Man loses appeal against conviction over IRA membership identified by bugging

Robert Day had argued that the identification of his voice from a bugging of what gardai believed was an IRA meeting had lacked any procedural safeguards.

The 50-year-old, of St Attracta Road, Cabra, in Dublin was jailed for five years in 2018, after being convicted of membership of an unlawful organisation within the State styling itself the Irish Republican Army, otherwise Oglaigh na hÉireann, otherwise the IRA on October 9th, 2015.

Presiding over the Special Criminal Court at the time, Justice Robert Eagar had said Mr Day was a member of the IRA in Dublin since the age of 18 or 19.

Justice Eager noted that in 2014, Mr Day was involved in an operation to buy €20,000 worth of forged €50 bank notes for €2,200 in legitimate money. Gardai had foiled the operation and he was convicted for possession of the forged notes.

In August 2015 members of the “Belfast Brigade”, concerned that a number of operations had been foiled by gardai, questioned Mr Day and others at a house in Castleknock to find out who was responsible. Gardai used bugging devices to listen to the conversations. Mr Day’s voice was identified on the recording at a time when CCTV showed that he was inside the house.

The prosecution had also relied on belief evidence given by a chief superintendent who said that he was a member on the day in question. He had also refused to answer certain questions put to him by gardai relating to what he was doing in the house in Castleknock.

Gardai from the National Surveillance Unit deployed the listening devices using the Criminal Justice Surveillance Act 2009. Members of the unit refused to reveal the nature of the devices used or how they were deployed, claiming privilege over that information. They said that if subversive organisations find out how law enforcement spies on them, it would put future similar operations in jeopardy and could put lives in danger both in Ireland and abroad.

The garda claim of privilege was upheld by the judges of the Special Criminal Court.

However, Mr Day appealed his conviction to the Court of Appeal yesterday (Tuesday)

His barrister, James Dwyer SC, argued that there had been a complete absence of any procedural safeguards with respect to the identification evidence.

“The criticism we have in this case is that the court permitted voice identification evidence from an investigating member to be given,” he said.

He was referring to a detective sergeant, who had known Mr Day for several years, had been involved in the forged banknotes investigation and who had known that Mr Day had been seen going into the house.

“It opens the door for unsafe convictions,” he said. “The obvious issue here is whether a fair trial occurred.”

However, he did not make the case that the detective sergeant had been wrong in his identification of Mr Day.

Court of Appeal president Justice George Birmingham, sitting with Justice McCarthy and Justice Ni Raifeartaigh, said: “The court is satisfied that in the present case there was no procedural unfairness.”

He said that the Special Criminal Court had been correct to receive the evidence of the detective sergeant and that it had not been unsafe to convict.

The judges dismissed the appeal.

However, the court changed the date to which the court had backdated Mr Day’s sentence, to take account of a number of weeks that he had spent on remand. He will now be released in January 2022, rather than in February.