European Court of Human Rights

Information Note on the Court’s case-law No. 169

December 2013

Donohoe v. Ireland - 19165/08

Judgment 12.12.2013 [Section V] See: [2013] ECHR 1276

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Admission in evidence against person accused of membership of unlawful organisation of police testimony based on undisclosed sources: no violation

 

Facts - The case concerned the fairness of the applicant’s trial and conviction before the Special Criminal Court in Ireland for being a member of the IRA. His conviction was based, among other things, on the sworn testimony of a police chief superintendent, who testified in reliance on confidential information available to him from police and civilian sources that it was his belief that the applicant was a member of the IRA. When asked to identify the sources of his belief, the chief superintendent refused, claiming privilege on the grounds that disclosure would endanger lives and State security. The Special Criminal Court directed the chief superintendent to produce all relevant documentary sources forming the basis of his belief which it then reviewed in order to be satisfied as to the reliability of his belief. Neither the prosecution nor the defence had access to that confidential material. In his application to the European Court, the applicant complained that the non-disclosure had made his trial unfair as it seriously restricted his defence rights.

Law - Article 6 § 1: In accordance with the general principles articulated in Al-Khawaja and Tahery v. the United Kingdom, three questions had to be addressed: whether it was necessary to uphold the claim of privilege, whether the undisclosed evidence was the sole or decisive basis for the conviction and whether there were sufficient counterbalancing factors, including the existence of strong procedural safeguards, in place to ensure that the proceedings, when judged in their entirety, were fair.

On the first, the Court found that the justifications given for the grant of privilege - the effective protection of State security and of informers in danger of reprisals from the IRA, and the effective prosecution of serious and complex crime - were compelling and substantiated, so that the decision not to disclose the sources had therefore been necessary. As to the second, the undisclosed evidence was not the sole or decisive basis for the conviction, as the trial court had heard over fifty other prosecution witnesses and there had been “significant” other corroborative material before it.

As to whether sufficient safeguards had been in place to counterbalance the disadvantage the grant of privilege had caused the defence, the trial court had adopted a number of measures: it had reviewed the documentary material upon which the chief superintendent’s sources were based in order to assess the adequacy and reliability of his belief that the applicant was a member of the IRA; it had explored whether the non-disclosed material was relevant or likely to be relevant to the defence and had been attentive to the requirements of fairness when weighing the public interest in concealment against the interest of the accused in disclosure; and, lastly, when deciding on the weight to be attached to the chief superintendent’s evidence it had expressly excluded from its consideration any information obtained through its review of the documentary material and had confirmed that it would not convict the applicant on the basis of the chief superintendent’s evidence alone.

In addition to those measures taken by the trial court, the laws allowing the admission of “belief” evidence ensured that it could only be provided by high-ranking police officers, that it would be assessed by the court as a belief or opinion rather than as conclusive factual evidence, and that the defence could still cross-examine the chief superintendent in a range of ways - such as by asking the nature of his sources, whether he knew or had personally dealt with any of the informants and what was his experience in such intelligence gathering - in order to test his demeanour and credibility.

Overall, therefore, and bearing in mind that the Court’s task was to ascertain whether the proceedings in their entirety were fair, the weight of the evidence other than the belief evidence, combined with the counterbalancing safeguards and factors, had to be considered sufficient to conclude that the grant of privilege as regards the sources of the chief superintendent’s belief had not rendered the applicant’s trial unfair.

Conclusion: no violation (unanimously).

(See Al-Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06, 15 December 2011, Information Note 147)

 

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