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Cite as: [2010] ECHR 2215

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THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41130/06
by Martin KELLY
against Ireland

The European Court of Human Rights (Third Section), sitting on 14 December 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 3 October 2006,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Martin Kelly, is an Irish national who was born in 1956 and lives in Dublin. He was represented before the Court by Mr Michael Finucane, a lawyer practising in Dublin. The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The circumstances of the case

1. Background facts

2. The following are the main allegations which led to the applicant’s prosecution (drawn from the later Court of Criminal Appeal judgment).

The applicant and a co-accused, WC, were charged with membership of an unlawful organisation styling itself the Irish Republican Army (“IRA”) contrary to section 21 of the Offences Against the State Act, 1939 as amended. It was alleged that DM, in association with four others, planned to open a lap dancing club in Dublin (“the Club”) and engaged a company to provide security. The Club was due to open on 27 May 2002. On that day one of the principals in the security company requested a meeting with DM at lunch time. The meeting was attended by DM, GC (one of the partners in the Club), PB, the applicant and his co-accused. In the course of this meeting, the applicant introduced his co-accused as “the top man”, meaning the top man in the IRA. It was alleged that WC said that certain people in Dublin did not want the club to open but that they would make sure it would open if a donation was given to the Continuity IRA (“CIRA”) and, that if a donation was not made, the dancers and DM’s girlfriend would be hurt and the premises would be petrol bombed. Initially, a payment of €50,000.00 (EUR) was sought, but after some discussion this was reduced to €25,000.00. The €25,000.00 was ultimately paid in instalments.

3. On 29 July 2002 the applicant and WC were arrested, questioned and charged with the offence of membership of an illegal organisation (the IRA) pursuant to section 21 of the Offences Against the State Act 1939, as amended (“the 1939 Act”). During police questioning (under section 2 of the Offences Against the State (Amendment) Act 1998, “the 1998 Act”) the applicant denied membership of an unlawful organisation.

2. The Special Criminal Court (“SCC”)

4. The applicant and WC (“co-accused”) were tried before the SCC in November 2003 over 9 days. On the 5^th day of the trial, the applicant’s co-accused pleaded guilty. The trial proceeded and the SCC had regard only to evidence insofar as it concerned the applicant. In all, the SCC heard 13 witnesses, nine of whom testified on behalf of the prosecution and 4, including the applicant, for the defence.

5. The SCC delivered its judgment on 19 November 2003. The judgment gave a detailed account of the relevant evidence of every witness followed by an assessment of the credibility of each.

6. The principal witness for the prosecution was DM. He gave evidence as to a meeting that took place on the 22^nd May 2002, the day upon which the club was due to open. He identified the two accused (WC and the applicant) as being present at that meeting. He testified as to the threats made by WC in the event of a required contribution of €50,000.00 not being made to the Continuity IRA. When he had replied that he did not have that amount negotiations took place and the amount was reduced to €25,000.00. The dates upon which the instalments were to be paid were then agreed. He paid the first two instalments to the applicant’s co-accused and on the 31^st May 2002 he had met with both men and had handed over a further instalment of €5,000.00 to the applicant. The witness was cross-examined by counsel for the applicant. He confirmed that the applicant and his co-accused made themselves known to him to be Continuity IRA. He did not report the matter to the Garda Síochána (police) straightaway because he was afraid of his life. His first contact with the police came when he received a telephone call from a sergeant whose identity he had to check out in order to ascertain that he really was a member of the police force. He said that he was “in the Witness Protection Programme having received threats to his life and having been told that “they” would stick a hammer into his head in messages left on his phone from [the applicant].”

The SCC found him to be a truthful witness:

“Vigorous efforts were made to discredit this witness by putting to him that he had a record of cocaine abuse, drunkenness, lying, theft and involvement in fraudulent conversion. He gave his evidence in a forthright manner both in examination and cross-examination. Throughout his evidence it was apparent to the Court from his demeanour that he was in fear.

...

The Court is satisfied that he was indeed in fear of both the accused and of the Continuity IRA. It is for this reason he accepted entry into the Witness Protection Programme and removed himself from Dublin and pending the trial for approximately one year remained in isolation. The Court is satisfied that he is a truthful witness.”

7. The trial court also heard evidence from PB and GC. An application was made by the prosecution to treat PB as a hostile witness, which was initially refused but subsequently granted. As to the evidence of PB, the Court held:

“The witness throughout his evidence was hesitant and there was frequently a very long pause between a question posed by [Counsel for the prosecution] and the answer. At a later stage in his evidence he was clearly terrified and the impression of the Court was that he was anxious that he should give no answer that could implicate [the applicant] or the IRA in the events described by [DM] and in the final stage of his evidence that while implicating the IRA he was anxious that he should not implicate [the applicant]. The stress which he was under was apparent.”

