Irish Court of Criminal Appeal

22

On 18th May, 2004, the appellant stood trial at the Special Criminal Court charged with membership of an unlawful organisation, contrary to s.21 of the Offences Against the State Act, 1939, as amended by s.2(6) of the Criminal Law Act, 1976. The particulars of the offence charged were that Liam Campbell was, on the 3rd October, 2000, within the State, a member of an unlawful organisation, to wit: an organisation styling itself the Irish Republican Army, otherwise Oglaigh Na hÉireann, otherwise the IRA.

After the appellant had pleaded not guilty, counsel for the Director of Public Prosecutions handed into court by way of formal proof The Offences against the State Act Scheduled Offences Order, (S.R. & O. No. 142 of 1942) and also the Unlawful Organisation (Suppression) Order, 1939 (S.R. & O. No. 162 of1939) by virtue of which it was declared that the organisation styling itself the Irish Republican Army, also the IRA and Oglaigh Na hÉireann, was an unlawful organisation which ought in the public interest to be suppressed. Counsel in addition handed into court a copy of Iris Oifigiuil of 30th May, 1972, recording the decision of the Government to establish the Special Criminal Court.

Thereafter, the court heard brief evidence for the prosecution from Chief Superintendent Michael Finnegan and Detective Garda Hanrahan. No evidence was called on behalf of the appellant.

Chief Superintendent Finnegan gave evidence that he had known the appellant for about 23/24 years and that Liam Campbell was a member of an unlawful organisation styling itself the Irish Republican Army, otherwise the IRA, otherwise Oglaigh Na hÉireann, and that he was a member of that organisation within the State on 3rd October, 2000. He further gave evidence that this opinion or belief was based on confidential information. He gave further evidence of a search carried out at Mr. Campbell’s home on the 3rd October, 2000, and of the arrest of Mr. Campbell on that date. He further gave evidence that nothing found in the course of the search of Mr. Campbell’s home contributed in any way to the formation of his belief or opinion.

Chief Superintendent Finnegan was not cross-examined.

Detective Sergeant William Hanrahan then gave evidence in relation to certain interviews conducted with the appellant subsequent to his arrest when he was brought to Kells Garda Station. He gave evidence that the appellant was specifically advised that he had been arrested under s.30 of the Offences against the State Act, 1939, for membership of the Irish Republican Army and would accordingly be questioned about his membership of that organisation. He further gave evidence that the provision of s.2 of the Offences against the State (Amendment) Act, 1939 – 1998 was read over to the appellant and explained in layman’s terms to him and that a proper caution was administered to him. Detective Sergeant Hanrahan told the court that he explained the caution to Liam Campbell by telling him that if he failed or refused to answer questions under s.2 of the Offences against the State Act, 1939, his failure or refusal to answer material questions could have consequences for him at his trial.

He then gave evidence that the following specific questions were put to the appellant:-

“Our investigations to date satisfied us that you are a member of the Irish Republican Army, otherwise Oglaigh Na hÉireann, otherwise the IRA. Have you anything to say about that?”

He then asked the following question:-

“When did you join the IRA, otherwise Oglaigh Na hÉireann, otherwise Irish Republican Army?”

He also gave evidence of asking the following question:-

“I now wish to remind you that I am investing the reports that you are a leading member of the IRA, otherwise Oglaigh Na hÉireann, otherwise Irish Republican Army.”

The remaining interviews followed precisely the same procedure and the prosecution relied on 6 interviews to provide corroboration for the evidence of Chief Superintendent Finnegan.

Detective Sergeant Hanrahan was not cross-examined or challenged in respect of any of these matters nor was he questioned about the origin, aims, composition or leadership of subversive groups including the IRA, Óglaigh Na hEireann, otherwise the Irish Republican Army or any groups believed to have split away from same . No submissions were made to the court at the conclusion of the prosecution case and, in particular, no rulings were sought about the applicability or otherwise of the 1939 Suppression Order in the case of the appellant.

