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THE SUPREME COURT
[Appeal No. 370/2008]
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924
DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice John MacMenamin delivered the 26th day of March, 2015
2. The first question concerns the status, at trial, of evidence of a Chief Superintendent’s belief of an accused’s membership of an illegal organisation involved in terrorism.
3. Section 3(2) of the Offences Against the State (Amendment) Act, 1972 (OASA) provides that:
5. On the 31st October, 2008, on application by counsel for the appellant, the Court of Criminal Appeal issued a certificate, pursuant to s.29 of the Courts of Justice Act, 1924, stating that the appeal involved a point of law of exceptional public importance, and that it was desirable in the public interest that an appeal should be taken to the Supreme Court thereon. The point certified was as follows:
7. A subsequent complaint to the ECtHR, claiming violation of Mr. Kelly’s rights under Article 6 and Article 13 ECHR was dismissed as being manifestly ill-founded, at the admission stage, by the Third Section of the ECHR (Kelly v. Ireland, Application No. 41130/06, delivered on the 14th December, 2010).
The Point of Intersection Between the Two Issues
9. Both DPP v. Donnelly & Ors.  IECCA 78 and Donohoe v. Ireland (Application No.19165/08)  ECHR 1363 (12th December, 2013) concerned the operation of s.32 OASA in our courts. The judgment in DPP v. Donnelly & Ors.  IECCA 78 very fully explained the manner in which a trial court treated such evidence. It set out how a trial court balanced a series of factors to ensure fairness. This was referred to extensively by the ECtHR in Donohoe v. Ireland (Application No.19165/08)  ECHR 1363 (12th December, 2013). Donohoe v Ireland concerned the circumstances in which, in compliance with Article 6 of the European Convention on Human Rights, a court might convict an accused person of membership of an illegal organisation, where the evidence, inter alia, consisted of the belief of a Chief Superintendent of An Garda Siochana. The facts in both DPP v. Donnelly and Donohoe v Ireland bear a similarity to those at the appellant’s trial, as this judgment explains. The manner in which s.3(2) OASA 1972 operates, as outlined and explained in DPP v. Donnelly, and as further described in Donohoe v Ireland, was such that the ECtHR held there had been no violation of the applicant’s (Mr. Donohoe’s) rights under Article 6 ECHR. Thus, by the time the point certified by the Court of Criminal Appeal came on for hearing, the certificate was effectively redundant, if viewed in isolation.
10. However, as a result of the DPP v. Damache  IESC 11 decision, the appellant now seeks to raise a further point in the s.29 appeal, now effectively requesting this Court to discount from its consideration evidence which was adduced at trial, as a result of the search carried out pursuant to s.29 of the Offences Against the State Act. Relying on DPP v. Damache  IESC 11, counsel submits that this Court should hold that the additional evidence should be treated as having been unconstitutionally obtained, and, therefore, inadmissible. This would then place in a different perspective the actual body of evidence upon which the Special Criminal Court convicted, and the Court of Criminal Appeal acted, in dismissing the appeal. The question, considered later, is whether the appellant should now be permitted to rely on the ‘Damache point’ which he now seeks to raise?
11. In order further to understand the context in which these points arise, it is necessary to deal with a series of relevant events in their chronological sequence.
The First Issue: ‘Belief Evidence’ - s.3(A) OASA 1972
13. On the 14th December, 2004 the appellant’s home was searched, on foot of a search order issued, pursuant to s.29 of the Offences Against the State Act, 1939, as amended, by Detective Superintendent O’Sullivan of the Special Detective Unit. This warrant was issued prior to the determination of this curt in DPP v. Damache  IESC 11. Detective Superintendent O’Sullivan was a member of An Garda Siochana team involved in the search operation, and in the subsequent prosecution of the accused and his co-accused. The appellant was arrested, pursuant to s.30 of the Offences Against the State Act, 1939, and searched while in custody. During that search a document was found which was described as, and held to be, an IRA “debriefing document”.