GC gave evidence that he was present at the meeting in May 2002 which was held because it had been brought to his attention by DM that there was a potential threat to the staff and business. It was the first occasion he had met the applicant and the co-accused who had been introduced as being another security company who would be able to provide extra security at a cost, initially, of €15,000.00 but subsequently €25,000.00. He took control of the last five payments. He found DM to be dishonest but gave no instances of this. The applicant had never threatened him. He had never been in fear of the applicant. Upon cross-examination he denied having extensive contact with the applicant since the trial started. The SCC held:

“The witness was not convincing in his evidence. ... The Court regards his account of the manner in which the sum sought by [the applicant] and [WC] was negotiated upwards of €15,000 to €25,000 so unlikely as to be incredible.... He offered no plausible explanation as to why any money should be paid to [the applicant] and [WC] for extra security in the circumstance where there was not evidence of any discussion as to the nature of that extra security if any and when it was his wish that they should not attend at the premises his agreement to pay this sum when he did not believe [DM]’s reportage of threats is not credible.

...

In his evidence he created an impression of being evasive .... The impression left upon the Court by the witness’s manner of giving his evidence is that he is an untrustworthy witness.”

8. A police Chief Superintendent gave evidence in accordance with section 3(2) of the Offences Against the State (Amendment) Act 1972, as amended (“the 1972 Act”) of his belief that the applicant had been a member of the IRA on the relevant date. He had served 32 years in the police (of which 25 years were in “the fight against subversion”) and he was, at that time, in charge of the Special Detective Unit involved in receiving and analysing sensitive information and intelligence relating to subversion. He gave evidence that he believed that the applicant was a member of the IRA on the date of his arrest. He also stated that he believed that the applicant had been a member of the IRA for six months prior to that date and that he had been associated with the IRA for months before being sworn in as a member. He stated that he based his belief on matters other than those that related to the applicant’s arrest. The Chief Superintendent was cross-examined as to the source of his belief but he pleaded privilege on the basis that the disclosure of his sources would endanger life and would endanger the ongoing police operations against the IRA.

9. The applicant argued that the SCC should refuse the claim of privilege since, in order to have a fair trial, the accused must be told the identities of the informants that went to make up the belief of the Chief Superintendent. In the course of its ruling on this application the SCC reviewed the legal authorities on ‘informer privilege’ and the ‘innocence at stake’ exception thereto. It cited, in particular, the case of The Director of Public Prosecutions and the Special Criminal Court [1999] 1 IR 60 where O’Flaherty J had said:

“In effecting the balance between the interest of the public in determining and detecting crime and the interest of an accused person, one important consideration which is relevant to this case is that the Court will have regard to a risk of serious harm or death to persons whose identity is disclosed.”

The SCC was satisfied that 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 evidence given to this Court . . . is that threats have been made and the effect of those threats upon the witnesses concerned, namely [DM] and [PB], has been apparent to the Court, not just in the oral evidence which they gave, but in their demeanour while giving evidence and which demeanour made it clear that they, themselves, were in serious harm. [DM] repeated on a number of occasions that he is in fear of his life and the consequence of threats to date made upon him. In these circumstances, the Court is satisfied in weighing the respective interests of the public and the accused that it must give preference to that of the public in having crime deterred and detected.”

In making its ruling the SCC noted that it was for the trial court to attach to the statement of belief, as is the case with all other evidence, such weight as it considers appropriate in all the circumstances. The Chief Superintendent’s claim of privilege was therefore upheld.

10. A Detective Chief Superintendent was called in relation to a detention matter which, it transpired, was not in issue. Two detective sergeants gave evidence about their interviews with the applicant in July 2002, during which the applicant was questioned about joining the organisation at a house in Dublin and about his associations with WC. The applicant denied being a member of the IRA. One of the Sergeants gave evidence as to the identification parade.

11. The final prosecution witness applied pursuant to Rule 7(4) of The Offences Against the State Acts 1939-1972 Special Criminal Court Rules 1975 S. I. No. 234 of 1975 to be permitted to give her name and address in writing to the court. She handed in a letter to the court in which she had expressed concern for her own safety. The Court deferred dealing with the application until the conclusion of her evidence. She gave evidence as to how she had assisted DM both financially and through her interior design skills with his project and of how she had been employed in a managerial capacity in the club. She met the applicant and his co-accused some weeks after the club had opened. At the conclusion of her evidence the court ordered that her name and address should not be disclosed in court. In assessing her credibility, the SCC found that she had given her evidence in a forthright manner and was satisfied that she was a truthful witness.

