[14/17]
The President
Baker J.
McCarthy J.
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
APPELLANT
JUDGMENT of the Court delivered on the 28th day of May 2019 by Birmingham P.
1. On 26th October 2016, the appellant was convicted in the Special Criminal Court of five counts that had appeared on a Bill of Indictment. These were:
2. Subsequently, on 15th December 2016, the appellant was sentenced to a term of imprisonment of eight and a half years. He has appealed against both his conviction and sentence. This judgment deals with the conviction aspect only.
3. In broad terms, there are two components to this appeal. First, there is a complaint by the appellant that his rights as an Irish speaker who wished to conduct his trial in Irish were infringed by the Court of trial. Secondly, there is a complaint about the sufficiency of the evidence available to and relied upon by the Trial Court when convicting the appellant.
4. The appeal was conducted bilingually with everything said in English in the course of the appeal interpreted into Irish and everything said in Irish interpreted into English. This judgment has been prepared in the English language as it is the vernacular of each of the members of the Court, but as a matter of courtesy, arrangements have been made to have the judgment translated into Irish so that the Irish and English language versions can be made available simultaneously. This approach accords with that adopted by Geoghegan J. in the case of Ó Beolain v. Fahy [2001] 2 IR 279 at p. 355.
5. Before turning to address the two main aspects of the case, which might be referred to as the "language rights issue" and the "sufficiency of evidence to convict" issue, it may be convenient to refer to the factual background. This summary draws heavily on the judgment and ruling of the Special Criminal Court which was delivered by Hunt J. on 26th October 2016, which was Day 13 of the trial. This case concerned events that took place between 16th and 18th May 2011. The dates are of some significance as the period during which the events took place coincided with the State visit to Ireland of Queen Elizabeth II.
6. On 16th May 2011, Bus Éireann was operating a service from Ballina, County Mayo to Dublin via Longford: the No.22. The service was being operated on behalf of Bus Éireann by Corduff Travel. The Trial Court was satisfied that an object was placed on the bus during its stop at Longford by a male who did not get onto the bus and that the person who performed this act was the individual pointed out by Mr. Gollec Krzysztof, the bus driver, on the CCTV footage. At trial, cross-examinations were conducted by the defence devoted to establishing the possibility that the explosive device that was subsequently discovered on the bus could have been placed on the bus at any of the other stops where the luggage compartment was opened. Prior to the Longford stop, the bus had stopped at Swinford and Foxford, and it proceeded to stop at a number of locations prior to being halted by Gardaí.
7. In the course of its judgment and ruling, the Court commented that it had paid particular attention to the cross-examination of Garda Inspector Jones relating to his interpretation of the CCTV footage of the individual seen approaching the bus at Longford and had carefully reviewed the CCTV footage. The Trial Court was satisfied that by reason of the matters referred to by Inspector Jones, including angles and the manner in which the bag was held before and after the approach to the bus as well as the respective shape of the bag at each time, that a sizeable object was held by the person approaching the bus which was not in the bag on departure.
8. At the request of the defence, the members of this Court have viewed the footage during the course of the appeal. On the basis of its limited viewing, while not in any sense rejecting the evidence of Inspector Jones or disagreeing with the interpretation of the evidence by the Trial Court, this Court would not be in a position to fully endorse their conclusions. It is the case that the Trial Court had the advantage, which we did not, of hearing from Inspector Jones. This advantage is particularly acute when he is commenting on CCTV footage which this Court has had the ability to view and review.
9. The CCTV footage does establish that around 7.38p.m, the bus stopped for a period in Longford, stopping in the parking area outside Longford railway station where Mr. Krzysztof had a break. The bus driver remained around the bus at all times that it was in Longford because he had a problem with the wipers which he was trying to rectify. The CCTV footage which was played at trial and has been viewed by the members of this Court shows a person approaching the area where the bus was parked at 7.44p.m. and leaving again at 7.50p.m. The individual carried a bag at each stage of the CCTV footage. He wore a dark, hooded jacket, darker baggy bottoms, and white shoes. The Court of trial observed that it would not be possible to make an identification of the accused or anyone else based solely on that evidence and this Court would agree with that observation.
10. During the course of the trial, Mr. Krzysztof was asked whether anything unusual had happened during the Longford stop-over. He said there was a situation where a man came to the bus, put something on the bus, and walked away. Mr. Krzysztof thought perhaps he was going to get another bag or was leaving a bag for someone who was already on the bus. He described the man as having a light coat, dark trousers, a hat, hair on his head, and as carrying something resembling a supermarket bag. In his rear-view mirror, the driver saw the man putting something into the bus while kneeling. The driver also described feeling something being put on the bus at that stage. After the break, the bus left Longford and continued its journey towards Dublin. It stopped once in Edgeworthstown, twice in Mullingar and once in Maynooth before Mr. Krzysztof was contacted by Gardaí at which stage he brought his bus to the bus bay at Stafford Road outside Maynooth where the bus was searched. In the luggage hold, a makeshift bomb was discovered with a firework serving as a detonator and along with it a quantity of inflammable liquid. The object was located by Garda Lorna Reilly and was contained in a blue, white, and red Tesco long-life shopping bag.