14. On the same date, the appellant was further detained and interviewed, pursuant to s.30 of the Offences Against the State Act, during which interview, s.2 of the Offences Against the State (Amendment) Act, 1998 was invoked. A number of the accused’s responses were found by the trial court to give rise to an inference that he was a member of the IRA, as charged.
15. In the course of interviews, the appellant denied membership of the IRA. At one point, he had been observed by members of An Garda Siochana entering a laneway in Inchicore in the company of Mr. Wiggins, one of the co-accused. The appellant claimed he was in his mother’s house at the time. The appellant made no reply when the ‘adverse inference provisions’, pursuant to s.2 of the Offences Against the State (Amendment) Act, 1998, were invoked, and he was questioned about the IRA debriefing document found during the search. The accused’s trial was adjourned pending the outcome before this court of the appeal in DPP v. Kelly  IESC 20.
16. On the 4th April, 2006 this Court delivered judgment in the case of DPP v. Kelly  IESC 20. Subsequently, at the resumed trial, the appellant was convicted on the 27th July, 2006 by the Special Criminal Court of having been a member of an unlawful organisation on the 14th December, 2004.
17. In summary then, the matters weighed by the Special Criminal Court consisted of (i) the belief evidence given by Chief Superintendent Philip Kelly, the Head of the Special Detective Unit; (ii) the debriefing document found on the appellant during the course of the search; (iii) adverse inferences from the appellant’s silence in garda interviews while in custody; and (iv) the inconsistency, in that the accused had given an account of his movements on a particular date and time, to the effect he had been in his mother’s home when he had been observed in the laneway in Inchicore with Mr. Wiggins, the co-accused. The belief evidence against the appellant, therefore, was not decisive, it was not solely confined to Chief Superintendent Kelly’s opinion, but consisted of a range of other materials, upon which the trial court based its finding of guilt.
18. Later, on the 24th March, 2007 the appellant was convicted of membership of an illegal organisation, on the evidence just described. He was sentenced to a term of 6 years imprisonment, backdated to the 15th June, 2006.
The Court of Criminal Appeal
20. Having considered the case law, and in particular DPP v. Kelly  IESC 20, the Court of Criminal Appeal came to the conclusion that the Special Criminal Court had approached the question of proofs correctly.
21. It is necessary now to further analyse what were the issues which fell for determination before the Court of Criminal Appeal. The focus of the judgment before that court was on the question of whether or not the trial court had relied on other “external” evidence, over and beyond the opinion of the Chief Superintendent. Referring to the members of the Special Criminal Court, Geoghegan J., who presided in the Court of Criminal Appeal stated:
22. Referring to the judgments of this Court in DPP v. Kelly  IESC 20, Geoghegan J. went on to draw attention to a number of the factors identified as being of significance in addressing opinion evidence. These included:
25. On the 23rd January, 2009, the appellant instructed his legal advisors to seek an order from this Court, pursuant to s.29(5A) of the 1924 Act, seeking leave that argument be heard and a determination made on the following issues:
(b) Whether the learned Court of [Criminal] Appeal erred in failing to hold that the trial court had failed to counter-balance the restriction of the applicant’s right to cross-examine Chief Superintendent Kelly, and had failed to ensure quality of arms.
(c) Whether the learned Court of [Criminal] Appeal erred in failing to hold that the trial court attached undue weight to the bare belief of Chief Superintendent Kelly in the following circumstances:
(ii) The information was based on untested anonymous witness by proxy who is not a member of An Garda Siochana; and
(iii) May have been a paid informer.” (emphasis added)
No Damache Issue Raised in the First Application
28. On the 14th December, 2010, taking into account remission and backdating, the appellant completed serving the 6 year sentence which had been imposed on him by the Special Criminal Court. At this point the constitutional point raised in DPP v. Damache  IESC 11 comes into play.