12. The defence called four witnesses. The applicant pleaded not guilty. He testified that he had left school at the age of 15 and that he had been in the Irish Army for 26 years. Prior to his retirement, he became involved in the provision of security services as part of his return to civilian life. It was in this context that he had come to know his co-accused and DM. He accepted that the meeting of May 2002 took place. When asked why he brought WC to that meeting he replied that he had been in his house at the time and that when told by the applicant that he had to go into town to meet some people, he (WC) said that “he would tag along”. He said that the meeting concerned the provision of bona fide security services and that there was no question of the involvement of the IRA. He denied that he knew that his co-accused was a member of the IRA, although he knew that he had been a member of another illegal organisation (the Irish National Liberation Army).

13. In relation to the applicant, the SCC held:

“The witness gave his evidence in a straight forward and vigorous manner. There are inconsistencies within the same. He was reticent about his knowledge of and prior relationship with [a person] and likewise his relationship with [WC] outside the circumstances mentioned in the evidence of prosecution witnesses. His account of the arrangement for payment for the additional security at the [Club] lacks credibility. .... The witness’s evidence as a whole makes clear that his answers at interview to Detective Sergeant ... quoted in this judgment were untrue and misleading. The Court is satisfied that it should approach his evidence with caution.

...

The court finds his account of the circumstances in which [WC] came to be present at the meeting in Dorans ... improbable to the extent that it is unbelievable. It is not credible that [WC] was present in his house on one of his regular social calls on the 27^th May 2002 when the phone call from [PB] was received and that [WC] simply tagged along to the meeting as if he had nothing better to do but that he then took control of the meeting and took part in the separate private meeting to the exclusion of [the applicant] and there negotiated the agreement for the payment of €25,000.00. Further his account of the arrangement for payment for the additional level of security lacks credibility .... Further he was reticent about his previous relationship with [WC] in connection with meetings in Tallaght and Limerick. ... Having regard to these matters where there is a conflict between the evidence of [the applicant] and that of [DM] or [PB] the evidence of [DM] and [PB] is to be preferred.

14. DL, a former employer of DM, was also called by the defence. He gave evidence of a report he had received from his security firm that DM had been taking alcohol and stealing at work. The court noted that this evidence was hearsay and that no weight whatsoever should be attributed to it. His evidence of having employed and dismissed DM was accepted. It was noted that the alleged reasons for that dismissal had been denied by DM in evidence.

15. The applicant’s brother and an officer from the Irish Defence Force were also called. The former had introduced the co-accused to the applicant and the latter had been the applicant’s former commanding officer for ten years. He testified that for most of that period the applicant’s conduct rating was excellent. He confirmed the discussion between himself and the applicant as to the advisability of retirement in the light of allegations that he was a member of the IRA.

16. The SCC considered and assessed the evidence adduced at the trial. It accepted in its judgment the evidence of the Chief Superintendent as to his belief that the applicant was a member of the IRA. It took into account when assessing the weight to be attributed to that evidence that privilege had been granted in respect of the information grounding his belief. It found, however, that the statement of ‘belief’ was supported by additional corroborative evidence.

17. This additional evidence included evidence admissible under section 3(1) of the 1972 Act of the applicant’s association with his co-accused who had pleaded guilty to membership of an unlawful organisation. In particular, the SCC considered that the evidence demonstrated that it was the applicant who had arranged the meeting on 27May 2002 at which he had introduced his co-accused as a “top man” in the IRA (evidence of PB); that sums of money had been demanded for the CIRA from DM under threats of violence; that his co-accused pretended to have an accent from Northern Ireland, the applicant knew he did not have such an accent and his failure to comment on this during the meeting was evidence that they acted in concert in order to reinforce and confirm the IRA connection of the applicant and his co-accused; that the applicant was involved in negotiations for the payment of €25,000 in instalments; that €5,000 was paid directly to the applicant (evidence of DM); and that the applicant had attended a separate meeting in a house in Dublin where another person was introduced by the co-accused as “top man in Limerick” meaning the top man in the IRA (evidence of PB).

18. In addition, the SCC found that the applicant’s answers to police questions in interview, which were material to the investigation of the offence, were untrue and misleading. The false or misleading nature of those responses was “quite clear” from the evidence of the applicant himself as well as of other witnesses. Those responses were designed to give the impression of distance between himself, on the one hand, and his co-accused, the meeting on 27 May 2002 and the Club, on the other. In so distancing himself during a police interview about membership of an unlawful organisation, he inferred that those activities were connected to the organisation.

19. Moreover, the trial court found that the applicant’s evidence concerning how his co-accused had ‘tagged along’ to the meeting in May 2002 and had then taken it over was simply not credible. His account of the arrangement for payment of the additional level of security also lacked credibility. His disposition not to tell the truth had to be borne in mind in evaluating his evidence. Having regard to all of the above, where there was a conflict of evidence between the applicant and that of DM/PB, the latter was to be preferred.

