-examine is denied, the court must address the issue of the weight of the evidence and cannot convict on opinion evidence alone. In particular, evidence of the accused denying the charge should negative the opinion of the Chief Superintendent.
Mr George Bermingham, Senior Counsel, pointed out that section 3(2) of the Offences Against the State (Amendment) Act, 1972 is very clear; the Chief Superintendent’s belief “shall be evidence.” Moreover, any witness may advance a claim of privilege, such as was upheld in this case. Thus, admissible evidence was admitted and a claim of privilege was upheld. The only issue is the weight to be attached to the evidence. The act says only that it is evidence, not that it is conclusive. The factors to be considered include whether the evidence has been challenged in any fashion, whether in cross-examination or in evidence or whether any effort is made to undermine the evidence of the Chief Superintendent, such as by showing that it has been rejected on an earlier occasion. Following a review of the operation of section 3(2) over the years since it came into force, Mr Bermingham said that, while the Special Criminal Court does have regard to all relevant circumstances in assessing the weight of the evidence of a Chief Superintendent, to say that no weight should be attached to it would be tantamount to the repeal of the provision.
Consideration of the certified question
I turn now to consider the approach which should be adopted to the certified question. There is a surprisingly small amount of authority on the operation of the section, considering that it has been in force for more than thirty years and the number of prosecutions which have been brought. In particular, there is no authority pointing to the conclusion which should follow from the particular combination of circumstances which have arisen in the present case. The situation where the Chief Superintendent gave evidence of his belief, that he was cross-examined and that he claimed privilege is not new. Nor is it unprecedented that the accused gave evidence denying membership of an unlawful organisation. This has apparently happened in the past. We were informed that, in such circumstances, where the sole prosecution evidence was the opinion of the Chief Superintendent, the Special Criminal Court usually acquitted. At any rate, this particular set of circumstances has not previously been considered by this Court and probably not by the Court of Criminal Appeal. The singular point is whether the fact that an accused person, who is prepared to give evidence denying membership of an unlawful organisation, is denied the right to cross-examine the Chief Superintendent as to the sources of his belief has had a fair trial.
This point is both important and difficult. It sets the policy of the legislation in suppressing dangerous and threatening unlawful organisations against the presumption of innocence and the imperative of a fair trial.
It is well to commence by recalling the nature of an unlawful organisation as defined by section 18 of the Offences Against the State Act, 1939:
(b) advocates, encourages, or attempts the procuring by force, violence, or other unconstitutional means of an alteration of the Constitution, or
(c) raises or maintains or attempts to raise or maintain a military or armed force in contravention of the Constitution or without constitutional authority, or
(d) engages in, promotes, encourages, or advocates the commission of any criminal offence or the obstruction of or interference with the administration of justice or the enforcement of the law, or
(e) engages in, promotes, encourages, or advocates the attainment of any particular object, lawful or unlawful, by violent, criminal, or other unlawful means, or
(f) promotes, encourages, or advocates the non-payment of moneys payable to the Central Fund or any other public fund or the non-payment of local taxation, shall be an unlawful organisation within the meaning and for the purposes of this Act, and this Act shall apply and have effect in relation to such organisation accordingly.”
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. Hence the need for an unusual type of evidence. Section 3(2) of the Offences Against the State (Amendment) Act, 1972 has been quoted above. The Oireachtas has chosen to designate only a person holding the rank of Chief Superintendent of the Garda Síochána as a witness whose belief may be may be accepted as evidence by the courts.
This is evidence of a quite exceptional kind. Whether or not an accused person is a member of an unlawful organisation is a question of fact. The Chief Superintendent gives evidence not of fact but of belief. His belief does not have to be based on direct knowledge of the involvement of the accused in the unlawful organisation in question. It is patently based on statements of others, whether inside or outside the force. It is probably frequently based on intelligence available to the Garda Síochána. That is precisely what is permitted by the section. Such evidence, if given openly, would infringe the hearsay rule, an objection which is circumvented by the section. The Chief Superintendent simply says what his belief is.