The High Court Judgment in Damache
The Supreme Court Damache Judgment
31. On the 11th November, 2013 this court gave notice that the appellant’s s.29 appeal would be listed in the backlog list on the 22nd November, 2013. By then, six years had elapsed since the trial and conviction. With these events recorded, it is now necessary to set out other developments on the evidential status of ‘belief evidence’ under s.3(2) OASA 1972.
DPP v. Donnelly
The ECtHR Judgment in Donohoe
35. The ECtHR delivered judgment in Donohoe v. Ireland (Application No.19165/08)  ECHR 1363 (12th December, 2013) on the 12th December, 2013. Having outlined the circumstances in which the Chief Superintendent Philip Kelly, (also referred to as ‘PK’ in the passage cited below) had given evidence to the Special Criminal Court, and adverting to the additional counter-balances which had been taken into account by the trial court, the ECtHR observed:
Firstly, the court reviewed the documentary material upon which (Chief Superintendent) sources were based in order to assess the adequacy and reliability of his belief. While the Court does not regard such a review, in itself, to be sufficient to safeguard the rights of the defence (Edwards and Lewis v. the United Kingdom, cited above, § 46), it nevertheless considers that the exercise of judicial control over the question of disclosure in this case provided an important safeguard in that it enabled the trial judges to monitor throughout the trial the fairness or otherwise of upholding the claim of privilege in respect of the non-disclosed material (see McKeown v. the United Kingdom, no. 6684/05, § 45, 11 January 2011).
Secondly, the trial court in considering the claim of privilege was alert to the importance of the ‘innocence at stake’ exception to any grant of privilege. It confirmed, expressly, that there was nothing in what it had reviewed that could or might assist the applicant in his defence and that, if there had been, then its response would have been different. The trial court was thus vigilant in exploring whether the non-disclosed material was relevant or likely to be relevant to the defence and was attentive to the requirements of fairness when weighing the public interest in concealment against the interest of the accused in disclosure (see, mutatis mutandi, Jasper v. the United Kingdom, cited above, § 57). The Court considers that if the applicant had any reason to doubt the trial judges’ assessment in this regard he could have requested the appeal court to review the material and to check the trial court’s conclusions. However, he chose not to do so.
Thirdly, in coming to its judgment the trial court stated, specifically, that it had expressly excluded from its consideration any information it had reviewed when it was weighing the Chief Superintendent’s evidence in the light of the proceedings as a whole. It further confirmed that it would not convict the applicant on the basis of PK’s evidence alone and that it required his evidence to be corroborated and supported by other evidence.
The Court further notes that, in advance of taking its intended procedural steps, the trial court informed the applicant and his co-accused of its intentions as regards its procedures and it afforded them an opportunity to make detailed submissions inter partes which they did (see, a contrario, Edwards and Lewis v. the United Kingdom).
89. In addition to the above measures taken by the trial court to safeguard the rights of the defence, the Court also considers that there existed other strong counterbalancing factors in the statutory provisions governing belief evidence.
90. In the first place, as noted above, providing belief evidence involves a complex intelligence gathering and analytical exercise. Section 3(2) (of the Offences Against the State Act, 1939) therefore requires that those doing so must be high-ranking police officers and, moreover, they are generally officers with significant experience of such organisations and in gathering and analysing relevant intelligence (paragraphs 51 and 53 above). In the present case, PK was the Head of the Special Detective Unit concerned with State security and monitoring subversive organisations and had such pertinent professional experience as to lead the SCC to state that it was difficult to envisage any other person in the State more relevantly informed …
91. In addition, the Chief Superintendent’s evidence is not admitted as an assertion of fact but as the belief or opinion of an expert. It is not, therefore, conclusive and, indeed, it has no special status it being one piece of admissible evidence to be considered by the trial court having regard to all the other admissible evidence …
92. The Court further notes that while the scope of cross-examination was restricted by the trial court’s ruling, the possibility to cross-examine the witness on his evidence was not entirely eliminated. The possibility to test the Chief Superintendent’s evidence in a range of ways still remained. Consequently, such evidence could be tested by the defence even if privilege had been granted as regards the sources upon which that opinion was based. As pointed out by the Supreme Court in DPP v. Kelly …, the principle is that any restriction on the right to cross-examine is limited to the extent ‘strictly necessary’ to achieve its (protective) objective. As noted by O’Donnell J in DPP v. Donnelly and Others …, the Chief Superintendent’s evidence can, therefore, be challenged on all matters collateral and accessory to the content of the privileged information. He could be cross-examined on the nature of his sources (documentary, civilian, police and amount); on his analytical approach and process; on whether he knew or personally dealt with any of the informants; and on his experience in gathering related intelligence, in dealing with informants as well as in rating and analysing informants and information obtained. His responses would allow the trial court to assess his demeanour and credibility and, in turn, the reliability of his evidence. This possibility of testing the witness distinguishes this case from those where the evidence of absent/anonymous witnesses is admitted …, and where the cross-examination of these witnesses is hindered or not possible at all.”