11. Very shortly after the events at Longford railway station, a call was received at Longford Garda station which was taken by Garda Peter O'Donnell at approximately 8.16p.m. The caller was male and the call lasted approximately thirty seconds. The Garda taking the call was told to listen carefully and the caller told the guard that there was a bomb on a bus; the Ballina to Dublin bus, the No. 22 with Corduff Travel. The caller also mentioned that there was a second bomb on a bus at Busaras and the third bomb was stated to be at Sinn Féin headquarters. The caller spoke in English and the Garda felt that the caller was between thirty and forty years of age. The three locations referred to by the caller were searched. While Garda Reilly located a bomb in the luggage compartment of the bus from Ballina to Dublin, nothing was found either in Busaras or at Sinn Féin headquarters. The Court of trial, correctly, in our view, attached significance to the accuracy of the information provided by the caller to Longford Garda station regarding the presence of a bomb on that particular bus. The Trial Court observed that this was not a coincidence or the produce of guesswork on the part of the caller. Rather, the contents of the call demonstrated that the caller had, at that time, specific knowledge of the fact that an explosive device had been or would be placed on that particular bus.
12. As one would expect, a major Garda investigation was put in place. An early priority was to obtain details of all calls on Ext. 4570, the Public Office extension at Longford Garda station between 8pm and 9pm. The records accessed showed that at 8.13pm. on 16th May 2011, the Exchange received an incoming phone call. The call lasted some thirty-seven seconds. The timing and duration of the call were very close to what had been estimated by Garda Peter O'Donnell who took the call. An additional examination of the O2 network records confirmed a call to the Longford Garda landline lasting thirty-seven seconds at 20.15.45 hours. Further enquiries saw information emerging in relation to the O2 shop at Longford Shopping Centre. On 16th May 2011, Mr. Pavel Paskov was working there and at approximately 4.45pm on that afternoon, he sold a SIM card to a man who was dressed in a dark hat, wearing glasses and a brown jacket. The shop assistant described the customer as being in a hurry and not wanting a receipt for the transaction. There was also CCTV footage from the shopping centre. Till records from the O2 store showed that Mr. Paskov had sold a ‘Three' Pre-paid Speak-Easy SIM pack and that the SIM card was associated with a particular phone number: (086) 7362458 on the O2 network. The customer was described as Paul Brennan, Longford. For convenience, the Trial Court thereafter referred to the number in question as "the 086 number". O2 data also established that the handset and SIM card used to make the call were within the operative area of a particular cell site, Cell Site 23031 on the O2 network at the time. The said antenna covers an area to the east of Edgeworthstown, County Longford.
13. On 18th May 2011, Garda Tom Egan was acting as Member in Charge at Longford Garda station. At about 7.21p.m, he received a phone call to the station. The Garda's recollection of the call was that the caller said "listen up, I'm a member of the Republican Squad". The caller went on to state that a bomb had been placed beside or in Dublin Castle and it was due to go off at around 8pm. Notes recorded by the Garda were as follows:
"[l]isten up and record this message. Listen carefully to what I'm going to say. I'm a member of the Republican Brotherhood Squad A. Two mortars are set for Dublin Castle at 8pm. This is for the Queen of Blood, war of Iraq."
It is to be noted that on the evening of 18th May 2011, there was a State dinner held in honour of Queen Elizabeth II, hosted by President Mary McAleese at Dublin Castle.
14. Once more, the Longford Garda Station software and the O2 network records were examined. Those records establish that there was a call at 19.20.44 hours of thirty-eight seconds duration. The calling number was "the 086 number" and the handset and SIM cards used to make that call were within the operative area of Cell Site 23003, that antenna covering an area on the network from north-west of Ardagh, County Longford, stretching towards Longford town.
15. On the afternoon of 20th May 2011, Garda Keith Meagher was acting as Member in Charge at Longford Garda station. In the course of his duty, at approximately 15.16 hours, he too received a call on the Garda station landline. The caller was male and said that he should listen carefully and record the call. The Garda was told that the "Irish Republican Brotherhood, the true Irish Army" was on the line. Garda Meagher was then informed that there were two bombs in Cork. The caller said "we didn't get Dublin Castle, but we did the bomb in Maynooth". The Garda interrupted the caller and asked where the bombs were in Cork and was told in the toilets of Cork Airport. It is to be noted that Queen Elizabeth II was due to depart Cork Airport that day following the conclusion of her State visit. Once more, the Longford Garda station software and O2 records were interrogated. The records establish that there was a call at 15.12.53 hours of forty-four seconds duration. The handset and SIM card used to make the call were within the operative area of Cell Site 23042 at the time. The antenna was situated in the centre of Longford and covered an area to the north-east of the cell site. The Court of trial, again, correctly, in our view, attached significance to the fact that the caller was familiar with and specifically referenced the subject of the earlier calls to Longford Garda Station from "the 086 number".
16. In relation to the two later calls, nothing untoward was found either in Dublin Castle or at Cork Airport. In those circumstances, the Court of trial was satisfied that each of the offences on the indictment were committed on the dates and in the manner specified and that the real issue at trial was whether the prosecution had proved beyond reasonable doubt that the accused had committed all or any of the offences. The Court observed that the case against him was largely or completely based on circumstantial evidence.