Cases on section 3(2)
The courts have treated this problem with circumspection. It is well known, as was confirmed by Mr Bermingham, that, in the early years after 1972, prosecutions were generally mounted on the basis of a Chief Superintendent’s opinion alone. At that time, it was the general practice of persons charged with membership to refuse to recognise the court, or to plead or, indeed, to take any part in the proceedings. This, no doubt, represented the attitude and policy of the principal unlawful organisation, the IRA, that it did not recognise the organs of the State.
The response of the Court of Criminal Appeal can be seen from the case of People (DPP) v Ferguson (Unreported 27th October 1975). It appears from the report that the only evidence was that of a Chief Superintendent, which was not challenged in any way. The accused did not give evidence. O’Higgins C.J. delivered the judgment of the court. He said that it had to be recognised that section 3(2) of the Act of 1972 “represented the law of the land” and that “it was there and the law must be taken as it was.” He proceeded, however, to observe:
While the Special Criminal Court in DPP v Ferguson, as well as in other later cases, has countenanced conviction based on the opinion of the Chief Superintendent alone, the practice and approach has developed substantially.
A challenge was brought to the constitutionality of section 3(2) of the Act of 1972 in O’Leary v Attorney General  1 I.R. 102. The plaintiff, in that case, claimed that the section infringed the constitutionally guaranteed presumption of innocence. “By providing,” it was said, “that the statement of the Chief Superintendent is to be evidence that an accused person is a member of an unlawful organisation the section ……shifts the burden of proof to an accused person and requires him to establish, once evidence is adduced, that he is not a member of an unlawful organisation thus depriving him of the presumption of innocence to which he is entitled.” Costello J, giving judgment in the High Court, rejected this submission, saying:
As Mr Finlay points out, the O’Leary case did not consider any effect of the restriction on the cross-examination of the Chief Superintendent on the fairness of the trial. There was no appeal to the Supreme Court on this point.
Some time after the non-recognition phase, accused persons commenced to recognise the Special Criminal Court and to contest the charge of membership both by cross-examination and by going into evidence. In response, the prosecution in a number of cases gathered incriminating evidence, for example of associations of the accused person, to be put to the accused in cross-examination, though not included in the book of evidence. The Court of Criminal Appeal disapproved this practice in the case of People (Director of Public Prosecutions) v Cull (Unreported 24th November 1980 2 Frewen 36). Gannon J, speaking for the court said that an accused person should be “informed of the nature and substance of the evidence intended to be offered in support of the charge preferred against him", which forms “part of the essential requirements of a fair trial.” Where the evidence had been known to the prosecution in sufficient time to have been included in the evidence used against him but excluded, it should not have been put to him for the first time in the course of his cross-examination.
McCracken J, delivering the judgment of the Court of Criminal Appeal on 2nd April 2003 in People (Director of Public Prosecutions) v Gannon, considered the above passages from the Ferguson and O’Leary cases in the context of a contention that the Ferguson passage constituted “a direction to the [Special Criminal Court] to attach additional cogency and weight to the evidence of the Chief Superintendent because the applicant did not give evidence,” which would infringe the applicant’s right to silence. In the Gannon case, as was held by the Court, there was, in spite of certain points to the contrary made on behalf of the prosecution, no evidence against the accused other than the belief of the Chief Superintendent, who had not been cross-examined. The accused did not give evidence. The Court of Criminal Appeal preferred the approach of Costello J in the passage from O’Leary quoted above to that from the Ferguson case. It held:
Two further cases were cited to this Court. They were the cases respectively of People (Director of Public Prosecutions) v Redmond (Unreported 24th February 2004) and People (Director of Public Prosecutions) v Mulligan (Unreported 17th May 2004). In each of these cases, the judgment of the Court of Criminal Appeal was delivered by Keane C.J. In the latter case, while there was evidence apart from the belief of the Chief Superintendent, the court ruled on the effect of section 3(2). Keane C.J. said that that “the legislature has provided that that (the belief of the Chief Superintendent ) is to be evidence and……the weight to be given to that evidence then was entirely a matter for the court of trial.” He went on to acknowledge that:
The Court of Criminal Appeal also pointed out in People (Director of Public Prosecutions) v Mulligan that the Chief Superintendent had claimed privilege, but said that counsel had not asked the court of trial to rule on the matter, which might have involved the court in inspecting documents, insofar as documentary evidence had been relied upon by the Chief Superintendent in reaching his opinion. The Court of Criminal Appeal did not, therefore, have to rule on the consequences of denial of access to information contained in such documents.