Having found the appellant guilty as charged, the court then embarked upon the further trial of the appellant in Bill No. 11S/2001 whereunder the appellant stood charged with membership of an unlawful organisation contrary to s.21 of the Offences Against the State Act, 1939, as amended by s.2(6) of the Criminal Law Act, 1976, the particulars whereof being that Liam Campbell was, on the 29th July, 2001, within the State, a member of an unlawful organisation, to wit: an organisation styling itself the Irish Republican Army, Oglaigh Na hÉireann, otherwise the IRA.

The accused pleaded not guilty, whereupon the same formal proofs were, without challenge, tendered to the court, including the Unlawful Organisation (Suppression) Order, 1939. In relation to this charge Chief Superintendent Finnegan gave evidence that on the 29th July, 2001, the appellant was present with a number of other persons in a hotel room at the Neptune Beach Hotel in Bettystown, County Meath. On that occasion, the appellant and three other men were arrested under s.30 of the Offences against the State Act, 1939. A search of the room led to the recovery of a Panther stun gun which was in a green sports bag. He further gave evidence of his belief that Liam Campbell was, within the State, a member of an unlawful organisation on the 29th July, 2001, such belief being based on confidential information and that such belief was independent of Liam Campbell’s presence in the Neptune Hotel or the outcome of any interrogations which took place with him subsequent to his arrest and detention.

Again, Chief Superintendent Finnegan was not cross-examined as to his beliefs and was simply asked to confirm that the bag containing the stun gun was brought into the room by some person other than Liam Campbell.

Detective Garda Gerard Doherty then gave evidence. He stated that a search warrant had been obtained authorising the search of room 202 of the Neptune Hotel in Bettystown and that the said warrant was executed on the afternoon of the 29th July, 2001. He also gave evidence of the arrest of Liam Campbell under s.30 of the Offences against the State Act, 1939, and of bringing Liam Campbell thereafter to Mountjoy Garda Station. He further gave evidence that on the 31st July, 2001, Liam Campbell was released, but was rearrested at North Circular Road on the same date under the provisions of s.4 of the Criminal Law Act, 1997, for the arrestable offence of membership of an unlawful organisation, known as Oglaigh Na hÉireann, otherwise Irish Republican Army, otherwise the IRA. He gave evidence that Liam Campbell was then brought back into Mountjoy Garda Station and was later brought to the precincts of the Special Criminal Court where he was handed a copy of the charges that were to be preferred against him.

This witness was not cross-examined, nor was his evidence challenged in any way.

The trial resumed on the following day when Detective Sergeant Rory Corcoran gave evidence of certain interviews conducted with Liam Campbell subsequent to his arrest. Specifically, he gave evidence that Liam Campbell denied being a member of an unlawful organisation.

Evidence was given that the provisions of s.2 of the Offences against the State (Amendment) Act, 1998, were read over to Liam Campbell and the text thereof explained in ordinary layman’s terms to him. At no stage did Liam Campbell indicate that he did not understand the caution.

Detective Sergeant Corcoran gave evidence of the following questions put to Liam Campbell and his replies thereto:-

“Q. I am asking you once again are you a member of the Irish Republican Army, otherwise known as the IRA, otherwise Oglaigh Na hÉireann?

Q. This is a material question and your reply or failure to reply will be put in evidence as support evidence of my Chief Superintendent that you are a member of the Irish Republican Army, otherwise known as the IRA, otherwise Oglaigh Na hÉireann. Will you make a reply now confirming or denying that you are a member of the IRA, otherwise known as the Irish Republican Army, otherwise Oglaigh Na hÉireann?
A. I am not a member.”

At a later point the following question and answer occurred:-
“Q. I want to remind you that these are material questions regarding your alleged membership of an unlawful organisation, namely the IRA, otherwise the Irish Republican Army, otherwise Oglaigh Na hÉireann, and your failure or refusal to answer any of these questions or if you give a false or misleading answer to any of these questions, a judge may consider your refusal as amounting to corroboration or supporting evidence of any other evidence offered against you at your trial, do you understand what I have told you?