17. By the afternoon of 20th May 2011, the appellant had become a person of interest in the context of the developing investigation. On that afternoon, he was followed and observed by a Detective Garda from the Crime and Security Section. At approximately 3.55p.m, the appellant was arrested in the car park of Lidl Supermarket on the Dublin Road, Longford. Prior to that, at approximately 2.45p.m, the accused was observed leaving his residence at Drumlish, getting into a white Seat Ibiza car Reg. No. 96 KE 4994. He was alone. He was followed to Drumlish post office which he was seen to enter and left the post office at 2.55p.m. when he travelled to a cul de sac on the Granard Road just off the Longford Bypass. Thereafter, he travelled towards the centre of Longford to the Lidl car park on the Dublin Road via a traffic shortcut at Deanscurragh. The Detective Garda from the Crime and Security Unit, whose identity was permitted to be kept secret by the Trial Court, was adamant that the only time that he did not maintain observation of the accused was when he entered the post office at Drumlish. On reaching the car park of Lidl, the Detective Garda took up a position where he could maintain observation of Mr. Billings while he was at that location. He did not observe the accused making any telephone calls. He was emphatic that the appellant was alone in his car throughout the time that he was parked in the Lidl car park and that he did not leave his vehicle.
18. The relevance of this is that when the accused was arrested, he gave an account of his movements on Friday 20th May 2011. This account said that he had got up at noon, went out at 3p.m, and drove his car the usual way to Longford from Drumlish by the first roundabout. He went on into the town centre and then on to Lidl where he parked in the car park where he sat in his car and had tea and biscuits. Giving evidence at trial, he said that when he was in the car park at Lidl, he knew that Gardaí were around. He contended that he had found a SIM card on the ground where he stopped his car. He said that he saw it when he was driving in and picked it up from the ground. Neither the accused's account of his movements to Gardaí or what he had to say in evidence at trial made any reference to him stopping in a cul de sac. However, the Court of trial was satisfied by Garda evidence that he did indeed stop at the location and was stopped there at a time when "the 086 number" made the 15.12 hours call to Longford Garda station. The Court pointed out that the location was well within the footprint of Cell Site 23042.
19. Following the arrest of the accused, the vehicle in which he was sitting, the Seat Ibiza, was seized and brought to Longford Garda station where it was searched. A number of items were found during the course of the search including transparent, disposable gloves in the door pocket of the front passenger door, a Dunnes Stores long-life shopping bag on the floor in the passenger footwell in which there was a woollen black hat, a pair of black woollen gloves, and an O2 mobile SIM pack with certain handwriting on it. The SIM pack also contained the associated SIM card for "the 086 number". A search of the boot of the car disclosed a five-litre container with a small amount of petrol in it and the bottom of a plastic bottle that was cut in a manner suggestive to produce a makeshift funnel.
20. The Court of trial addressed, first, the question of whether the prosecution had proved that the accused was responsible for the 086 calls made to Longford Garda station. The Court was satisfied that all of the calls made to Longford Garda station were made by the caller using the 086 mobile number associated with the SIM card purchased from Mr. Paskov at the Longford Shopping Centre O2 store. The Court was satisfied that the purchaser of the SIM pack visible on the Longford Shopping Centre CCTV footage and still photos taken from it bore a strong physical resemblance to the accused. However, the Court was of the view that it could not reach a conclusion that the accused was one and the same man as the person appearing in the CCTV footage by reason merely of the similarity of appearance. Despite this, there were additional features that could be regarded as significant. A feature of particular importance was the clothing visible on the CCTV footage and stills when compared with the clothing worn by the accused and seized from him on the day of his arrest. This included a purple T-shirt and black tracksuit bottoms which were similar to those worn by the man seen leaving the shopping centre. The Court was of the view that such items were commonplace and perhaps would not add very much to the weight of the evidence. The distinctive appearance and trim of both the jacket and the trainers seized from the accused were seen as being of particular significance. The Trial Court said that it had carefully examined the trim panels on the top and bottom of the jacket and on the end of the sleeve, together with the length and colouring of the jacket and the position of the black trim on the trainers. The Court was satisfied beyond reasonable doubt that the combination of jacket and trainers worn by the accused at the time of his arrest and that worn by the man on the CCTV footage were not merely similar, but were in fact identical. The Court felt that this added significant weight to the conclusion that the purchaser seen on the CCTV footage and stills from the footage was, in fact, Mr. Billings. The Court acknowledged that it was possible that there was another man of the same general appearance as Mr. Billings who happened to purchase a SIM card in the O2 store in Longford wearing an identical jacket and shoes to those worn by Mr. Billings when arrested some days later. However, the Trial Court said that matters did not rest there and there was further evidence to assist in associating the accused with the SIM card used to initiate the calls to Longford Garda Station. The Trial Court referred to what it saw as a matter of obvious significance namely the fact that the 086 SIM card was found in the possession of the accused in his car when he was arrested. The Court referred to the suggestion that Mr. Billings attempted to explain this by reference to the fact that he had found the SIM card and package discarded in the car park of the Longford Lidl store when he parked there to have tea and biscuits at a time when he knew he was under Garda observation. The Court said that if this was to be accepted as a reasonable possibility, it followed that the accused was so unlucky as to stumble across the discarded SIM card and package in a large car park shortly after the SIM card had been used to make a phone call to the Garda station about fifteen minutes earlier. The Trial Court commented that it was there that it passed the point where it, as a Court, could entertain a reasonable possibility that the accused was an unfortunate and unlucky victim of coincidence.