Counsel for the prosecution has informed the court that it is no longer the practice of the Director of Public Prosecutions to prosecute on a charge of membership of an unlawful organisation based on the evidence of a Chief Superintendent alone and has also suggested that the Special Criminal Court will not convict on the basis of such evidence alone. Nonetheless, it remains the fact that the Court of Criminal Appeal has on several occasions explicitly upheld the right of that court to convict in those circumstances. The factual situation was summed up in the Report of the Committee to Review the Offences Against the State Acts, 1939-1998 (published May 2002 at page 123) as follows:
A person may be convicted on the evidence of a Chief Superintendent alone. Where the Chief Superintendent is not cross-examined at all and still less questioned as to the sources of his belief, and where no other basis is laid for questioning the truth or cogency of his evidence, it is difficult to envisage any court deciding to acquit. To quote the Court of Criminal Appeal (per Gannon J) in People (Director of Public Prosecutions) v Cull at page 41:
Put otherwise, a court of trial is entitled to assume that an officer of the rank of Chief Superintendent will give evidence of his belief that an accused person is a member of an unlawful organisation only when he has satisfied himself of this fact beyond reasonable doubt. Hence, even when that is the only evidence, a court is entitled to act on it, in the absence of some challenge or question sufficient to raise such a doubt.
Where, as here, the accused wishes to mount a full defence to the charge of membership, the position is quite different. The specific circumstances which have arisen in the present case have not previously been the subject of a ruling by the Court of Criminal Appeal.
The Chief Superintendent merely states that he is of the belief that the accused is a member of an unlawful organisation. That type of evidence is, in itself, a novelty. Under the normal rules of evidence, only expert witnesses are permitted to give evidence of opinion or belief and even then not on simple questions of fact. The Chief Superintendent may, no doubt, be regarded as an expert in his allotted field. That, however, is not the real problem. The real problem is that, where privilege is claimed, as it inevitably is, the defendant does not know the basis of that belief. He does not know the names of the informants or the substance of the allegations of membership. Without any knowledge of these matters, the accused is necessarily powerless to challenge them. Informants may be mistaken, misinformed, inaccurate or, in the worst case, malicious. None of this can be tested.
None of this means, in my view, that courts should generally or at all disallow claims of privilege. The evidence Chief Superintendent Kelly gave before the Special Criminal Court was perfectly plausible, indeed compelling. The Court of Criminal Appeal was right in expressing the views I have quoted above. The Special Criminal Court was entitled to accept it. It is in the nature of an unlawful organisation to threaten, intimidate and endanger the lives of those who co-operate with the police or give evidence against members. Nor do I think, however, that this is truly a case of informer privilege. Where that issue has arisen, the actual direct evidence tending to establish the guilt of the accused will have been given to the court. In the present case, the accused is denied access to the very evidence itself which tends to establish his guilt. Only the Chief Superintendent is aware of that evidence, but, for what must be accepted as perfectly good reasons, is constrained from revealing it to the defence or to the court.
