Irish Court of Criminal Appeal

Judgment Title: DPP -v- Don Bullman

Neutral Citation: [2009] IECCA 84


Court of Criminal Appeal Record Number: 70/07

Date of Delivery: 28 July 2009

Court: Court of Criminal Appeal

COURT OF CRIMINAL APPEAL

RECORD NO. 070/2007


Finnegan J.
Budd J.
Hanna J.



BETWEEN


THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

and


DON BULLMAN


APPLICANT


Judgment of the Court delivered on the 28th day of July 2009 by Finnegan J.


The applicant was charged before the Special Criminal Court on a single count of membership of an unlawful organisation, contrary to section 21 of the Offences against the State Act, 1939, as amended by section 2 of the Criminal Law Act 1976. He was found guilty and sentenced to four years imprisonment. He seeks leave to appeal against his conviction.

The circumstances leading to the arrest and charge of the applicant were as follows. A Garda surveillance operation took place in the vicinity of Heuston Station, Dublin, on the 16th February 2005. At approximately 3 p.m. the applicant was standing at the front of Heuston Station carrying a small blue rucksack. A black jeep pulled up and the applicant got into the rear of the same which then drove towards the car park to the rear of the station. There were two other males in the jeep. Gardai followed the jeep. At approximately 3.10 p.m. Detective Sergeant Corcoran and Detective Garda Higgins approached the vehicle and identified themselves. They spoke with the driver and both front seat passengers. Detective Sergeant Corcoran spoke to the applicant: as he could not hear what the applicant was saying he opened the rear door to speak to him. There was a blue holdall bag with a red box protruding from it. The box was subsequently found to contain a sum of sterling £94,250. Detective Sergeant Corcoran then returned to his own car to make phone calls, checking on details in relation to the vehicle and the identity of the persons in it. He then returned to the jeep and arrested the occupants.

At some point during his dealings with the applicant, the applicant asked Detective Sergeant Corcoran if he could leave the vehicle for a cigarette. Detective Sergeant Corcoran told the applicant that he would prefer if he stayed seated.

Prior to the surveillance operation the Gardai were briefed that members of the IRA were to have a meeting at Heuston Station that afternoon, that one of the persons to be present was the applicant and that the meeting was to facilitate the transfer of money taken in the Northern Bank robbery of the previous December and that the money was concealed in a Daz washing powder box.

Grounds of Appeal
On the application eight grounds of appeal were relied upon as follows:-

1. The learned trial judges erred in law in ruling that the applicant had not been unlawfully detained at Heuston Station prior to his arrest at all.

2. The learned trial judges erred in law in ruling that the applicant’s arrest and/detention at Heuston Station was lawful.

3. The learned trial judges erred in law in ruling that there had not been a breach of the applicant’s right to silence guaranteed under either the Constitution and/or in violation of the European Convention on Human Rights having regard to the manner in which section 2 of the Offences against the State (Amendment) Act 1998 was implemented.

4. The learned trial judges erred in ruling that the answers given by the applicant in response to questions asked of him entitled them to draw any adverse inferences or inferences of such nature as would entitle a court to convict him of the charge preferred against him.

5. The learned trial judges erred in drawing inferences consistent with or probative of guilt in respect of answers to questions concerning the activities of the applicant at Heuston Station when there was no admissible evidence before the court to prove that the said activities amounted to crimes or activities committed by a prescribed organisation.

6. The learned trial judges erred in relying upon the belief evidence of an Assistant Commissioner in the absence of the existence or application of any or any appropriate independent judicial mechanism to scrutinise the basis of the privilege claimed over the material relied upon to ground the opinion.

7. The learned trial judges erred in relying upon the belief evidence of the Assistant Commissioner because such evidence was based on privilege, was in violation of the right to cross-examine a witness and/or the duty of disclosure and/or the principle of equality of arms and/or the right to a fair trial as guaranteed under the Constitution or the European Convention on Human Rights.

8. The learned trial judges erred in relying on or drawing an adverse inference from the evidence of the applicant’s associations with individuals alleged to be involved in the IRA.
It is proposed to deal with each of these grounds in turn. However it will be convenient to deal with Grounds 1 and 2 and Grounds 6 and 7 together.