21. The Court of trial pointed out that a SIM card alone cannot generate a mobile telephone call. It must operate in a handset capable of connecting to the mobile phone network. Every individual mobile handset is assigned a unique IMEI number. At the time of his arrest in the car park, a white Motorola phone was seized from the appellant. The Court referred to evidence that it heard from Sergeant Niall Duffy, an expert in these matters, and based on his evidence was satisfied beyond reasonable doubt that the 086 SIM card was used in Mr. Billings' Motorola phone when all calls relevant to the investigation were made to Longford Garda Station. The Special Criminal Court addressed the contention on behalf of Mr. Billings that the appearance of the IMEI number of his phone on the network data relating to the calls to Longford Garda Station was due to a cloned IMEI operating in conjunction with "the 086 number" at the time of the calls. The Court said it was simply unable to entertain the sheer implausibility of this account by reason of the nature and number of coincidences that would involve. The Trial Court referred to the fact that the evidence had established that the IMEI number in question was associated with use of a Northern Ireland 02 SIM card held by Mr. Billings. It pointed out that there was no incidence of a cloned IMEI operating in a different area from the genuine Motorola IMEI used by the accused for making personal calls charged to the Northern Ireland 02 SIM card. Its analysis led it to the view that the 086 SIM card was swapped in and out of the accused's Motorola phone when required for the purpose of making calls to Longford Garda Station.
22. In the circumstances, the Court of trial was satisfied beyond reasonable doubt that the circumstantial evidence adduced had demonstrated conclusively that the accused was responsible for making the three calls to Longford Garda Station landline. The fact that the landline number of Longford Garda Station to which calls were made was written on the outside of the SIM pack strongly supports an inference that the purchaser of the SIM card deliberately planned the phone calls that were made.
23. On the basis of its analysis and assessment of the evidence, the Special Criminal Court was satisfied beyond reasonable doubt of the guilt of the accused on Counts 2 to 5. So far as the possession of the explosives device Count is concerned, the Trial Court acknowledged that the explosive device that was found by the Gardaí when the bus was searched at Maynooth could have been placed on the bus at any of the stops between Ballina and Maynooth. However, the Court was satisfied beyond reasonable doubt that the device was in fact placed on the bus whilst it was stopped at the Longford railway station. It said that such a conclusion arose from a combination of factors:
(a) the stop at Longford was the driver's break and therefore presented the longest opportunity for a non-passenger to place an object on the bus;
(b) the caller to Longford Garda Station who displayed knowledge that a device had been placed on that particular bus was using a SIM card purchased in Longford;
(c) the first call to the Garda station was routed through a cell site in County Longford;
(d) the packaging of the SIM card used to make the warning call was found in a bag in the accused's car at the Lidl car park in Longford with handwriting containing the Registration Number of the bus in question, the landline number of Longford Garda Station, and a bilingual wording closely resembling the name of the owner of the bus;
(e) the Longford stop was the only occasion during the journey when the bus driver noted an unusual event involving somebody approaching his bus and where the driver felt an object being placed in the luggage compartment by a person who walked away without boarding the bus or buying a ticket; and
(f) the call to Longford Garda Station indicating that a bomb was on the specific bus where it was later found was made at 20.15 hours shortly after the departure of the bus from Longford.
The Court said it was paying particular attention to the cross-examination of Inspector Jones about his assessment of the CCTV footage of the individual approaching the bus and leaving. The Court said that on the totality of the evidence, the Court was satisfied beyond reasonable doubt that the CCTV footage at the railway station captured the individual placing the improvised explosive device onto the bus. It felt that there was no reasonable possibility on the evidence that it was placed on the bus in any other location.
Sufficiency of the Evidence
24. It is convenient to address the aspect of the case dealing with the sufficiency of evidence first. Both the written and oral submissions drew a distinction between Count 1, on the one hand, the explosives count, and Counts 2 to 5, the hoax telephone calls, on the other hand. All of the appellant's focus has been on Count 1. So far as the hoax warning call counts are concerned, in the written submissions, the appellant confined himself to submitting that the Court did not examine the evidence properly and that the Court failed to correctly apply or have regard to an innocent explanation, going on to say that the appellant will argue the question further during the hearing in the Court. However, during the course of the oral hearing, counsel indicated that so far as Counts 2 to 5 were concerned, the appellant was content to rely on his written submissions. In the result, there has been no real argument advanced either in written or oral submissions in relation to the safety and correctness of the hoax warning convictions. This is not really surprising. As set out carefully and comprehensively by the Trial Court, the evidence in relation to these Counts was overwhelming and it is inconceivable that the Court could ever have reached a conclusion in relation to these counts other than the one that it did.
25. In respect of Count 1; the explosives count, the situation is quite different. At trial, in the course of written submissions, and on the hearing of the appeal, the appellant was at pains to submit that there was no proof that the explosive device found in the bus was left at Longford railway station. It was pointed out that the bus had stopped at a number of locations on the journey from Ballina, both before and after the Longford stop, and that the device could have been placed on the bus at any of these locations, or indeed, at Ballina. It is submitted that the CCTV footage from Longford railway station is not of high quality and does not permit the making of an identification. The assessment by Detective Inspector Jones that the person walking away from the bus, having been to the bus, was not carrying the same object as he had brought to the bus and the acceptance and reliance on this by the Trial Court is strongly criticised. It is said that in a situation where there are separate counts in relation to the telephone calls, that to place reliance on these for the purpose of the explosives offence is unfair and impermissible.