In any other case, the courts will not be permit evidence relevant to the guilt or innocence of the accused to be withheld. The courts have developed over recent years extensive rules and principles requiring the prosecution authorities to preserve and to disclose to the defence in advance of trial any materials in the possession of the prosecution which may give rise to a reasonable possibility of securing evidence relevant to the guilt or innocence of the accused. (see Braddish v Director of Public Prosecutions  3 IR 127; Dunne v Director of Public Prosecutions  2 IR 305; Bowes v Director of Public Prosecutions; McGrath v same  2 I.R. 25). It is implicit in this line of case law that the prosecution must disclose to the defence any material of possible relevance to the guilt or innocence of the accused. In several of these cases, the Director of Public Prosecutions was prohibited from continuing with prosecutions when a real risk of an unfair trial flowed from non-compliance with these principles.
Mr Finlay, however, has preferred to lay his case very firmly on the ground of denial of a fair trial as a result of infringement of the effective right to cross-examine witnesses, meaning, in the first instance the Chief Superintendent and, by extension any informants of the Chief Superintendent who might be identified if he revealed his sources.
The right to cross-examine
It is a proposition so obvious as scarcely to need no authority that the right to cross-examine one’s accusers is fundamental to our criminal procedures. It is axiomatic that every witness must submit himself to the rigours of cross-examination, to having his evidence questioned, tested, challenged and contradicted and his credit impeached. Cross-examination plays a pivotal role in all adversarial proceedings under the common-law system. As it happens, authority is not lacking. I will refer to three decisions of our courts.
First among these is the celebrated case of In re Haughey  I.R. 217, which concerned, of course, the procedures of the Public Accounts Committee of Dáil Eireann. The expression “in re Haughey” has become a shorthand reference for the most basic procedural rights in a wide range of proceedings. As it happens, it stands also as a very straightforward authority for the proposition that an accused in a criminal trial may not be denied the right to cross-examine. The Committee had certified Mr Pádraic Haughey to the High Court for contempt in failing to answer its questions and relied, for the purposes of the prosecution of Mr Haughey before the High Court, on an affidavit of the chairman of the Committee. The High Court declined to permit cross-examination, ruling that the matters on which he wished to cross-examine were inadmissible on the issue of his guilt. O’Dalaigh C.J., delivering the judgment of the majority of the Supreme Court overruled this decision, stating, at paragraph 261:
O’Dalaigh C.J. also and more famously identified the procedural rights guaranteed to a person in the position of Mr Haughey. He did so largely by reference to procedural rights at a criminal trial. He accepted, at page 263, that a person the subject of examination by the Committee was entitled to the following rights as propounded on behalf of the plaintiff:
“(a) that he should be furnished with a copy of the evidence which reflected on his good name;
(b) that he should be allowed to cross-examine, by counsel, his accuser or accusers;
(c) that he should be allowed to give rebutting evidence;
(d) that he should be permitted to address, again by counsel, the Committee in his own defence.”
The actual context of this aspect of In re Haughey is instructive for the purposes of this case. A Chief Superintendent of the Garda Síochána gave evidence which, he said, was from confidential sources which he was not at liberty to reveal (see page 262 of the report). This evidence purported to indicate that Mr Haughey had paid over money to the Chief of Staff of the IRA, was otherwise involved in meetings with an IRA leader and had made arrangements to have two consignments of arms handed over to the IRA. Mr Haughey, however, was, in the eyes of a Committee, a mere witness and was not entitled to cross-examine another witness including the Chief Superintendent. O’Dalaigh C.J. characterised the ensuing situation, at page 262, as follows:
It was in these circumstances that counsel for Mr Haughey proposed the four rights summarised above, which have become known as “re Haughey rights.” O’Dalaigh C.J. held that the position of Mr Haughey before the Committee was not that of a witness but of a party, since his conduct was the very subject matter of the Committee’s examination. He answered his own question concerning the rights available to Mr Haughey in the following much-cited passage from page 263:
One aspect of the judgment of O’Dalaigh C.J. remains somewhat obscure. While he appeared to regard as unjust the fact that Mr Haughey was faced with accusations made by the Chief Superintendent based on undisclosed sources, he does not appear to have gone beyond ruling that Mr Haughey should have been entitled to cross-examine other witnesses, implicitly including the Chief Superintendent. It appears that the refusal of the right to cross-examine the chairman of the Committee was sufficient to persuade a majority of the Court to set aside Mr Haughey’s High Court conviction for contempt of the Committee. Thus, although there are indications that it was unfair that Mr Haughey was subjected to damaging imputations on his good name and character from the evidence of the Chief Superintendent, who declined to disclose his sources, the Court did not expressly decide whether that was sufficient to warrant setting aside the conviction.