37. Thus, insofar as ECHR jurisprudence was engaged, the ECtHR judgment addressed the original question posed by the Court of Criminal Appeal. The jurisprudence of the Supreme Court, as enunciated in DPP v. Kelly  IESC 20, in relation to the belief evidence of a Chief Superintendent, was, therefore, “still applicable” (see the certificate of the Court of Criminal Appeal referred to earlier). I would point out that the question of ECHR compatibility, in this context, must be seen in the light of Murray C.J.’s observations in McD v. PL  IESC 81, to the effect that:
On this basis, it can be safely concluded that the question sought to be raised in the expanded grounds of 23rd January, 2009 were fully answered both by the judgment in DPP v. Donnelly & Ors.  IECCA 78, and in the ECtHR judgment in Donohoe v. Ireland (Application No.19165/08)  ECHR 1363 (12th December, 2013).
The Damache Issue in Context
41. Section 29(5A) of the Courts of Justice Act, 1924, as inserted by s.59 of the Criminal Justice Act, 2007, and as amended by s.31(a) of the Criminal Procedure Act, 2010 provides as follows:
42. Were the appellant to persuade this Court of the validity of his submission, it would effectively remove from consideration the “outside evidence” obtained on foot of the s.29 warrant. But, this makes the assumption that the circumstances of the trial would have been quite different. The evidence would have hinged very largely on the Chief Superintendent’s belief evidence. In effect, therefore, this Court is invited to act upon a hypothesis, an abstract proposition. This Court does not act in such a way, in s.29 applications, or otherwise.
43. Faced with this situation, counsel for the appellant in this appeal sought to distinguish his case from DPP v. Donnelly & Ors.  IECCA 78 and Donohoe v. Ireland (Application No.19165/08)  ECHR 1363 (12th December, 2013), by submitting that were the Chief Superintendent’s opinion evidence the ‘sole or decisive’ evidence in the prosecution, different considerations would apply, thus, giving rise to the scenario outlined in the ECtHR Doorson v. The Netherlands (Case 20524.92) (1996) 22 EHRR 330, and Al-Khawaja and Tahery v. The United Kingdom (Case 26766/05) (2011) 54 EHRR 23 jurisprudence. Counsel suggested that were he to succeed in excluding the fruits of the warrant and arrest the significant, “decisive”, evidence would then be the belief evidence. But in Donohoe v. Ireland (Application No.19165/08)  ECHR 1363 (12th December, 2013), the ECtHR attached great significance to the fact that the opinion evidence had not been the sole determinative factor, and, on that basis, analysed whether there were other adequate safeguards. Thus, counsel states that the Court should now disregard the extensive evidence. Thus, the appellant herein, faced with a situation where, the Donnelly judgment, and at least theoretically the Donohoe v. Ireland ECtHR judgment, might have had a bearing on the outcome of the s.29 appeal has, in effect, sought to ‘reconfigure’ the facts of the appeal at hand.