26. In the Court's view, this contention is misconceived. It will very often be the case that proving involvement in one offence which forms part of a wider incident will be an important building block for proving involvement with other offences. If one takes the example of an armed raid on a bank, establishing a link to the firearms, perhaps by way of evidence of firearms residue, will be relevant, not just to the firearms offence, but also to the robbery offence. This was, as the Special Criminal Court recognised, a circumstantial evidence case. The Court is satisfied that there was ample evidence available to the Court of trial on foot of which it could, if it wished, decide to convict in relation to Count 1.
Language Rights Issues
27. As formulated in the Notice of Appeal, the appellant contends that the Special Criminal Court breached the constitutional rights of the appellant (including Articles 48, 8, 24, and 25 of the Constitution of Ireland) to conduct his part of the trial entirely through Irish without obstacle and without disadvantage when compared to an individual who is content to use the English language.
28. In the written submissions, in relation to the first ground, it is stated:
By way of background, it should be explained that it would appear that when Mr. Billings first appeared before the Special Criminal Court, he indicated that he wished to have his case conducted in Irish. When he next appeared before the Court on 2nd June 2016, at which stage he was represented by solicitors as well as junior and senior counsel, the presiding Judge addressed senior counsel for the defence as follows: "[y]ou weren't present on the last occasion, Mr. Giblin. On the last occasion, we said that of course any applicant before the Court has every right to conduct a case in Irish, but because of the requirement that everybody understand what's happening, we'll deal with it through an interpreter."
To which counsel responded: "Ta sé ar eolas agam féin" - ["I know it myself"]
29. When the Court drew this exchange to the attention of counsel, we were told that the day of the hearing in question, when the main business to be conducted was a bail application, one which was successful, was the first occasion that counsel had an opportunity to meet his client and that his remark should not be seen as any sort of concession or acknowledgment of the appropriateness of proceeding with the assistance of an interpreter.
30. When the trial proper commenced on 4th October 2016, after the appearances were announced, senior counsel for the prosecution informed the Court that the accused man had invoked his right to be tried in Irish, adding:
"[i]n the circumstances, it would be necessary to have interpreters for Mr. Billings and also for the Court and for the prosecution. I'm not conversant, particularly conversant in the Irish language, so I'll be requiring assistance from an interpreter so I'll be asking the Court to swear in the interpreter before any arrangement takes place."
Two interpreters were then sworn. At that stage, prosecution counsel asked that one of the two interpreters should be nominated for the benefit of the accused. The presiding Judge then asked senior counsel for the defence whether he wished to make a selection. He would seem to have received some indication that was already done. Counsel for the prosecution asked that Mr. Billings be arraigned on the indictment, commenting that two indictments were being handed into Court: an English version and an Irish version. On the basis of that exchange, the members of this Court had understood that whenever English was spoken at trial, that it was interpreted in Irish for the benefit of Mr. Billings, and whenever Irish was spoken, that it was interpreted in English for the benefit of those in Court who wished to or needed to avail of that facility. However, at an early stage of the appeal hearing, we were told that was not in fact the case and that everything that happened in Court in English was interpreted into Irish and everything said in Irish interpreted into English for everyone's benefit, the two Court-appointed interpreters alternating at approximately hourly intervals for that purpose.
31. The appellant has some general observations and criticisms in relation to the position of Irish speakers before the Court and focuses on two issues in particular; the first being the fact that the Explosive Substances Act, 1883 was not translated into Irish and the second being the failure to provide an overnight transcript in the Irish language where an English version was made available. In the particular circumstances of the appeal, it is convenient to address the specific issues first before commenting on the more general points raised.
32. As the appellant has done, we have and will refer to Irish speakers and English speakers, but we appreciate that the terms are not mutually exclusive and that there are, of course, people who speak Irish and English. Indeed, we understand, on the basis of the last Census, that all of those in Ireland for whom the Irish language is their first language also speak English.
The Explosive Substances Act 1883
33. The relevant provisions of the Explosive Substances Act 1883 were amended by s. 15(3)-(4) of the Offences Against the State (Amendment) Act 1998 in the following terms in the English version:
"(3) Section 3 of the Explosive Substances Act 1883, inserted by s. 4 of the Criminal Law (Jurisdiction) Act 1976, is hereby amended by the substitution for ‘imprisonment for life' of ‘a fine or imprisonment for life or both'.
(4) Subection 4 of the Explosive Substances Act 1883 is hereby amended by the deletion in subsection (1) of all the words from ‘of felony' to the end of that subsection and the substitution ‘of an offence and shall be liable, on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years or both, and the explosive substance shall be forfeited'."
The respective Irish language version of the 1998 Act is in the following form: "(3) Leasaítear leis seo alt 3 den Explosive Substances Act, 1883, a cuireadh isteach le halt 4 den Acht um an Dlí Coiriúil (Dlínse), 1976, trí ‘a fine or imprisonment for life or both' a chur in ionad ‘imprisonment for life'.