Evidence was also given that the appellant had a telephone conversation with his solicitor. There was also evidence that Liam Campbell declined to sign various interview notes.

This witness was not cross-examined, nor was his evidence challenged in any way. The prosecution case having closed, no evidence was led by or on behalf of the accused and again no ruling was sought as to the applicability or otherwise of the Suppression Order in the case of the appellant.

In convicting the appellant, the court noted that the defence had not challenged any of the evidence adduced and had made no submissions relating thereto or in contradiction of the same.

Evidence was then given that Liam Campbell had been in custody since the 29th July, 2001, when he was arrested in respect of the second charge. Evidence was given that the charge in relation to membership on the 29th July, 2001, took place while he was on bail on the first membership charge, such bail having been granted on the 21st December, 2000.

In the course of a plea in mitigation, Mr Michael O’Higgins, senior counsel on behalf of the appellant, reminded the court of different sentencing options which he suggested were available to the court depending on the particular manner in which a person convicted on a membership charge had met the case. He instanced a case where, on a plea of guilty to IRA membership, a particular accused received a sentence of 3 and a half years. In another case, which was “fully contested” a 4 year sentence had been imposed. In other “fully contested” cases sentences of 5 years had been imposed. Counsel then referred to “the fast track method” which his client had followed in the instant case whereby, without pleading guilty, the accused had not challenged the evidence led for the prosecution and suggested that this approach, which was described as the “middle ground of cases” warranted a measure of leniency. Counsel for the appellant specifically pointed out:-

“I would ask your Lordship to take all of those factors into account when imposing sentence and to recognise the manner in which he has met the cases, and to recognise particularly yesterday he facilitated in as much as he possibly could to have a second case dealt with simultaneously with the first and that has vacated a trial date later this year… which would free up, very valuable court time, my Lord.”

“The court takes into account the manner in which this court has dealt with other accused who adopt a similar approach to the charge of membership of an illegal organisation.”

The court specifically took into consideration the manner in which it dealt with other accused who adopted a similar approach to the charge of membership of an illegal organisation and suspended the final 18 months of the sentence imposed on the second count and gave credit to the accused for the time already spent in custody, directing that the sentence date from 1st May, 2001. The appellant thus received a significantly lesser sentence than might otherwise have been imposed if the two cases had been fully contested.

At the conclusion of the sentencing hearing, counsel on behalf of the accused stated:-

“I have no instructions in the matter, my Lords, but rather than reconvene the court I will make the usual application for leave to appeal against conviction and sentence.”

“The court erred in holding that the Real IRA was a prescribed (sic) organisation within the terms of a suppression Order published pursuant to s.19 of the Offences against the State Act, 1939.”

Mr. Birmingham, senior counsel on behalf of the Director of Public Prosecutions, argued that to permit the applicant to open an issue which was not contested at the trial would be to permit the appellant to mislead the trial court in a charade designed solely for the purpose of avoiding the imposition of an appropriate sentence. Without mincing words, it is contended in the written submission filed on behalf of the Director of Public Prosecutions that to entertain this appeal would, in effect, be an abuse of the process of appeal. Having regard to the benefit obtained by the applicant in relation to sentence by virtue of the approach adopted by him at the trial, the failure to raise at trial the issue which is now sought to be raised here has to be seen as a deliberate and considered approach taken by the appellant with the benefit of legal advice. No explanation for the failure to raise the issue at trial before the Special Criminal Court had been addressed in the appellant’s submissions.