In re Haughey was a principal authority cited in another celebrated and oft-cited decision, that of Gannon J in State(Healy) v Donoghue  I.R. 325 at 335. The learned judge identified the principal rights guaranteed by Article 38.1 of the Constitution in respect of a criminal trial:
Although State (Healy) v Donoghue was directly concerned with legal aid, the principles it enunciated have been very generally accepted ever since. The Supreme Court approved the dictum of Gannon J in the appeal from his decision.
This Court cited both of these authorities in extenso in its judgment, delivered by Hamilton C.J., in Donnelly v Ireland and others  1 I.R. 321. The plaintiff had challenged the constitutionality of a number of provisions of the Criminal Evidence Act, 1992, which provide for the receipt of evidence on the trial of certain offences, including, in particular, sexual offences, by means of live video link. The contention was that permitting witnesses to give evidence in this way infringed the constitutional guarantee of fair procedures insofar as the accused was not physically able to confront his accusers. While the Court rejected the claim to a right to direct physical confrontation, it reiterated established principles including the primacy of the right to a fair trial. The judgment of the Court contains the following at page 348:
Referring to State (Healy) v Donoghue, the Court said:
The Court cited a number of decisions of the Supreme Court of the United States, which had had to consider the very point before the Court. The sixth amendment to the US Constitution specifically includes a “right to be confronted with the witnesses against him” (the accused). The Court continued at page 356:
In effect, the Court accepted that the notion of fair procedures at a criminal trial guaranteed by Article 38 of the Constitution encompasses a right for the accused to confront his or her accusers. It merely says that such a right does not require that the witness and the accused be present in the same courtroom while the evidence is being given. The following passage at page 357 shows how the balance is maintained:
Mr Finlay cited extensively from decisions of the Supreme Court of the United States and of the European Court of Human Rights.
Supreme Court of the United States
In respect of the first, it can be said that our courts, as this Court did in Donnelly, have often found decisions of respected courts of other jurisdictions highly persuasive subject to the need to be careful that the constitutional provisions are sufficiently comparable. On the point of the right to cross-examine, the US reports positively bristle with declarations of the impregnability of that right and condemnations of infringements. It will suffice to cite two authorities.
In Greene v McElroy, 360 U.S. 474 (1959), Warren C.J. reviewed what he called “[c]ertain principles [which] have remained relatively immutable in our jurisprudence” and which “have ancient roots.” In respect of the right of cross-examination, having referred to a number of authorities, he cited with approval from 5 Wigmore on Evidence (3d ed. 1940) 1367:
In Pointer v Texas, 380 U.S. 400 (1965), a statement of a witness not present at the trial, though he had testified at a preliminary hearing, was introduced in evidence. Black J, delivering the judgment of the court stated:
Article 6(3) of the European Convention on Human Right and Fundamental Freedoms lays down principles in respect of criminal trials:
“Everyone charged with a criminal offence has the following minimum rights:
"(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
Mr Finlay has cited two decisions of the Strasbourg Court concerning criminal convictions in Dutch courts. The reports show that Dutch criminal procedure permitted evidence at trial to include, for example, anonymous statements contained in official police reports. The Court (in Kostovski, cited below at paragraph 29) described Dutch criminal procedure, following certain judicial rulings, in practice as follows:
In cases such as Kostovski v Netherlands  12 EHRR, the European Court has insisted that there must be some degree of right to confront and challenge witnesses. In that case, a Dutch court had convicted the applicant of armed robbery. The conviction was based to a decisive extent on reports of statements made by anonymous witnesses, who had been heard by the police in the absence of the applicant and his counsel. At the trial the court heard the evidence of examining magistrates and a police officer who had interviewed the anonymous witnesses. The Dutch government argued that the use of anonymous evidence stemmed from an increase in the intimidation of witnesses and was based on a balancing of the interests of society, the accused and the witnesses.