20. On the entirety of the evidence adduced, the SCC was satisfied beyond reasonable doubt that the applicant was guilty of the offence with which he was charged. He was found guilty and sentenced to 4 years’ imprisonment.

3. Appeal to the Court of Criminal Appeal (“CCA”)

21. The applicant appealed to the CCA and argued that his right to a fair trial (under Article 38 of the Constitution and Article 6 of the Convention) had been breached by the refusal to disclose the source of the Chief Superintendent’s belief. He argued that a fair trial requires some investigation as to whether it is reasonable to protect a claim of privilege in any particular case. His appeal was dismissed by judgment of 29 April 2005, although the appeal court reduced the sentence to 3 years’ imprisonment.

22. In dismissing the appeal, the CCA found that in the course of a lengthy judgment the SCC had indicated that it had laid very great emphasis on the demeanour of the witnesses in the witness box and on the manner in which they had given their evidence. The case involved striking conflicts of evidence which could not be explained simply by errors of memory or lapse of time so that, clearly, false and perjured evidence had been given by some witnesses. The CCA was impressed by the care with which the SCC had assessed the credibility of the various witnesses and the clear way in which it had expressed its findings. The CCA had “no doubt that there was credible evidence upon which such findings could be made” and it did not therefore interfere with the findings of fact of the SCC.

23. The CCA noted that the Chief Superintendent had given evidence of his belief that the applicant was a member of the IRA at the relevant date and that under cross-examination he had claimed privilege against disclosure. It also noted that the problem related to information in his possession which quite possibly was not documented at all. Thus, the simple solution of allowing the trial court to see the disputed documentation could not really be adapted to the circumstances of the present case.

24. There was no doubt that there was a long established principle that, in certain circumstances, the police were entitled to refuse to disclose sources of information. There was undoubtedly a serious public interest in ensuring that persons who might be subject to intimidation and threats, if not actually in danger of their life, should be protected to ensure that information in their possession would be given to the police to assist in the prosecution of wrongdoers. As against this, there was also the constitutional obligation to ensure that an accused had a fair trial. The CCA considered that the balancing of those conflicting rights and interests could only be determined by the trial court. It had to be remembered that that the purpose of section 3(2) of the 1972 Act was simply to make the statement of belief of the Chief Superintendent admissible as evidence and that, while it may be persuasive, it is not conclusive. The trial court must consider that evidence in the light of all their surrounding circumstances and, in particular, in the light of the other evidence in the case.

25. In the present case, the trial court could certainly take into account the fact that the Chief Superintendent refused to identify the basis of his belief, as well as the fact that the applicant appeared to have made a false statement to the police and the evidence of the other witnesses. Having decided that it accepted the evidence of DM, the SCC was entitled to treat this evidence as corroboration of the belief of the Chief Superintendent. As claims of privilege of this nature were a matter for the trial court, the applicant’s argument that he did not receive a fair trial was rejected. The CCA left open the question of whether it could interfere in a case where there was no other evidence corroborating the belief of the Chief Superintendent.

4. The Supreme Court (section 29 of the Courts of Justice Act 1924)

26. An appeal was taken to the Supreme Court on a point of law pursuant to a certificate of the CCA. The Supreme Court considered whether the limitations placed on the applicant’s cross-examination of the Superintendent as to the source of his belief rendered his trial unfair.

27. On 4 April 2006 the Supreme Court unanimously dismissed the appeal. Geoghegan J. gave the judgment of the Court (with which Murray C.J. as well as Denham and Kearns JJ concurred). Fennelly J. delivered a separate judgment.

(a) Judge Geoghegan

28. Geoghegan J. considered it essential to consider the purpose of section 3(2) of the 1972 Act. The legislation was passed in the context of preserving the security of the State and was introduced to allow reliable information about membership of an unlawful organisation from a senior police officer to be admitted into evidence given the difficulty in getting direct evidence from lay witnesses who would not come forward for fear of reprisal. As with all anti-terrorist offences, there would also be equal apprehension about intimidation of witnesses. It was reasonable to infer that the relevant provision was enacted out of bitter experience. A limitation on cross-examination was permitted by the statutory provision. However, informer privilege, even without the statutory provision, may involve more than merely refusing to divulge the name of an informer. The correct interpretation of section 3(2) was that it allowed cross-examination about the basis of the belief evidence but not to the extent that it interfered with or defeated a legitimate plea of privilege.

29. He noted that the trial and appeal courts had fully considered the weight to be given in a trial to the belief evidence. He considered that the SCC had the right methodology and, in any event, that there was substantial evidence implicating the applicant independently of the belief evidence.