44. Section 29(1) of the 1924 Act provides that no appeal shall lie against an order of the Court of Criminal Appeal, except where certified. That court certified a s.29 question on a matter unrelated to the search, in circumstances where the focus in the appeal to the Court of Criminal Appeal was on a quite different issue. It is important to again recall the words of the Court of Criminal Appeal that the search warrant issue, there quite different in its characterisation, was “never really pursued”. Even accepting that a challenge to the warrant did constitute one of the grounds of appeal, the question nonetheless arises as to whether this challenge, or any determination thereon, in the words of s.29(5A), formed “part … of the decision of the Court of Criminal Appeal concerned”.
45. As s.29 reference arises only in the circumstances where what is in issue is a matter arising from a “decision” of the Court of Criminal Appeal. In briefly alluding in its judgment to the challenge to the validity of the search warrant, the Court of Criminal Appeal was not referring to a Damache point, which is now sought to be litigated. Rather, in the Special Criminal Court, counsel sought to challenge the validity of the warrant on the grounds that it had been issued for insufficient reason. Can it then be said that a Damache point was ‘part’ of the ‘decision’ of the Court of Criminal Appeal, such as would confer jurisdiction on this Court, pursuant to s.29(5A) of the 1924 Act, as amended? Because the point now canvassed was not argued, the point did not form part of the ‘decision’ of either the Special Criminal Court, or of the Court of Criminal Appeal. No application to argue such a point was made to the trial court or the appeal court. The application to argue the point comes only now, some eight years after the trial. It is made in circumstances where an earlier application to amend the s.29 certificate was made five years ago on different grounds. Those earlier grounds are now otiose. At no stage up to the present appeal hearing, did the appellant challenge the constitutionality of the warrant procedure. At the trial, and the appeal, the prosecution relied, in fact, on the statute then in force permitting the procedure (see A v. Governor of Arbour Hill Prison  I.R. 88). The appellant has served his sentence and was released five years ago. The effect of allowing the point to be argued now would be to create an abstract, hypothetical and false scenario, involving the fiction of deeming a point as having been argued and decided, which was not argued, still less decided, by the trial court, or the appeal court. It is true that s.29(5)(a) of the Court of Justice Act, 1924, as amended, makes clear that this Court may hear arguments, and may make a determination on any part of the decision of the Court of Appeal. That may include a point arising in the judgment which is not certified. But the point at issue here did not arise at all in the appeal judgment. The reference to the validity of the search warrant in the judgment of the Court of Criminal Appeal did not, even implicitly, include the Damache issue. In The People (A.G.) v. Patrick Higgins (Supreme Court, Unreported, 22nd November, 1985) (Finlay C.J., Walsh, Henchy, Griffin, McCarthy JJ.), Finlay C.J., speaking for the unanimous court, and having referred to The People v. Shaw  1 I.R. 1, pointed out that while the court is not confined to the point certified, nonetheless:
46. In summary, therefore, the point certified by the Court of Criminal Appeal has again been considered by that Court in Donnelly. The law in relation to ‘belief evidence’, as enunciated in DPP v. Kelly  IESC 20, is ‘still applicable’. The issue has again been considered by the ECtHR in Donohoe v. Ireland (Application No.19165/08)  ECHR 1363 (12th December, 2013). Insofar as an issue concerning Article 6 ECHR arises, that question, and the procedure engaged, has been found compliant with Article 6 ECHR. The appellant’s appeal to the Court of Criminal Appeal on the search warrant was confined to an alleged error on its face, that is, an absence of reasonable grounds. Even that distinct issue was never really pursued in the Court of Criminal Appeal. As a consequence, a Damache point cannot be properly before this Court, in accordance with s.29(5A), as it was never before the Court of Criminal Appeal. There is no other unaddressed and subsisting point. The appellant cannot seek, in this appeal, to rely on the judgment delivered by this Court in Damache, pronounced 6 years after his trial. In effect, the appellant is seeking to raise a point based on an abstract hypothesis, which this Court cannot entertain. On this basis, the appeal must, therefore, be dismissed.