The role of an appellate court
The Court of Criminal Appeal was established by the Courts (Establishment and Constitution) Act 1961 section 5. The Courts of Justice Act 1924 provides that where a certificate or leave to appeal is granted it shall be heard and determined by the Court of Criminal Appeal on a record of the proceedings at the trial and on a transcript of the same verified by the trial judge but with power to hear new or additional evidence which power is not relevant in this case. Thus the court is an appellate court, and like the Supreme Court, does not rehear oral evidence but rather arguments based upon the findings of fact, including arguments that the findings are unsupported by evidence, itself a question of law. The role of the court accordingly is analogous to that of the Supreme Court. The role of the Supreme Court on the hearing of appeals was dealt with in Hay v O’Grady [1992] I.R. 210 by McCarthy J as follows:-

“The role of the court, in my view, may be stated as follows:-
“1. The appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge are supported by credible evidence, this court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact (see the judgment of Holmes L.J. in ‘The Gairloch’, Aberdeen Green Line Steamship Co. v Macken [1899] 2 I.R. 1 cited by O’Higgins J. in The People (Director of Public Prosecutions) v Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and neither on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual involved was erroneous, the order will be varied accordingly.
5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inference to be drawn and the conclusion that follows.”
These principles apply to the Court of Criminal Appeal subject however to the different standard of proof and the presumptions in favour of an accused person which apply in criminal trials.


1. The learned trial judges erred in law in ruling that the applicant had not been unlawfully detained at Heuston Station prior to his arrest at all.


2. The learned trial judges erred in law in ruling that the applicant’s arrest and detention at Heuston Station was lawful.

The evidence before the court was as follows. In the course of a surveillance operation and relying on information the Gardai were at Heuston Station, Dublin, on the 16th February 2005. At approximately 3 p.m. the applicant was seen by Detective Sergeant Ciaran Hoey standing at the front of Heuston Station carrying a small blue rucksack. A black jeep pulled up and the applicant got into the rear of the same which then drove towards the rear of the station. There were two other males in the jeep. Detective Sergeant Corcoran and Detective Garda Higgins went to the rear of the station at approximately 3.10 p.m. They approached the jeep, identified themselves as members of An Garda Siochána and produced their identification.

Detective Sergeant Corcoran gave evidence that he approached the driver who gave his name as Christopher McElhinney. He spoke to the front seat passenger who gave his name as Conor McLoughlin. He attempted to speak to the rear seat passenger but could not hear his reply so he went to the rear driver’s side door and opened it to speak to him. He asked the rear seat passenger his name and some further questions and then closed the door. He saw a blue rucksack with what transpired to be a Daz box, which was later found to contain currency, sticking out. The applicant denied that the bag was his and said that it contained toys. Detective Sergeant Hoey had given evidence that he saw the blue rucksack in the jeep and identified it as the one he saw in the applicant’s possession earlier outside Heuston Station. Detective Sergeant Corcoran made enquiries in relation to the passengers and in relation to the vehicle to satisfy himself as to the identity of the driver and passengers and ownership of the vehicle. He contacted Command Control in Harcourt Square from his car to carry out a check with the PSNI in relation to the jeep. He spoke on the phone to the person who sold the jeep to Christopher McElhinney: he did this at a phone number which had been given to him by Christopher McElhinney. Mr McElhinney had entered that phone number into his own phone and had given the phone to the witness to make the call. At approximately 3.25 p.m. the applicant was taken from the jeep and cautioned and arrested under section 30 of the Offences against the State Acts 1939-1998 for membership of an unlawful organisation, the IRA.

Detective Sergeant Corcoran was cross-examined. While the witness was making his enquiries Detective Garda Higgins remained at the jeep. The witness did not hear any conversation which took place between Detective Garda Higgins and the occupants. The time that elapsed between approaching the car and arrest being effected was ten minutes.

Detective Garda Corcoran was recalled on day 3 and took the court through CCTV evidence of events at Heuston Station in the vicinity of the jeep. In cross-examination he said that at one point before the arrest the applicant asked if he could get out for a cigarette because the ignition was turned off and he could not lower the window. His evidence was that he replied:-
“No, I would prefer if you stayed seated in the back”.