30. He went on to note that it had been the practice of the SCC not to convict on the basis of belief evidence only and commended the court on that practice. He also commended the practice of the DPP not to initiate prosecutions based solely on belief evidence. These self-imposed restrictions of the SCC and the DPP aimed at ensuring a fair trial. However, in the present case, there was plenty of outside evidence and it was well within the discretion of the SCC to convict the applicant for the reasons given by the CCA.

31. Geoghegan J went on to review domestic case law on the relevant provision and agreed that the balancing of the conflicting rights and interests was to be determined by the trial court. The Chief Superintendent’s belief had no special status but was merely a piece of admissible evidence (as stated by the CCA in DPP v. Redmond, judgment 24 February 2004). Although the trial 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 had made a false statement to the police and to have regard to the corroborating evidence of other witnesses, particularly that of Mr. DM which it accepted.

(b) Judge Fennelly

32. Fennelly J. noted that the prosecution evidence was not limited to the belief evidence of the Chief Superintendent. The SCC had before it and had accepted the evidence of DM, whom it had regarded as a truthful witness and in respect of whom it was satisfied that “throughout his evidence it was apparent to the court from his demeanour that he was in fear” both of the applicant and of the CIRA. While there was a conflict concerning amounts, there was also evidence that €5,000 was paid to the co-accused and another €5,000 to the applicant. In addition, the SCC had before it the evidence of PB whom it also accepted as being in fear. Though treated as a hostile witness, he nevertheless gave evidence that the applicant described his co-accused as a “top man” using that expression in relation to the IRA. It was unnecessary to refer to this evidence in any greater detail as it was clear that there was significant evidence before the SCC, which was accepted by that court, of the involvement of the applicant with an unlawful organisation. The SCC had concluded by stating that on “the entire of the evidence adduced before the Court” it was satisfied beyond reasonable doubt that the applicant had been guilty of the offence with which he was charged.

33. The particularity of the present case was whether the fact that an accused person, who was prepared to give evidence denying membership of an unlawful organisation and was denied the right to cross-examine the Chief Superintendent as to the sources of his belief, had had a fair trial.

34. Fennelly J. recalled the nature of an unlawful organisation as defined by section 18 of the 1939 Act and considered it obvious both from that definition and from common sense that such organisations are, in their nature, secret and violent. It followed that it would be extremely difficult to produce direct evidence capable of sustaining a prosecution. Intimidation of possible witnesses, and worse, was to be presumed. Where the police have secret intelligence, they would be unable to produce informants as witnesses without compromising them. Hence the need for an unusual type of evidence permitted under section 3(2) of the 1972 Act. Parliament had chosen to designate a person holding the rank of Chief Superintendent as a witness whose belief might be accepted as evidence. Whether or not an accused person was a member of an unlawful organisation was a question of fact and the Chief Superintendent gave evidence, not of fact, but of belief. The Chief Superintendent simply states his belief.

35. Fennelly J. noted that the prosecution had submitted that it was no longer the practice of the DPP to prosecute on the basis of belief evidence alone. Having reviewed domestic case law on section 3(2) he noted that the specific circumstances of the present case (where the accused wishes to mount a full defence) had not previously been the subject of a ruling by the CCA.

36. The Chief Superintendent merely stated that he was of the belief that the accused was a member of an unlawful organisation. That type of evidence was, in itself, a novelty. Under the normal rules of evidence, only expert witnesses were permitted to give evidence of their belief and, even then, not on simple questions of fact. The Chief Superintendent could, no doubt, be regarded as an expert in his field. That, however, was not the real problem. The real problem was that, where privilege was claimed, as it inevitably was, the defendant did not know the basis of that belief.

37. This did not mean, in Fennelly J.’s view, that courts should generally or at all disallow claims of privilege. The evidence of the Chief Superintendent before the SCC was perfectly plausible, indeed compelling. The CCA was right in expressing the views it did and the SCC was entitled to accept such evidence. It was 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.

38. The courts had developed over recent years extensive rules and principles requiring the prosecution to preserve and disclose to the defence in advance of trial any materials in its possession which might give rise to a reasonable possibility of securing evidence relevant to guilt or innocence. It was implicit in this case law that the prosecution had to disclose to the defence any material of possible relevance to guilt or innocence. In several of these cases, the DPP was prohibited from continuing with prosecutions when a real risk of an unfair trial flowed from non-compliance with these principles.