In my view, there is a striking analogy between the procedure of the Dutch court which was condemned by the European Court in Kostovski and the problem presented by the present appeal.
The Court firstly stated that:
The Court then noted that such an opportunity had not been afforded to the applicant in that case. The anonymous witnesses had not been heard at the trial, their declarations had been taken in the absence of the applicant or his counsel and, accordingly, they could not at any stage be questioned by or on behalf of the applicant. The Court then observed (paragraphs 42 and 43):
The latter feature of the case compounded the difficulties facing the applicant. If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility. The dangers inherent in such a situation are obvious.
Furthermore, each of the trial courts was precluded by the absence of the said anonymous persons from observing their demeanour under questioning and thus forming its own impression of their reliability."
The Court acknowledged the importance of the struggle against organized crime, but, nonetheless, found that there had been a violation of Article 6 of the Convention:
According to its subsequent decision in Doorsen v Netherlands 22 EHRR 330, these paragraphs should be read as implying that the use of anonymous statements at trial is not, in all circumstances, incompatible with the Convention. It is, however, difficult to avoid the conclusion that it modified its stance in Doorson. There the court said (paragraph 70 of the judgment):
Judges Ryssdal and de Meyer delivered a dissenting judgment, in which they said:
“It is not only in drugs cases that problems may arise in relation to the safety of witnesses. It is not permissible to resolve such problems by departing from such a fundamental principle as the one that witness evidence challenged by the accused cannot be admitted against him if he has not had an opportunity to examine or have examined, in his presence, the witness in question.”
In subsequent years the European Court has adhered to the principle that the fair administration of justice holds an important position in a democratic society and that measures restricting the rights of the defence should be restricted to what is strictly necessary (see, for example, Mechelen v Netherlands 1997 25 EHRR 647; Rowe v United Kingdom 2000 30 E.H.R.R. 1). Recognition of the legitimate public interest in protecting police sources of information or the safety of informers or witnesses has led to the acceptance of the possible justification of the withholding of relevant information from disclosure to the defence.
The House of Lords
In the United Kingdom, there has been developed, in part by statute and in part by judge-made law, the possible appointment of counsel described as “special advocates,” to argue the interests of the defence without the necessity for disclosure of the relevant information to the defendant. Lord Bingham, delivering the opinion of the Appellate Committee in R v H  2 AC 134), provided a comprehensive account of the development of this procedure. He also made the following remarks concerning the tension between the objectives of a fair trial and the public interest in protecting confidential information:
“Circumstances may arise in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of serious prejudice to an important public interest. The public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers and undercover agents, or the use of scientific or operational techniques (such as surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations. In such circumstances some derogation from the golden rule of full disclosure may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial.”
The solution of special advocates appears to have been firmly rejected in this jurisdiction. (see Burke v Central Independent Television plc  2 I.R. 61; Director of Public Prosecutions v Special Criminal Court, cited above). Our courts have preferred to resolve conflicts between the conflicting imperatives of a fair trial and the protection of public confidential information by asking the responsible court itself to examine the material. This, as I have already mentioned was suggested by Keane C.J. in the case of Director of Public Prosecutions v Mulligan, mentioned above and was specifically ordained by this Court in Director of Public Prosecutions v Special Criminal Court. In that case, O’Flaherty J commented, at page 87 of the judgment, on the conflict between the principle of informer’s privilege and the preservation of law and order. Having referred to a dictum in a Canadian case that ”the right to disclosure is not to trump privilege,” he remarked that “they must both be accommodated.”