Furthermore, counsel for the Director of Public Prosecutions submitted, there was absolutely no evidential basis for the ground of appeal now sought to be argued. Contrary to what was asserted in the ground of appeal, the Special Criminal Court had not held that the “Real IRA” was a proscribed organisation and no evidence had been led or adduced in cross-examination of prosecution witnesses to warrant the court making any such finding. There had been no such charge and no such conviction. Mr. Birmingham submitted that the grounds relied upon by the appellant in making this application are entirely unsupported by any evidence whatsoever. In both cases the prosecution had relied upon the Suppression Order and the opinion evidence of a Chief Superintendent that the appellant was, within the State, a member of an unlawful organisation styling itself the Irish Republican Army, otherwise the IRA, otherwise Oglaigh Na hÉireann. Chief Superintendent Finnegan was not cross-examined on this evidence and his opinion was not challenged or tested in any way. That uncontradicted and unchallenged evidence was accepted by the trial court.

Finally, counsel for the prosecution submitted that the particular issue had already been decided by this Court in December, 2003 in an appeal against conviction in a prior trial of the appellant in relation to the same charge of IRA membership on 3 October, 2000.

For these various reasons, Mr. Birmingham submitted that this court should not proceed to deal with what the appellant characterised as the “substantive issue”, namely, whether the “Real IRA” was caught by the terms of the Suppression Order of 1939.

In response counsel for the appellant admitted that his appeal would have to be dismissed because the point he sought to argue had already been determined by the Court of Criminal Appeal in December, 2003, but sought nonetheless a ruling or decision from this court on the point so as to provide a vehicle or conduit for a reference to the Supreme Court on a point of law under S. 29 of the Courts of Justice Act, 1924. To properly understand the submissions of counsel for the appellant, it is necessary now to trace the history of the previous proceedings in this matter.


The Previous Proceedings

The appellant was convicted in the Special Criminal Court on the 23rd October, 2001, of the offence of membership of the IRA on the 3rd October, 2000, contrary to s.21 of the Offences against the State Act, 1939, as amended by s.2(6) of the Criminal Law Act, 1976, and was sentenced to a term of 5 years imprisonment, the last 3 months being suspended. This is the first of the offences with which this Court is now concerned following the events described hereunder.

In the course of that first trial, the accused had given evidence and was cross-examined. The Court of Criminal Appeal held that certain aspects of the cross-examination should not have been permitted and quashed the conviction. In the exercise of its jurisdiction under s.5(1)(b) of the Courts of Justice Act, 1928, the court then directed a retrial.

One of the grounds of appeal which had been before the Court of Criminal Appeal was the following:-

“The court erred in holding that the ‘Real IRA’ was a proscribed organisation within the terms of the suppression Order published pursuant to s.19 of the Offences Against the State Act, 1939.”

“The organisation styling itself the Irish Republican Army (also the I.R.A. and Oglaigh Na hÉireann) is an unlawful organisation and ought, in the public interest, to be suppressed.”

The accused’s legal advisers (who were the same as in the present case) argued that in reality the applicant was accused of membership of the dissident republican group the Real IRA. This group was said to be distinct from other IRA groups such as the “Official IRA”, the “Provisional IRA” and the “Continuity IRA” both in its membership, aims and tactics. It was submitted that a suppression order made in 1939 based on the existence of “the IRA” in that year could not be said to relate to an organisation that came into existence nearly 60 years after order was made.

In the course of the appeal reliance was placed on evidence elicited in cross-examination from Chief Superintendent Finnegan to the effect that Liam Campbell was a member of the “Real IRA”. Further reliance was placed on evidence given by Detective Superintendent Maguire dealing with the history of the “Official IRA,” the “Provisional IRA” and the “Real IRA” and it was argued that it was clear from the evidence of the garda witnesses that the “Real IRA” is a separate organisation which was not in existence in 1939 and therefore could not be rendered unlawful by a suppression order issued in 1939.