39. The present applicant, however, made 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 the Chief Superintendent and, by extension, any of his informants who might be identified if he revealed his sources. Fennelly J. reviewed case-law of the Irish, US and UK courts on the right to cross-examination. He also reviewed the case law of this Court (notably Kostovski v. the Netherlands, 20 November 1989, Series A no. 166; Doorson v. the Netherlands, 26 March 1996, Reports of Judgments and Decisions 1996 II; Van Mechelen and Others v. the Netherlands, 23 April 1997, Reports 1997 III; and Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000 II). He concluded that authorities cited from all relevant jurisdictions demonstrated that there was an inescapable obligation on the courts to guarantee the overall fairness of a trial and he believed that, in Ireland, the right to cross-examine one’s accusers was an essential element in a fair trial. While restrictions could be imposed in the interests of overall balance and the efficiency of the criminal justice system, derogations, for overriding reasons of public interests, from normal procedural rights of the defence were not to go beyond what was strictly necessary and should not “imperil the overall fairness of the trial”.

40. The essential question was 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, had been unduly restricted so as to render his trial unfair. Fennelly J. believed that the 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 and, to that extent, had constituted a restriction on the effectiveness of his right to cross-examine his true accusers and it had, for that reason, the potential for unfairness.

41. On the other hand, Counsel for the DPP had pointed to a number of compelling circumstances to justify the course of action adopted. In the first place, resort to belief evidence applied only in the case of organisations which, by their nature, represented 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 made it possible to justify some restriction on direct access on behalf of the accused to the identity of his accusers. Secondly, the legislature allowed such evidence to be given by police officers of particularly high rank who could be presumed to have been chosen for having high standards of integrity. Thirdly, the procedure applied only while there was in force a declaration that “the ordinary courts are inadequate to secure the effective administration of justice....” The offence was a scheduled one: thus the cases would be heard by the SCC, a court composed of judges who had to be presumed to apply only the highest standards of fairness. The section also enjoyed a presumption of constitutionality. Any restriction on the right to cross-examine, which it implied, had therefore be limited to the extent that was strictly necessary to achieve its clear objectives.

42. As to its application in the present case, it was of crucial importance that there was quite extensive evidence, other than the evidence of the Chief Superintendent, which convinced the SCC that the applicant was a member of the IRA on the relevant date. While the SCC said that it had taken into account the fact that the Chief Superintendent had claimed privilege, Fennelly J. noted that the SCC should have explained the weight, if any, which it attached to the evidence of the Chief Superintendent given the grant of privilege. However, in the particular circumstances of this trial, Fennelly J. did not think there was any overall unfairness. He did 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 and he did not see how else the identity and safety of those other witnesses could have been protected. Thus it was, in the literal sense, necessary to prevent the defence from learning who they were. This, in turn, made it inevitable that the right to cross-examine would have to be restricted.

43. The matter, he said, might be quite different in a case where the evidence of the Chief Superintendent was the sole plank in the prosecution’s case. However, the Supreme Court was not called upon to decide this issue and, in the particular circumstances of this case, he found that there was no unfairness in the trial of the applicant.

5. Subsequent events.

44. The applicant was released from prison on 19 January 2006.

B. Relevant domestic law

1. Article 38 of the Constitution

45. Article 38 reads, in so far as relevant, as follows:

“1. No person shall be tried on any criminal charge save in due course of law. ...

3(1) Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

(2) The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law. ...”

2. The Offences Against the State Act 1939 (“the 1939 Act”)

46. The Court refers to the description of the matters leading to the adoption of the 1939 Act in its judgment in Lawless v. Ireland (no. 3), 1 July 1961, §§ 1-7, Series A no. 3.

47. The 1939 Act allowed for the establishment of the SCC (section 38) to try offences which were not amenable to trial in normal domestic courts. The SCC is a non-jury court and sitting judges (normally three, drawn from the District, Circuit and High Court) hear the evidence and make findings of fact.

48. Section 36 of the 1939 Act allows for certain offences to be “scheduled” which offences are then to be tried before a SCC. Secondary legislation in 1972 defined those scheduled offences (Offences against the State (Scheduled Offences) Order 1972 S.I. No. 142 of 1972).

49. Section 21(1) of the 1939 Act provides that “it shall not be lawful for any person to be a member of an unlawful organisation”. The IRA was declared unlawful by a suppression order made under section 19 of the 1939 Act (Unlawful Organisation (Suppression) Order 1939). Accordingly, the SCC tries, inter alia, charges of membership of unlawful organisations.

3. Section 3 of the Offences Against the State (Amendment) Act 1972, as amended by section 4 of the Offences Against the State (Amendment) Act 1998

(a) Section 3 of the 1972 Act

50. This section, as amended, is headed “Evidence of membership of unlawful organisation” and reads as follows:

“3(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) In 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 [a police officer], 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.”

COMPLAINTS

51. The applicant complained under Articles 6 and 13 of the Convention about the admission of, and reliance upon, the evidence of the Chief Superintendent against him pursuant to section 3(2) of the 1972 Act.

THE LAW

A. Article 6 of the Convention

52. The applicant complained about the use made during his trial of the evidence of the Chief Superintendent pursuant to section 3(2) of the 1972 Act under Article 6 of the Convention.