The essential question to be answered in this case is whether the undisputed restriction on the right of the accused to cross-examine his accusers and to have access to the materials relied upon by the prosecution has been unduly restricted so as to render his trial unfair and his conviction unsafe. I believe that all of the authorities cited from all relevant jurisdictions demonstrate that there is an inescapable obligation on the courts to guarantee the overall fairness of a trial. I also believe that, in our legal system, the right to cross-examine one’s accusers is an essential element in a fair trial. This is not to say that restrictions may not be imposed in the interests of overall balance and the efficiency of the criminal justice system. While there may be derogations for overriding reasons of public interests from normal procedural rights of the defence, these must not go beyond what is strictly necessary and must, in no circumstances, to use the language of Lord Bingham, “imperil the overall fairness of the trial.”
I believe that the claim of privilege made by the Chief Superintendent constituted an undoubted infringement of the normal right of the accused to have access to the material which underlay the belief expressed. To that extent, it constituted a restriction on the effectiveness of the right of the appellant to cross-examine his true accusers and it had, for that reason, the potential for unfairness.
On the other hand, Mr Bermingham, for the Director of Public Prosecutions has pointed to a number of compelling circumstances to justify the course of action which has been adopted. Firstly, the exceptional resort to the evidence of the Chief Superintendent applies only in the case of organisations which, in their nature, represent a threat, not only to the institutions of the State, but to individuals who are prepared quite properly to cooperate with the State in securing the conviction of members of such organisations. This makes it possible to justify some restriction on direct access on behalf of the accused to the identity of his accusers. Secondly, the legislature has allowed such evidence to be given by members of the Garda Síochána of particularly high rank, who can be presumed to have been chosen for having high standards of integrity. Thirdly, the procedure applies only while there is in force a declaration that “the ordinary courts are inadequate to secure the effective administration of justice….” The offence is a scheduled one; thus the cases will be heard only by the Special Criminal Court, a court now composed of judges who must be presumed to apply only the highest standards of fairness. I also agree with Geoghegan J that it is relevant that the section enjoys a presumption of constitutionality. Any restriction on the right to cross-examine, which it implies, must be limited to the extent that is strictly necessary to achieve its clear objectives. I believe that the circumstances I have mentioned constitute sufficient justification for its introduction, while, at the same time, demonstrating a concern to respect such necessary limitations.
I return to the particular circumstances of the present case. It is of crucial importance that there was quite extensive evidence, other than the evidence of the Chief Superintendent, which convinced the Special Criminal Court that the appellant was a member of the IRA on the relevant date. The Court said that it took into account the fact that the Chief Superintendent had claimed privilege. It did not, on the other hand, explain this remark any further. The court should, in my view, have explained the weight, if any, which it attached to the evidence of the Chief Superintendent, in view of the claim to privilege. However, in the particular circumstances of this trial, I do not think there was any overall unfairness. I do not think that the undoubted restriction on the rights of the accused went further than was strictly necessary to protect other potential witnesses or informants. I do not see how the identity and safety of those other witnesses could have been protected otherwise. Thus, it was, in the literal sense necessary to prevent the defence from learning who they were, which, I turn, made it inevitable that the right to cross-examine would have to be restricted. The matter might be quite different in a case where the evidence of the Chief Superintendent was the sole plank in the prosecution case, where privilege had been successfully claimed and the accused had given evidence denying the charge. In such a case, there would be a powerful argument based on denial of “in re Haughey” rights.
I am satisfied that, in the particular circumstances of this appeal there was no unfairness in the trial of the appellant. I would dismiss the appeal.