The Special Criminal Court rejected this submission in a ruling on the 10th October, 2001, stating that it was:-

“…satisfied that the labels such as ‘official’, ‘provisional’, continuity’ or ‘Real’ are irrelevant in considering whether a particular person or group of persons are within the ambit of the Suppression Order i.e. that he or they belong to an organisation which styles itself the Irish Republican Army or the IRA or Óglaigh Na hÉireann. The so called ‘Real IRA’ are on all fours with the original IRA as it existed in 1939 in terms of its philosophy, objectives and structure and members of that group are within the ambit of the Suppression Order of 1939.”

“It is, of course, true that there has been violent disagreement and at times internecine struggle between the groups of persons involved over the years. Nevertheless, as stated in evidence by Detective Superintendent Maguire the group of which the applicant was convicted of being a member has ‘the structure, style and philosophy exactly the same as all other organisations up to now representing themselves as the Irish Republican Army or Óglaigh Na hÉireann.’
Bearing these considerations in mind this Court is of the view that the Special Criminal Court was correct in its ruling, adopting the decision of Kenny J. in Ó Bradaigh v Fanning (unreported, 25th November, 1972, High Court) that:-
‘… the labels such as ‘official’, ‘provisional’, continuity’ or ‘real’ are irrelevant in considering whether a particular person or group of persons are within the ambit of the Suppression Order i.e. that he or they belong to an organisation which styles itself the Republican Army or the IRA or Óglaigh Na hÉireann.
The Court does not find it necessary to consider the argument advanced on behalf of the prosecution that even in the absence of any Suppression Order the IRA would be an illegal organisation within the terms of s.18 of the Offences against the State Act, 1939.

Notwithstanding the fact that the Court of Criminal Appeal directed a retrial, the court acceded to a request made on behalf of the appellant for a certificate pursuant to s.29 of the Courts of Justice Act, 1924, certifying that its decision of 19th December, 2003, involved a point of law of exceptional public importance being the following:-

“Does the Unlawful Organisation (Suppression) Order (S.R. & O No. 162 of 1939) issued in 1939, pursuant to s.19 of the Offences against the State Act, 1939, have application to an organisation which came into existence in or about the year 1997?”

However, the Supreme Court in The People (D.P.P.) v Campbell [2004] 2 ILRM 412 held that it had no jurisdiction to entertain an appeal from a determination of the Court of Criminal Appeal which allows an appeal.

In the course of his judgment, Keane C.J. stated at pp.417 to 418:-

“The legal advisors of the applicant were undoubtedly confronted with a dilemma in this case; had they confined themselves in the Court of Criminal Appeal to arguing the ground which is now the subject of the certified point and failed to persuade this court that the Court of Criminal Appeal were wrong in the conclusion they reached, they would have been deprived of the retrial to which the Court of Criminal Appeal held them entitled on one of the other grounds actually argued. It is understandable that they should have sought in this court to argue the certified point while maintaining at the same time the applicant’s right to a retrial, whether or not they succeeded in the appeal to this court. One can indeed have some sympathy with the position of an applicant who faces a retrial in the knowledge that the Court of Criminal Appeal have taken the view that the law is sufficiently uncertain to require an authoritative decision by this court without the uncertainty being resolved at that level. Those considerations, however, cannot justify the court in attributing to the legislature an intention to confer a right of appeal by s.29 which is plainly outside the ambit of the section as enacted.”

“This result is unfortunate and undesirable. Mr. Michael O’Higgins S.C. rightly emphasised the burden that it places on the applicant. The judgment of the Court of Criminal Appeal decided the certified point against the applicant. The Special Criminal Court at the retrial is likely to feel bound by that decision. In the event of a conviction, there will have to be a further appeal to the Court of Criminal Appeal. It may then be possible to have the matter, clearly a matter of exceptional public importance, certified anew to this court.
These and other limitations of the section could readily be remedied by amending legislation.”

The written submissions filed on behalf of the appellant gave this Court absolutely no inkling of these background matters, nor did it provide any explanation as to why the legal point now sought to be raised was not raised at the court of trial. The submission focuses entirely on the suggested incapability of the Suppression Order of 1939 to suppress new and emerging illegal groupings which addressed by the vocabulary of the Act of 1939.