53. He submitted that the SCC denied him any meaningful opportunity to challenge that belief evidence through cross-examination. The trial court did not conduct any investigation of its own to discern the nature and content of the privileged information or how that information affected the applicant’s case. In effect, the prosecution itself decided how important the information was to the defence, how much (if any) would be disclosed and adjudicated the public interest factors influencing the decision to disclose or suppress. The SCC did not give any indication in its judgment of the weight placed on this evidence when coming to a decision to convict the applicant nor was it explained how the evidence was considered and what regard was paid to the limitation on the rights of the applicant to challenge the evidence in the course of the decision-making process.

54. Article 6 § 1, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

55. The Court notes that the impugned evidence of the Chief Superintendent, his belief that the applicant was a member of the IRA, was admissible evidence pursuant to section 3(2) of the 1972 Act and that that evidence was accepted by the trial court.

The Chief Superintendent was granted privilege and thus could not be cross-examined on the information on which he based his belief or on the sources of that information, in order to protect the lives of informants as well as the integrity of ongoing police operations.

1. General principles

56. The Court recalls that it must consider the fairness of criminal proceedings as a whole including the decision of the appellate courts. Moreover, it is not within its province to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33; Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247 B; and Doorson v. the Netherlands, cited above). Furthermore, where national legislation is in issue in cases arising from individual petitions, the Court’s task is not to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it (see, among many other authorities, N.C. v. Italy [GC], no. 24952/02, § 56, ECHR 2002 X, cited in Taxquet v. Belgium [GC], no. 926/05, § 83, 16 November 2010).

57. The principles applicable to the duty to disclose evidence in criminal proceedings to the defence were set out by the Grand Chamber in the above-cited case of Rowe and Davis v. the United Kingdom (at §§ 60-62):

“60. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party ... In addition Article 6 § 1 requires ... that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused ...

61. However, ... the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused ... In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1 ... Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities ...

62. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them ... Instead, the European Court’s task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused.”

58. The Court has also examined the compatibility with Article 6 of reliance on evidence from anonymous witnesses seeking protection (Doorson v. the Netherlands and Van Mechelen and Others v. the Netherlands, both cited above, as well as, more recently, Krasniki v. the Czech Republic, no. 51277/99, 28 February 2006) as well as from witnesses who were unavailable for examination during the criminal proceedings for various reasons (Ferrantelli and Santangelo v. Italy, 7 August 1996, Reports 1996 III; S.N. v. Sweden, no. 34209/96, § 45, ECHR 2002 V; and, more recently, Zentar v. France, no. 17902/02, 13 April 2006; Gossa v. Poland, no. 47986/99, 9 January 2007; Mirilashvili v. Russia, no. 6293/04, 11 December 2008; and Mamikonyan v. Armenia, no. 25083/05, 16 March 2010).

In those cases, the Court has found that there is no violation of Article 6 § 1 of the Convention if the handicap under which the defence so labours is sufficiently counterbalanced by the procedures followed by the judicial authorities. However, “even when ‘counterbalancing’ procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent” on such adverse evidence (Doorson, at §§ 72-76 and Van Van Mechelen, at §§ 54-55, both cited above; see also A.M. v. Italy, no. 37019/97, § 25, ECHR 1999 IX; and Lucà v. Italy, no. 33354/96, § 40, ECHR 2001 II). In so deciding, the Court recognises the important public interest in fighting organised crime (Saïdi v. France, 20 September 1993, § 44, Series A no. 261 C) and protecting the rights of witnesses (Doorson, § 70)

59. However, the Court has also found that the relevant adverse evidence was such a minor part of the evidence founding the conviction that its admission was considered insufficient, of itself, to render the proceedings seen in their entirety to be unfair (Haas v. Germany, (dec.) No. 73047/01 17 November 2005; the above-cited Gossa judgment, at § 63; the Mamikoyan v. Armenia, cited above, § 44-46; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 220, ECHR 2009 ... where the Court found that a procedure under Article 5 § 4 required substantially the same fair trial guarantees as provided by Article 6 of the Convention).

2. Application to the present case

60. The Court has examined the nature and weight of the impugned belief evidence which was admissible and accepted by the domestic courts and, further, the significance of the evidence admitted against the applicant independently of the impugned belief evidence.

61. As noted above, the Chief Superintendent’s belief, that the applicant had been a member of the IRA as charged, was admissible evidence which was accepted by the trial court. The grant of privilege meant that the Chief Superintendent could not be cross-examined so that the information grounding his admissible belief evidence was not available to the applicant. The accused, therefore, did not know the underlying information on which the belief evidence was based and could not therefore counter it. This distinguishes this case from cases of anonymous/unavailable witnesses in which the underlying information tending to the guilt of the accused has been opened in some form to the trial court so that the accused is aware of its content (see paragraph 58 above). Similarly, the sources of the information on which the belief were based were unknown to the accused. The Chief Superintendent acknowledged only that his evidence was based on sources both internal and external to the police and that disclosure thereof would, inter alia, endanger lives.