On day 4 of the trial a submission was made on behalf of the applicant that he had been detained for a period of ten or eleven minutes without being arrested and was not permitted to exit the vehicle for a smoke. That period of time was used by the Gardai to collate information. All that followed that detention is linked to it. No statutory power was invoked.

For the respondent it was submitted to the Special Criminal Court that the period which elapsed before arrest was one of nine minutes during which two members of the Gardai engaged in conversation with the occupants of the jeep. The high water mark of the objection was that a request was made to be allowed leave the car for a smoke and Detective Garda Corcoran replying that he would prefer if this were not done. During this period the Gardai were engaged in conversation with the occupants of the car and were establishing the identities of the occupants and the ownership of the jeep. It was submitted that it is appropriate for a member of An Garda Siochána to engage a person in conversation while investigating a matter and that the necessity for a caution arises only when a reasonable suspicion has been established. As soon as a reasonable suspicion had been established a caution under section 30 of the Offences against the State Acts 1939-1998 was given. The circumstances disclosed in evidence did not amount to a detention.

The finding of the Special Criminal court was as follows:-
“The uncontroverted evidence is, inter alia, to the effect that while he had very specific information relating to who and what was to be found, Detective Sergeant Corcoran sought to verify this before being satisfied on the identity of the occupants of the vehicle. We find as a matter of fact that the accused was not detained before his arrest. He was at most discouraged from leaving the car or the vehicle for a very short period but has made no allegation in evidence of having been prevented from doing so. By reason of the foregoing we reject the primary application.”

While the applicant gave evidence that he asked Detective Sergeant Corcoran if he could stand outside the jeep and smoke and was told that he could not, the submission was not repeated.

This court is satisfied that the finding made by the Special Criminal Court was one which they were entitled to make on the evidence before them and that this court should not interfere with that finding.

The applicant fails on these grounds.


3. The learned trial judges erred in law in ruling that there had not been a breach of the applicant’s right to silence guaranteed under either the Constitution and/or in violation of the European Convention on Human Rights having regard to the manner in which section 2 of the offences against the State Act 1998 was implemented.


On behalf of the applicant it is submitted that in the absence of legislation to the contrary there is a constitutional right to silence. In The People (Director of Public Prosecutions) v Finnerty [1999] 4 I.R. 364 at 380 Keane J. said:-

“It follows that the right of suspects in custody to remain silent, recognised by the common law, is also a constitutional right and the provisions of the Act of 1984, must be construed accordingly. Absent any express statutory provisions entitling a court or jury to draw inferences from such silence, the conclusion follows inevitably that the right is left unaffected by the (Criminal Justice) Act of 1984, save in cases coming within sections 18 and 19, and must be upheld by the courts.”
However the constitutional right is not absolute: it may be abridged by legislation for, and proportionate to, the objects to be achieved by that legislation.

The applicant was interviewed on seven occasions while detained. The first six interviews commenced with a caution pursuant to section 30 of the Offences against the State Acts 1939-1998 but that caution was almost immediately withdrawn and the applicant was questioned pursuant to section 2 of the Offences against the State (Amendment) Act 1998 which abridges the constitutional right.

Reliance is also placed on Murray v The United Kingdom [1996] 23 E.H. R.R. 29 where the right to silence was considered in relation to Article 6.1 and 6.2 of the Convention. However it appears from the judgment of the European Court of Human Rights in that case that the Convention right to silence is not unqualified. Where there is other evidence and a prima facie case is presented to the court certain conclusions may always be drawn from the failure of an accused to rebut the evidence against him. In that case it was held, as is the position in this jurisdiction, that the trial judge may only draw such inferences and such degree of inferences, as may be proper. There was in any event, it was held, a formidable case against the applicant and the adverse inferences drawn against him as a result were a formal expression of the inevitable doubt that no innocent explanation for conduct may exist where an accused, against whom considerable suspicion already lies, fails to offer any innocent explanation. In the present case there was available to the court evidence of belief of a senior police officer. The evidence of belief was supported by other evidence. Garda Gerry McCabe was killed by the IRA. Immediately preceding his arrest the applicant had attended a catering conference and had signed, or been signed in, the name of Gerry McCabe with an address at the Garda Club as a “joke”. He carried a badge issued at the conference in the name of Gerry McCabe. While the court so found as a fact and it would have been open to the court to draw an adverse inference from this it did not do so. In relation to the Daz box containing currency the court accepted, as it was entitled to, the Garda evidence that it was in the applicant’s holdall and yet throughout the section 2 interviews the applicant denied any knowledge of the same. There was evidence of text messages found on the applicant’s phone passing in the days immediately preceding his arrest which required explanation, as read in their ordinary sense, the texts related to currency transactions. The transcript of the section 2 interviews contained the following passages:-