Counsel for the appellant in responding to the submissions made by counsel for the respondent argued that it was not open to the appellant to raise this point before the Special Criminal Court during the present case, given that it had been determined by the Court of Criminal Appeal in its judgment on 19th December, 2003. The point was being raised now, counsel for the appellant admitted, so as to permit the making of an application to this Court following its determination of the appeal (and assuming it took the same view as the court had done in December, 2003) for a s.29 certificate under the Courts of Justice Act, 1924. This course had not been open to the appellant at an earlier stage by virtue of the decision of the Court of Criminal Appeal in December, 2003, to direct a retrial.

He disputed counsel for the respondent’s assertion that the conduct of the present cases before the Special Criminal Court was tantamount to a plea of guilty. In an adversarial system he argued that it is open to an accused in the course of a trial to make certain concessions which would save court time as a result of which the court could quite properly decide to impose a somewhat lesser sentence. That was not to abandon the contest or to plead guilty. Without identifying the particular case, he submitted that the Special Criminal Court had actually acquitted an accused person some months ago where what he characterised as the “fas- track method” of not challenging prosecution witnesses had been adopted. Counsel for the appellant submitted that the adoption of such a course by an accused person could not tie the hands of the accused’s advisers in such a way that a subsequent appeal against conviction could not be brought.

Furthermore, he held that there was evidence upon which this Court could act, because at the sentencing hearing Detective Chief Superintendent Maguire had stated that Liam Campbell belonged to the IRA and “the group that he is allied with is sometimes referred to in the media as the Real IRA”. The same officer had further confirmed that at the time of the offences in respect of which he had been convicted Liam Campbell had been part of that group, a group which broke away from the Provisional IRA in 1997 because it didn’t agree with the Peace Process.

Counsel for the appellant submitted that the court could have regard to this evidence to properly determine the ground of appeal in the present proceedings. In conclusion he asserted, though without identifying the case or tendering a report of it or indeed without even identifying the relevant statutory provisions, that the point he was seeking to argue had been taken successfully in a case in Northern Ireland in recent months.


Decision

The Court of Criminal Appeal is an appellate court which was established under s. 3 of the Courts (Establishment and Constitution) Act, 1961. Section 12 of the Courts (Supplemental Provisions) Act, 1961 provides:-

“(1) The Court of Criminal Appeal shall be a superior court of record and shall, for the purposes of this Act and subject to the enactments applied by s. 48 of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it.
(2) There shall be vested in the Court of Criminal Appeal all jurisdiction which, by virtue of any enactment which is applied by s. 48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing Court of Criminal Appeal.”

S. 44 of the Offences against the State Act, 1939 provides:-

“(1) A person convicted by a Special Criminal Court of any offence or sentenced by a Special Criminal Court to suffer any punishment may appeal to the Court of Criminal Appeal from such conviction or sentence if, but only if, either he obtains from that Special Criminal Court a certificate that the case is a fit case for appeal or, where such Special Criminal Court refuses to grant such certificate, the Court of Criminal Appeal on appeal from such refusal grants to such person leave to appeal under this section.”

“Leave to appeal shall be granted by the Court of Criminal Appeal in cases where the court is of opinion that a question of law is involved, or where the trial appears to the court to have been unsatisfactory, or there appears to the court to be any other sufficient ground of appeal, and the court shall have power to make all consequential orders it may think fit, including an order admitting the appellant to bail pending the determination of his appeal”

“The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court.”

