Admissibility of Garda Chief Superintendent’s belief of man’s IRA membership as evidence held constitutional
A man has failed in his attempt to have section 3(2) of the Offences Against the State (Amendment) Act 1972 declared unconstitutional.
The provision allows as evidence the belief of a Chief Superintendent of An Garda Síochána that a person accused of the criminal offence of membership of the Irish Republican Army is a member of that organisation.
The appellant, Thomas Redmond, who had been convicted for his membership in the IRA, sought to argue that s.3(2) violated his right to a fair trial as set out in article 38 of the Constitution.
Delivering the Supreme Court’s judgment, Mr Justice Charleton first noted that s.3(2) had been unsuccessfully challenged on a number of previous occasions, including in the cases of O’Leary v. Attorney General 1 I.R. 102, D.P.P. v. Martin Kelly 3 I.R. 115,D.P.P. v. Binéad and Donohue 1 I.R. 374, and Redmond v. Ireland 2 I.L.R.M. 419.
The Supreme Court noted that Mr Redmond had never challenged the truth of the Chief Superintendent’s belief, sought access to the evidence that supported his belief, or gave evidence during his original trial.
It was also noted that Mr Redmond’s original trial had largely focused on forensic evidence which linked Mr Redmond to weapons.
His conviction had also relied upon the Chief Superintendent’s belied, with the Special Criminal Court finding that while accepting as the sole evidence in the case the belief of a Chief Superintendent was not unfair, the Court should make a careful assessment of the credibility of the belief.
Further, the forensic evidence linking Mr Redmond to weapons “bears out Chief Superintendent Murphy’s opinion”.
During the High Court appeal, in which Mr Redmond first challenged the constitutionality of s.3(2), it was argued for Mr Redmond that in cases where the Chief Superintendent asserts the privilege of the informer, the accused is put at a particular disadvantage, as the Chief could be taken in by bogus information, but still appear credible. As the informer would never give evidence themselves, an accused could be convicted on evidence that the Court did not have the chance to confront.
The Court noted that the defence could seek discovery of supporting material, and that the privilege could not stand if anything in the material gave rise to a reasonable doubt as to the guilt of the accused. Further, the defence are able to ask the Court to examine the material themselves.
However, Mr Redmond argued that without confrontation with the informant to assess the reliability of his information, a trial would be fundamentally unfair and contrary to article 38.1 of the Constitution. While the use of a special advocate might improve the situation, it was submitted that it would not save s.3(2) from being unconstitutional.
Before the High Court, and in the present proceedings before the Supreme Court, consideration was given to the ostensible necessity of the subsection, as a result of the IRA’s treatment of informers, its violent aims and methods, the difficulties associated with infiltrating its different cells, and the benefits which the subsection had subsequently brought to the successful prosecution of members.
The High Court judgment concluded that the subsection was constitutional, because while it made a belief admissible, it did not mean that courts had to accept the belief or convict on it. Rather, it would be assessed in light of the credibility of the belief and the evidence as a whole.
The Supreme Court gave further consideration to the legislative and constitutional context of s.3(2), noting that the Constitution guarantees rights of association which can only be violated when the organisation constitutes “an attack on the public order of the State”.
The Constitution further provides that a united Ireland shall be brought about only be peaceful means with the consent of the majority.
The Court noted that in the history of Ireland as a State, the IRA was the only organisation declared to be unlawful under s.19 of theOffences against the State Act 1939, with membership in that organisation therefore outlawed by s.21 of the same Act.
However, the Constitution also guarantees certain fair trial rights, with the Court finding that when “the admission of particular categories of evidence takes a criminal trial out of the core guarantees of the rights of a person accused of crime and presumed to be innocent, legislation enabling that step cannot conform” to the Constitution.
The Court then noted that the admissibility of belief was only ever appropriate in the specific circumstances of the Special Criminal Courts established to hear cases related to membership in the IRA.
The Court found that this was rightly so, and reflected the unique challenges associated with prosecuting members of the IRA, as the evidence before the High Court “establishes that were any person to leave the self-styled IRA and turn State’s evidence against his or her comrades, the result would probably be murder”.
Thus, any endorsement of the constitutionality of s.3(2) could not be taken as precedent for the use of belief as evidence in other contexts.
The Court then considered the safeguards that applied in such cases. It observed that the use of secret evidence did not necessarily render a trial unfair. The defence are able to request that the prosecution and judges examine the evidence, with a view to determining whether it contained evidence relevant to the innocence of the accused.
Furthermore, while the legislation did not require corroboration, it was noted that a practice had developed of not convicting on the basis of belief evidence alone.
The credibility of the Chief Superintendent could also be challenged through cross-examination, as could the relevant expertise and experience of that Chief Superintendent. Mr Redmond’s assertion that there was a presumption that the Chief Superintendent was truthful and reliable was found to be incorrect.
The Court found that the decision in The People (DPP) v Kelly 3 IR 115 made clear that there is no special status on such evidence. Such belief evidence is merely admissible evidence. As such, it may be rejected, contradicted or challenged in the ordinary way.
Highlighting the exceptionality of the provision, the Court noted: “The impugned subsection applies only: before the Special Criminal Court; where a written ruling is given explaining the reasons for relying on such evidence; on an offence of membership of an unlawful organisation; where the Government has made a proclamation that the ordinary courts are inadequate to secure the effective administration of justice; where the accused may in the ordinary way give evidence; where privilege may be claimed as to sources which are confidential, as in any other case, but which privilege is subject to review by the court of trial; where the nature of the offence charged is continuing, allowing a belief to build up over time; where that belief may be challenged; and may be the subject of rebutting evidence by the accused.” It was within this context that the subsection should be examined.
Concluding, the Supreme Court found that the subsection complies with article 38 of the Constitution where such belief evidence is supported by other evidence from the totality of which evidence the court of trial may be satisfied of the guilt of the accused beyond reasonable doubt.