Q. Did you send a text to Conor McLoughlin’s phone on the morning of your arrest?
A I can’t remember.

Q. Don I want to inform you that the text message that you sent was as follows:-
“Don’t box that today. All I have is a backpack so I put it in that.”
Is that right? Can you explain this message to us?

A. No.

Q. Do you recall making that text message?

A. No.

Q. We are specifically asking you for an explanation for that text message.

A. I can’t remember.

Q. What is your explanation for this text message?

A. I don’t know. I can’t remember.

Q. Have you any innocent explanation for this text message?

A. I can’t remember it.

He was questioned about a text message received from Conor McLoughlin’s phone as follows:-
Q. Do you remember receiving a text message from Conor McLoughlin?

A. No.

Q. The message you received, you accessed and stored on your phone reads as follows:-
“Get me a rate for one hundred” Make sure it is a good rate. This guy is consistent. If it is not good he will walk away.”
Have you any comment on this?

A. No.

Q. What does the message mean by get me a rate for one hundred?

A. I don’t know.

Q. I ask you again do you remember receiving that text message?

A. No.
There follows a further passage of questioning as follows:-
Q. On examining your phone a text message was sent to Harry at 087 7667911, the text is as follows:-
“Fuck, my head was wrecked over that, tell them learn how to count.”
Can you tell us who Harry is?

A. Don’t know.

Q. What were they to learn how to count?

A. Can’t remember.

Q. Was it the money that was found in your possession yesterday?

A. I don’t know. I had no money found in my possession yesterday.

Finally:-
Q. The text about the rate for one hundred. Does this mean get me a rate for one hundred thousand Northern sterling bank notes?

A. Have nothing got to do with that.

Q. Is it an exchange rate?

A. As I have said I have nothing got to do with that.

Q. Also contained in the text as we have outlined is a reference to a person who is referred to as “this guy is consistent”, who is this person?

A. Haven’t a clue.

Q. The fact that he is referred to as consistent indicates that you have used him in the past, is this a fact?

A. Haven’t a clue, don’t know what that’s all about.

Q. The text also says “if its no good, he will walk away”, What does this mean?
A. Haven’t a clue.
The applicant’s account was, in summary, that he could not remember the texts, to whom they were sent or from whom they were received or indeed what they meant. The phones between which the text traffic took place were both registered in false names. There was evidence from which the court was entitled to hold that the applicant was familiar with a number of persons yet in interview pursuant to section 2 he answered that he could not remember them. The court, in a general statement, found him to have given false answers in the section 2 interviews and the foregoing instance some of the material which was available to the court from which to draw inferences pursuant to section 2.

In the foregoing circumstances the court is satisfied that under section 2 and indeed the jurisprudence of the European Court of Human Rights the Special Criminal Court was entitled to draw inferences from the failure to answer questions posed to him pursuant to section 2 of the Offences against The State (Amendment) Act 1998. This court is satisfied that the Special Criminal Court having heard evidence and having viewed the video recordings of the section 2 interviews and heard the applicant give evidence was entitled to draw the inferences which it in fact drew and accordingly this court should not interfere in relation to the same.

The applicant fails on this ground.

4. The learned trial judges erred in ruling that the answers given by the applicant in response to questions asked of him entitled them to draw any adverse inferences or inferences of such nature as would entitle a court to convict him of the charge preferred against him.

The questions put to the applicant were mostly answered but the court determined that a number of the answers were not truthful and so amounted to a failure to answer material questions. The court was entitled to draw inferences from such answers. For the applicant it is submitted that as the Assistant Commissioner’s evidence of belief may have been based on matters put to the applicant in section 2 interviews they could not corroborate the Assistant Commissioner’s belief.