“(3) The Court, on the hearing of an appeal or, as the case may be, of an application for leave to appeal, against a conviction…may…(e) generally make such order as may be necessary for the purpose of doing justice in the case before the Court”

“(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal (‘the court’) on

with power to the court to hear new or additional evidence, and to refer any matter for report by the said judge”

As noted by Denham J in The People (DPP) v Cunningham [2002) 2 IR 712 at 721:-

“The concept of limited jurisdiction is used to describe the fact that the jurisdiction of the Court of Criminal Appeal is limited to that set out in statutes, that the jurisdiction is derived solely from statutes, in contrast for example, to the inherent jurisdiction of the Supreme Court”

The function of the Court of Criminal Appeal was described by O’Higgins CJ in The People v. Madden [1977] I.R. 336 in the following terms (at p.340):-

“ In the appeals now before this Court, we have transcripts of the rulings of the Special Criminal Court made in the course, and at the end, of the trial on questions of law and findings of facts in relation to the admissibility of evidence, the sufficiency or cogency of the evidence, and the reasons for the rulings and verdicts given. Therefore, subject to grounds of appeal, it would seem to be the function of this Court to consider the conduct of the trial as disclosed in the stenographer’s report to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness, to review so far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the court of trial can properly be supported by the evidence; but otherwise to adopt all findings of fact, subject to the admonitions in the passages cited above”

Firstly, the ground of appeal now sought to be agitated was not raised, argued or ruled upon in the court below. If it was intended to run with the point, the necessary groundwork had first to be done in the court of first instance. Given that counsel had no difficulty in eliciting information relevant to the ground of appeal through the cross-examination of garda witnesses in the previous proceedings, it may safely be said that no difficulty lay in the way of the defence doing precisely that in the instant cases. The Court is driven to conclude that the failure to do so was not due to any error or omission, not least because the same legal advisers were on record for him in the previous proceedings which had but recently concluded. They are advisers of considerable experience and acumen. The Court must conclude that the decision not to contest fully the State’s case or adduce evidence which might ground the present appeal was not an error or oversight but rather a strategic or tactical decision made by the appellant’s advisers who evidently decided that they might obtain a more lenient sentence for the appellant in the court of trial and perhaps thereafter succeed in persuading this Court that they should be allowed raise a legal argument that was never made in the court below. Accordingly, this Court is satisfied that this case in no way comes within the parameters of ‘oversight or error’ on the part of legal advisers which has, in one case at least, persuaded the Court of Criminal Appeal to allow argument on a point in the course of appeal which had not been made at trial (The People v Noonan [1998] 2 I.R. 439)

There is the clearest of authority which suggests that the Court of Criminal Appeal should not allow points not taken at trial to be argued on appeal. In The People (DPP) v Moloney (Ex Tempore, Unreported, Court of Criminal Appeal, 2 March, 1992) O’Flaherty, J stated at p.3 of the judgment:-

“We would wish to reiterate the jurisprudence of the Court which has been in place for many years that there is an obligation on counsel on both sides, the prosecution and the defence, to bring to the attention of the trial judge any inadequacies they perceive in his direction to the jury. If an appeal is brought before this Court on a point that has not been canvassed at trial this Court will regard any person making such a new point as having an obligation to explain why it is sought to be made on appeal when not made at the trial. That is not to say but that if the essential justice of the case calls for its intervention we have an obligation so to intervene”

We would respectfully concur with what is said in this passage [i.e., in Moloney]. The reason for this rule or statement of principle is not at all a technical one, or one designed to assist in the orderly conduct of trials and appeals. It is to ensure a proper relationship, based in reality, between the conduct of an appeal and the task on which the Court is engaged, which is to say whether or not the trial was a safe or satisfactory one.”

The only unfairness or injustice that could now arise would lie in allowing this ground of appeal to be argued. As was noted by the Special Criminal Court in passing sentence, it felt free to treat the case effectively as one where a plea of guilty had been entered as a result of the approach adopted by the appellant. As a result he received a far lighter sentence than might otherwise have been the case had he fully contested every piece of evidence in the case, not least because the second offence was committed whilst on bail. The Court notes without surprise that no appeal against severity of sentence has been brought in the case. To turn the case on its head now and open an issue which was ignored or by-passed at trial is not a course this Court is disposed to adopt. The Court will therefore dismiss the application for leave to appeal in each of these cases.