62. It is with the admission of the belief evidence, associated with a grant of privilege, with which the applicant centrally takes issue.

63. The Court notes that the impugned evidence was not an assertion of fact but amounted only to the “belief” of the Chief Superintendent (Fennelly J. at paragraph 34 above). While the CCA suggested that it might be “persuasive”, the Supreme Court clarified that belief evidence had no “special status” (at paragraph 31 above), it being one piece of admissible evidence to be considered by the trial court having regard to all the other admissible evidence. While the trial court did not expressly state the precise weight it accorded to the belief evidence, the grant of privilege was a factor it had taken into account in its assessment of the evidence. Finally, the Supreme Court found that the SCC (Geoghegan J.) had applied the correct methodology as to the weight to be attached to the belief evidence (paragraph 29 above).

64. Furthermore, and decisively for the Court in the present case, the domestic courts found that there was extensive admissible evidence of the applicant’s membership of the IRA, other than the impugned belief evidence of the Chief Superintendent.

The SCC judgment recorded in considerable detail the evidence provided by the witnesses (13 including the applicant) and its assessment of the credibility of the relevant testimonies. Despite vigorous attempts to discredit the principal prosecution witness, DM, the SCC found him to have been truthful, although evidently fearful. Another witness (PB) was accepted as a witness hostile to the prosecution, was found to be clearly “terrified” giving the impression that he wished to avoid implicating the applicant but, nevertheless, was found to have given evidence which supported the prosecution case. GC’s and the applicant’s evidence was found to be unconvincing and untrue so that the evidence of DM and PB was to be preferred. Through these latter two witnesses, and independently of the impugned belief evidence, the SCC established the applicant’s important role in the meeting on 27 May 2002 where, inter alia, he introduced his co-accused as a “top man” in the IRA (evidence of PB) and when, in concert with his co-accused who later pleaded guilty to being a member of the IRA, a negotiated sum of money was extorted for the CIRA under threat of serious violence (evidence of DM). DM’s evidence also included a later payment directly to the applicant of an instalment of the money so extorted. The SCC further established, through those and other witnesses’ evidence, additional relevant associations and connections between the applicant and his co-accused. Finally, certain of the applicant’s answers to police questions in interview, which were material to the investigation of the offence, were found not credible, untrue and misleading as was “quite clear” from the later evidence of the applicant himself as well as of, inter alia, DM, PB and GC.

On appeal, the CCA noted that the case had involved striking conflicts of evidence not explained simply by errors of memory or lapse of time so that, quite clearly, false and perjured evidence had been given. The CCA was impressed by the care with which the SCC assessed the credibility of the various witnesses and the clear way in which it expressed its findings and had “no doubt that there was credible evidence upon which such findings could made”.

The Supreme Court (Geoghegan J.) noted that there was substantial evidence implicating the applicant independently of the belief evidence. Fennelly J. analysed the evidence in some detail, summarised the core established facts and concluded that it was crucial that there was extensive evidence before the SCC, which was accepted by that court, of the involvement of the applicant with an unlawful organisation, outside of the impugned belief evidence.

65. The Court notes, as did the CCA and the Supreme Court (above at paragraphs 25 and 43, respectively), that it is not required to consider the fairness of proceedings in which the belief evidence admitted under section 3(2) of the 1972 Act constituted a more significant part of the evidence founding the conviction. In such circumstances, and recalling that this Court’s task is to ascertain whether the proceedings in their entirety were fair (paragraphs 56-59 above), the Court considers that the weight of the additional evidence of the applicant’s membership of an illegal organisation was such that the admission and acceptance of the impugned belief evidence must be considered insufficient to render the proceedings in their entirety unfair. Accordingly, in the particular circumstances of the present case, the admission of the belief evidence of the Chief Superintendent did not infringe the rights of the defence under Article 6 § 1 of the Convention.

66. It follows that the present applicant’s complaint under Article 6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Article 13 in conjunction with Article 6 of the Convention

67. The applicant complained that he had no effective remedy as regards the admissibility of, and reliance on, the evidence of the Chief Superintendent under section 3(2) of the 1972 Act. However, Article 6 constitutes the lex specialis as regards matters concerning the fairness of proceedings, Article 13 having less stringent requirements (for example, Yankov v. Bulgaria, no. 39084/97, § 150, ECHR 2003 XII (extracts); and Black v. the United Kingdom (dec.), no. 56745/00, 27 September 2005).

68. Accordingly, his complaint under Article 13 must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall
Registrar President