Assistant Commissioner Michael McAndrew gave evidence that it was his belief that on the 16th February 2005 the applicant was a member of an unlawful organisation, the Irish Republican Army, within the State. He was then asked by counsel for the prosecution:-
“Now, can I ask you whether, in stating that belief, that belief is based on any matter discovered during the arrest, detention or questioning of Mr Bullman that took place on the 16th, 17th and 18th February, whether that belief is independent of those matters.”

He replied:-
“My belief is independent of those matters.”

In cross-examination the Assistant Commissioner made it quite clear that in forming his belief he had no knowledge of what had transpired at the interviews conducted with the applicant.

On this ground the applicant relies on The People (Director of Public Prosecutions) v Gannon, unreported, Court of Criminal Appeal, 2nd April 2003. McCracken J. delivering the judgment of the court said:-
“At the trial the prosecution urged that two matters should be taken into account as being corroboration of the Chief Superintendent’s belief. These were the fact that the accused refused to answer questions when interviewed by An Garda Siochána and the fact that somewhat incriminating material was found in his house. The court held that these were not corroborative of the facts as may have been the fundamental basis for his belief. If they were fundamental to his belief, then they were not mere corroboration. This court agrees with that reasoning, and therefore it is clear that the only evidence, which was uncorroborated, against the applicant was the belief evidence of Chief Superintendent Walsh.”

The situation which existed in The People (Director of Public Prosecutions) v Gannon is not that which appertained here. Here the evidence before the court, and which the court was entitled to accept, was that the belief was based on matters other than the events which occurred on the 16th February 2005 or the interviews of the applicant thereafter. In these circumstances the Special Criminal Court was entitled to draw inferences. It is to be remembered that the court of trial heard evidence and had the opportunity of observing the demeanour of the witnesses for the prosecution and of the applicant and in these circumstances this court should be slow to interfere with the inferences drawn.

The applicant was questioned about his associates. In answer to questions at section 2 interviews he denied knowing a number of persons and said he could not remember others. There was evidence of his meetings with a number of these persons and, accepting that evidence, it was open to the court to find the answers untrue. There was material found on the applicant’s phone which was highly suspicious and amounted to circumstantial evidence. The applicant maintained that he did know the meaning of the text messages, to whom they were sent or from whom received. The court considered his answers in the context of all the evidence, and finding them to be untrue, was satisfied that they were corroborative of the evidence of belief. No inferences were drawn under section 5 of the Offences against the State (Amendment) Act 1998 lest to do so could amount to a double accounting. While no charges were brought against the applicant in relation to the currency of which he was found to be in possession, in the circumstances of this case, questions concerning the currency which was believed by the Gardai to be part of an IRA operation, were clearly material to the investigation of the charge against the applicant. The answers in relation to the associates however was relevant in that it was open to the court to find that the answers were false where Garda evidence was given of contact with the persons named, not in the context of section 5, but, in the context of section 2 as the court clearly found.

The applicant fails on this ground.

5. The learned trial judges erred in drawing inferences consistent with or probative of guilt in respect of answers to questions concerning the activities of the applicant at Heuston Station when there was no admissible evidence before the court to prove that the said activities amounted to crimes or activities committed by a prescribed organisation.

In relation to this ground it is important to consider the judgment of the Special Criminal Court. In the judgment the events at Heuston Station on the 16th February are outlined. In relation to the same the following findings were made:-
“1. On the basis of the evidence given, we are satisfied beyond reasonable doubt that the Garda version of events at Heuston Station is correct. In particular we are satisfied that the Daz box which contained the money was in Mr Bullman’s holdall bag. In reaching this conclusion, not only have we had regard to the viva voce evidence of witnesses, but to the CCTV evidence which we viewed, and the evidence of text messages referred to above and Mr Bullman’s reactions thereto.
2. There was Garda evidence to the effect that they were investigating an IRA money laundering operation. The accused is not charged in relation to possession of the money and there is no evidence of the origin thereof, or of any robbery. The relevance of the state of mind of the Gardai is that putting their questions in context (establishes) that the questioning put to Mr Bullman under section 2 aforesaid were material to their investigation.
3. There was evidence of the associates of the accused alleged to be involved in the IRA. Having regard to the fact that the accused was involved in Sinn Fein politics, we must have a doubt as to whether that evidence could, per se, entitle us to draw an inference against him. The evidence is, however, relevant in the context of the answers, or lack thereof, of the accused when asked about associates.”
Accordingly it is quite clear that the court in arriving at its decision on the charge of which the applicant was found guilty did not take into account the events at Heuston Station. Those events set the background for the Garda operation and investigation but formed no part of the judgment of the court save and except insofar as they were relevant to the interviews conducted in accordance with section 2 of the Offences against the State (Amendment) Act 1998 and the answers given by the applicant at interview. The judgment of the Special Criminal Court clearly shows that there is no basis in fact to support this ground.