(4) Leasaítear leis seo alt 4 den Explosive Substances Act, 1883, trí na focail go léir i bhfo-alt (1) ó ‘of felony' go dtí deireadh an fho-ailt sin a scriosadh agus trí ‘of an offence and shall be liable, on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years or both, and the explosive substance shall be forfeited.' a chur ina n-ionad."
It is noteworthy that the Irish language version of the 1998 Act does not include a corresponding translation for the text being amended in the Explosive Substances Act 1883.
34. While the amendment to s. 3 of the Explosive Substances Act effected by s. 4 of the Criminal Law (Jurisdiction) Act 1976 is not directly in issue, it is of note that a similar idiosyncrasy arises in the Irish language version of the Criminal Law (Jurisdiction) Act 1976 in that it does not provide an Irish language version of the section being substituted. It may be of assistance to reproduce the Irish language version of s. 4 of the 1976 Act:
"4. —Leasaítear leis seo an Explosive Substances Act, 1883, trí na hailt seo a leanas a chur in ionad ailt 2 agus 3:
"2.—A person who in the State or (being an Irish citizen) outside the State unlawfully and maliciously causes by an explosive substance an explosion of a nature likely to endanger life, or cause serious injury to property, shall, whether any injury to person or property is actually caused or not, be guilty of an offence and, on conviction on indictment, shall be liable to imprisonment for life.
3.—A person who in the State or (being an Irish citizen) outside the State unlawfully and maliciously—
(a) does any act with intent to cause, or conspires to cause, by an explosive substance an explosion of a nature likely to endanger life, or cause serious injury to property, whether in the State or elsewhere, or
(b) makes or has in his possession or under his control an explosive substance with intent by means thereof to endanger life, or cause serious injury to property, whether in the State or elsewhere, or to enable any other person so to do,
shall, whether any explosion does or does not take place, and whether any injury to person or property is actually caused or not, be guilty of an offence and, on conviction on indictment, shall be liable to imprisonment for a term not exceeding twenty years, and the explosive substance shall be forfeited."
The particular relevance of the Explosive Substances Act 1883 in the context of the trial is that the Statement of Offence on the indictment read "possession of an explosive substance contrary to section 4 of the Explosive Substances Act 1883 as substituted by section 15 of the Offences Against the State Act 1998".
35. It is the situation that a number of the cases in which language issues have been considered by the Courts have involved the non-translation of official documents including documents relevant to criminal proceedings. By way of example, the Supreme Court case of Ó Beolain v. Fahy had its origin in the fact that the appellant was charged with an offence contrary to s. 49 of the Road Traffic Act 1961, as inserted by s. 10 of the Road Traffic Act 1994. His dealings in relation to the alleged offence with the Gardaí were conducted in Irish, the summons was served in the Irish language and the Certificate of the Medical Bureau of Road Safety, on which the prosecution intended to rely, was communicated to him in Irish. However, the Road Traffic Act 1994, the Road Traffic Act 1995, and the Rules of the District Court 1997 were not. He had sought declarations in relation to the constitutional obligation to make available an official translation of Acts of the Oireachtas in the first official language when the President signs the text of a Bill in the second official language. Specifically, declarations were sought in relation to the State's constitutional duty to make available official translations of the Road Traffic Act 1994, the Road Traffic Act 1995, and the Rules of the District Court on the basis that the State had failed to do so within a reasonable length of time. The majority of the Supreme Court held in favour of granting the appellant the declaratory reliefs sought. The antecedent case of Delap v. An tAire Dlí agus Cirt, Eire agus An tArd-Aighne [1990] T.É.T.S 46 is also of note in this regard as it was one which the absence of an official Irish translation of the Rules of the Superiors Courts led to the Minister of Justice being required to prepare and make available such a translation. However, what sets this case apart is that the Explosives Substances Act is not an Act of the Oireachtas. The Standing Orders of Dail Éireann mandate that the Clerk shall cause to be made an official translation into English of every law enacted by the Oireachtas in Irish, and an official translation into Irish of every law enacted by the Oireachtas in English. The obligations imposed on the Clerk of Dail Éireann accords with the constitutional requirement contained in Article 25.4.4. It provides: "[w]here the President signs the text of a Bill in one only of the official languages, an official translation shall be issued in the other official language."
Indeed, further obligations are placed on the Clerk by virtue of s.7 of the Official Languages Act 2003 which provides that such a transaction must be provided "as soon as may be" following the enactment of the particular legislation. In this case, the Explosive Substances Act was passed by the Westminster Parliament. The fact that it has not been translated is not the result of inertia, to use a word that appears in some of the judgments on this area. Rather, it is clear that a conscious decision was taken not to seek to translate pre-1922 statutes.
36. The question of whether a party to a case had suffered disadvantage by virtue of using Irish in an official context is central to the judgment of Mr. Justice Hardiman in Ó Beolain v. Fahy at p.340:
"[i]n my view the Irish language which is the national language and, at the same time, the first official language of the State cannot (at least in the absence of a law of the sort envisaged by Article 8.3) be excluded from any part of the public discourse of the nation or the official business of the State or any of its emanations. Nor can it be treated less favourably in these contexts than the second official language. Nor can those who are competent and desirous of using it as a means of expression or communication be precluded from or disadvantaged in so doing in any national or official context. [emphasis added]"
37. This approach was placed on a statutory footing with the passing of the Official Languages Act 2003 which compliments Article 8.3 of the Constitution and seeks to facilitate the rights of Irish speakers in their interactions with the State. Indeed, it is important to note at this point that the 2003 Act itself was enacted as a response to the decision in Ó Beolain v. Fahy . The position prior to the 2003 Act can be seen in the decision Mr. Justice Ó hAnnluain in The State (Mac Fhearraigh) v. Mac Gamhnia [1980-1998] T.É.T.S 99 at p.105: "[i]t will be noted that Irish is granted an enhanced status in the Constitution of Ireland over that enjoyed by it in the first Constitution, since it is referred to for the first time as 'the first official language'.