The applicant fails on this ground.


6. The learned trial judges erred in relying upon the belief evidence of an Assistant Commissioner in the absence of the existence or application of any or any appropriate independent judicial mechanism to scrutinise the basis of the privilege claimed over the material relied upon to ground the opinion.

7. The learned trial judges erred in relying upon the belief evidence of the Assistant Commissioner because such evidence was based on privilege, was in violation of the right to cross-examine a witness and/or the duty of disclosure and/or the principle of equality of arms and/or the right to a fair trial as guaranteed under the Constitution or the European Convention on Human Rights.

The Offences against the State (Amendment) Act 1972 section 3(2) provides as follows:-
“Where an officer of the Garda Siochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.”

Assistant Commissioner Michael McAndrew gave evidence in accordance with the section. In February 2005 he held the rank of Chief Superintendent in charge of the Cork City Garda Division. He gave evidence of his career and in particular that in February 2005 he was the Detective Chief Superintendent in charge of the security and intelligence branch and remained in that position until promoted to Assistant Commissioner on the 4th August 2005. From 1978 when he was promoted to Superintendent at Dungarvan, Co. Waterford, and was involved in intelligence concerning, and surveillance of, subversive groups. His evidence was that he held a belief that on the 16th February 2005 the applicant who lived in Cork was a member of an unlawful organisation, the Irish Republican Army, otherwise known as the IRA. That belief was not dependent on any matter discovered during the arrest, detention or questioning of the applicant on the 16th, 17th and 18th February 2005. In cross-examination he said that in relation to the formation of his belief he had access to material in documentary form. It was his intention to claim privilege in respect of that material as to disclose it would expose the sources to risk and put them in immediate danger. The material extended back to the 1990s and was from Garda and other sources. He claimed privilege as to whether any benefit was received by sources in exchange for information, whether by way of compromise of a prosecution or payment of monies. He accepted that there may be persons sympathetic to subversive organisations who were not members. The witness’s anxiety in claiming privilege was to protect sources.

In the course of an exchange counsel for the applicant indicated that in his questioning he had not challenged the existence of privilege in relation to the revealing of sources. Counsel for the prosecution informed the court that the file was available to the court for inspection if required. The applicant did not require the court to inspect the file.

The applicant’s submissions rely on section 2 of the European Convention on Human Rights Act 2003 which provides as follow:-
“(1) In interpreting and applying any statutory provision or rule of law a court shall, insofar as possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”

Further section 4 of the Act provides as follows:-

“Judicial notice shall be taken of the Convention provisions and of -
(a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that court has jurisdiction,
(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction,
(c) any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction,
and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.”

The European Convention on Human Rights, Article 6.1 and Article 6.2 provide as follows:-
“1. In the determination of civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice.
3. Everyone charged with a criminal offence has the following minimum rights:
(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

The impact of the jurisprudence of the European Court of Human Rights was considered by the Supreme Court in The People (Director of Public Prosecutions) v Kelly, [2006] 3 IR 115. Fennelly J. noted that the decision of that court in Kostovski v Netherlands [1989] 12 E.H.R.R. 432 had been modified by subsequent decisions and in particular by Doorson v Netherlands [1996] 22 EHRR 330. The use of anonymous statements at trial is not, in all circumstances, incompatible with the Convention. The court in Doorson v Netherlands at paragraph 70, page 358 of the judgment held:-
“It is true that Article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply the that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.”