At the same time the Oireachtas is given a wider scope as to according a greater precedence to one language over the other language according to law insofar as it relates to official purposes in any part of the country. Until the Oireachtas makes use of the powers granted to it by the provisions of the Constitution, it must be accepted that Irish is the first official language, and that it is the privilege of the citizen to require that it be used when official business is to be conducted in the State."
Accordingly, the provisions found in s.8 of the 2003 Act entitled "Administration of Justice" bears some consideration.
38. Section 8(1) of the 2003 Act begins with a general provision concerning the right of a person to use either official language in pleadings or any documents required by a Court. It then goes onto to outline the right of a person to be heard in either official language and does so in the following terms;
"(2) Every court has, in any proceedings before it, the duty to ensure that any person appearing in or giving evidence before it may be heard in the official language of his or her choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language.
(3) For the purposes of ensuring that no person is placed at a disadvantage as aforesaid, the court may cause such facilities to be made available, as it considers appropriate, for the simultaneous or consecutive interpretation of proceedings from one official language into the other.
… (6) In choosing to use a particular official language in any proceedings before a court, a person shall not be put by the court or a public body to any inconvenience or expense over and above that which would have been incurred had he or she chosen to use the other official language. [emphasise added]"
These provisions make clear that someone who appears in a case or choses to give evidence in a given case may not be disadvantaged by virtue of their choice of official language. This is a broad provision that respects the language rights of both sides to a case. The consequence being that in ordinary civil matters both sides choose their preferred official language and the Court must facilitate same. Indeed, the Courts are given powers to assist in the facilitation of language rights in regard. This includes, as was the case both in the Special Criminal Court and this Court, the provision of interpretation services. In furtherance of same, efforts will often be made to have a judge with proficiency in Irish hear such cases. Crucially, however, there is a consideration for the public purse in that a Court is not required to do for one official language what it would not to do for other.
39. Another provision of the 2003 Act which requires consideration is s.8(4) which reads:
"(4) Where the State or a public body is a party to civil proceedings before a court—
(a) the State or the public body shall use in the proceedings, the official language chosen by the other party, and
(b) if two or more persons (other than the State or a public body) are party to the proceedings and they fail to choose or agree on the official language to be used in the proceedings, the State or, as appropriate, the public body shall use in the proceedings such official language as appears to it to be reasonable, having regard to the circumstances."
It is important to emphasise that no corresponding provision exists in relation to criminal proceedings. Accordingly, the DPP may carry out its functions in the official language of its own choice. It is not compelled to adopt the preferred official language of the accused person [See Ó Gríofain v Éire & Ors [2009] IEHC 188]. It is, of course, open to the DPP to run a prosecution in Irish if it so wishes and perhaps there are cases where it may be appropriate to do so. Summary cases being prosecuted in or arising out of a Gaeltacht area before a judge comfortable conducting the case in Irish comes to mind. On the other hand there may be complicating factors when trials on indictment are involved where, outside of those which come before the Special Criminal Court, juries may faces difficulties in understanding the evidence in Irish without the aid of an interpreter. Similarly, individual witnesses may not have the proficiency or confidence to be able to give their evidence wholly in Irish. Indeed, such difficulties were highlighted by the judgment of Clarke J. (as he then was) in Ó Maicín v. Éire [2014] 4 IR 477. Accordingly, subject to any further statutory guidance from the Oireachtas, there is no obligation upon the DPP to run their side of the case in Irish. Indeed, this is what arguably distinguishes this case from that of Ó Beolain v. Fahy which was a judicial review. Although the Supreme Court was required to address questions arising from a criminal prosecution, it was primarily a civil matter and so they were required to use the preferred official language of the applicant which was Irish.
40. In the present case, any translation of the Explosive Substances Act, 1883 would have no official status. If the DPP decided to produce a version that had been translated into Irish, it would have no greater status or greater authority than a version prepared by the defence legal team. It would be for the Clerk of Dail Éireann rather than for the DPP to make an official translation available if one was required by law, but in our view, there was no such requirement. Accordingly, the Court rejects the arguments advanced by reference to the failure to interpret or translate the Explosive Substances Act, 1883.
41. So far as the point about the failure to provide a transcript during trial in Irish is concerned, it is necessary to consider in what circumstances and for what purpose a transcript is made up. In the ordinary course of events, the parties to a trial are not provided with a transcript. A transcript is, of course, prepared for the purpose of an appeal if an appeal is lodged. In the majority of trials conducted in this country, no transcript is prepared while the matter is at trial. The Judge will take a note and will rely on this note when charging the jury. Likewise, the lawyers on both sides will normally keep a note. However, exceptionally, in the case of trials in the Central Criminal Court and the Special Criminal Court, an overnight transcript is prepared during the course of the trial. This is for the ease of the Trial Judge and is no doubt a recognition of the fact that trials in those courts are often long and complex. In the case of the Special Criminal Court, the practice has developed whereby copies of the transcripts prepared for the members of the Court are also made available to the respective legal teams on either side. It must be said that there is no entitlement to be provided with such a transcript, it is made available as a concession.
42. In the Court's view, that fact that during the trial, a transcript was available only in the English language did not render the trial unfair or unsatisfactory or infringe any rights of Mr. Billings; he had no right to any transcript during the trial be it in English or in Irish or indeed in any other language. Further, there was no evidence of any disadvantage having been experienced. It is to be noted that in the period of more than two years since the trial, no effort was made to translate the transcript that was prepared into Irish, nor was there any request for access to the DAR so that a record could be made up of what was said in Irish to the Court. That said, the Court would express the view that if, in future, the case has been conducted through Irish or bilingually, and if it is decided to have a transcript prepared, that every reasonable effort should be made to have a transcript that is as comprehensive as possible, that is to say that anything said in the Irish language should be recorded in that language and anything said in the English language should be recorded in that language.
43. That disposes of the two specific complaints raised by the appellant, but insofar as those complaints were set against a background of an assertion that language rights are to be respected and that his rights were not sufficiently respected, the Court would wish to add some brief observations.
44. Firstly, the Constitution is clear and unambiguous about the position of the Irish language. Article 8 of the Constitution states:
"8(1) The Irish language as the national language is the first official language;
(2) The English language is recognised as a second official language."
The equivalent provision of the Constitution of Saorstat Éireann provided, so far as material:
"[t]he National language of the Irish Free State (Saorstat Éireann) is the Irish language, but the English language shall be equally recognised as an official language."
Citizens having business before the Courts are plainly entitled to conduct that business in Irish or in English and should not suffer disadvantage for their choice of language. In the case of witness actions and trials with witnesses giving viva voce evidence, the preferences of witnesses, and indeed, the ability of witnesses to communicate in one or other language, will obviously be a major consideration. In this case, there were two witnesses, two quite significant witnesses, whose vernacular was neither English nor Irish. The experience of the members of the Court would indicate that that is not an unusual occurrence.
45. In the Court's view, the arrangements put in place by the Special Criminal Court were reasonable in the circumstances. Consideration was given to the position of Mr. Billings. He was represented by a team of five lawyers, two senior counsel, two junior counsel and a solicitor, an expanded team which no doubt reflected the additional responsibilities arising from the decision of Mr. Billings to conduct his part of the case in Irish. Similar concessions were extended before this Court. The Court heard submissions from three counsel on behalf of Mr. Billings, the only time that three counsel have been heard on behalf of a single party since the establishment of the Court of Appeal.
46. In this case, the Court was dealing with an appeal where the trial had been conducted bilingually. Accordingly, similar arrangements were put in place before this Court. However, in cases where the trial at first instance had been conducted in Irish alone, then the Court would hope, so far as practicable, to be in a position to facilitate the parties with an appeal conducted wholly in Irish. The Court did so in the case of Ó Cuinn v. An Taoiseach , an unreported case in which judgment was given on 17th February 2017, and was heard before a panel consisting of Kelly P, Hogan and Ní Raifeartaigh JJ. The case involved a native Irish speaker from Donegal who had been charged with driving over the limit on the evening of 29th March 2014. He came before O'Hanlon J. by way of judicial review seeking declaratory relief arising from the fact that the District Court Rules and the statutory instrument relating to the gathering of breath specimens during road-side checks (S.I 541/2011) were not available in Irish. The High Court proceedings were conducted in Irish and the judgment of O'Hanlon J. given in Irish alone. This Court allowed the State's appeal and the matter was remitted to the High Court to be heard before a different judge. While the Court would wish to facilitate parties in those circumstances, it must be said that there might, on occasions, be practical constraints. If the area of law at issue in the appeal was a specialised one, then there might be difficulties constituting a panel with the appropriate expertise and background who also had such command of Irish as was necessary to hear the case without interpretive assistance.
47. When such occasions arise, it would be the intention of the Court to have regard to the observations of MacMenamin J. in his judgment in Ó Maicín v. Éire . There, at p.672, he observed:
"[t]his leads me to make another observation, which is that multilingualism rather than monolingualism is increasingly a feature of our modern world, our Continent and our State. While, at a European level, it is undoubtedly regrettable that minority languages come under threat from dominant languages, such as English, nevertheless, it is also true that many European citizens are fluent in two or three languages, and accordingly, governmental or private business is often conducted simultaneously in more than one language. Crucially, many participants at such meetings may listen to a speaker for the purpose of tuning in to his intonation while also listening intermittently or at low volume to an interpreter to ensure that difficult passages are correctly understood. A fluid interplay between languages characterises such events. Modern interpreters are sophisticated in the timing of their interspersions, their focus inflections and so on. An analogy in Ireland is where interpreters are available for parliamentary proceedings, which are, by their very nature, of fundamental constitutional significance."
48. In summary, the Court has not been persuaded that there was insufficient evidence to ground a conviction on any count and has not been persuaded that the trial was unfair and unsatisfactory or that the rights of Mr. Billings were disrespected to the extent that the convictions should be quashed.
49. The Court will therefore dismiss the appeal.