However measures restricting the rights of the defence shall be restricted to what is necessary: Van Mechelen & Ors v Netherlands [1998] 25 EHRR 647, Roe and Davis v United Kingdom [2000] 30 EHRR 1. There is recognition in the jurisprudence of that court of a legitimate public interest in protecting key sources of information, the safety of informers and witnesses. Relevant in this case also is the circumstance that the prosecution offered to make the material available to the court for inspection but the applicant did not require this: see Director of Public Prosecutions .v Mulligan, unreported, Court of Criminal Appeal, 17th May 2004 and Director of Public Prosecutions v Special Criminal Court [1999] 1 IR 60. Fennelly J. went on to say at page 146:-

“The essential question to be answered in this case is whether the undisputed restriction on the right of the accused to cross-examine his accusers and to have access to the materials relied upon by the prosecution has been unduly restricted so as to render his trial unfair and his conviction unsafe. I believe that all of the authorities cited from all relevant jurisdictions demonstrate that there is an inescapable obligation on the courts to guarantee the overall fairness of a trial. I also believe that, in our legal system, the right to cross-examine one’s accusers is an essential element in a fair trial. This is not to say that restrictions may not be imposed in the interests of overall balance and efficiency of the Criminal Justice system. While there may be derogations for overriding reasons of public interest from normal procedural rights of the defence, these must not go beyond what is strictly necessary and must, in no circumstances, to use the language of Lord Bingham, imperil the overall fairness of the trial.”
Fennelly J. went on to hold that, having regard to procedural protections which he enumerated, there was sufficient justification for the introduction of belief evidence and the maintenance of a claim to privilege over material upon which the same is based.

In The People (Director of Public Prosecutions) v Donohue, unreported, the Special Criminal Court, 28th November 2006 it was held that the restriction on the ability of the defence to cross-examine a Chief Superintendent as to the sources of his belief given in evidence pursuant to section 3 of the Offences against the State (Amendment) Act 1972 was not, ipso facto, a failing to comply with either Article 38 of the Constitution or with Article 6 of the Convention. In a further judgment delivered on the 26th October 2007 the Court of Criminal Appeal refused the applicant in that case a certificate pursuant to section 29 of the Courts of Justice Act 1924 on this question.

The Court of Criminal Appeal in The People (Director of Public Prosecutions) v Eamon Matthews, unreported 14th July 2006 adopted the like approach to Fennelly J. in The People (Director of Public Prosecutions) v Kelly and an argument on behalf of the applicant based on article 6 of the European Convention on Human Rights was unsuccessful.

There was evidence before the court of trial, which the court was entitled to accept, that the life, liberty or security of persons, whether Gardai or others, who gave information to the Gardai concerning the applicant or prescribed organisations generally would be at risk if disclosure of their identity was made. In these circumstances the court adopts the jurisprudence of the Supreme Court in The State (Director of Public Prosecutions) v Kelly and notes the jurisprudence of the European Court of Human Rights in Doorson v Netherlands. The court has regard to the safeguards which are available to a defendant in proceedings where such evidence is admitted and identified in The People (Director of Public Prosecutions) v Kelly at p.146-147 as follows:-
1. The resort to such evidence applies only in the case of organisations which, in their nature, represent a threat, not only to the institutions of the State, but to individuals who are prepared quite properly to co-operate with the State in securing the conviction of members of such organisations. This justifies some restriction on direct access on behalf of an accused to the identity of his accusers.
2. The Legislature permits such evidence to be given by members of An Garda Siochána of particularly high rank who can be presumed to have been chosen for having high standards of integrity.

3. The procedure applies only while there is in force a declaration that ‘the ordinary courts are inadequate to secure the effective administration of justice,

4. The offence is a scheduled offence and will be heard only by the Special Criminal Court: the court is now composed entirely of judges and must be presumed to apply only the highest standards of fairness.

5. The section enjoys a presumption of constitutionality. The restriction on the right to cross-examine is limited to the extent that it is strictly necessary to achieve the section’s objective.

6. It is the practice of the Special Criminal Court not to convict on belief evidence alone.

7. It is the practice of the Director of Public Prosecutions not to initiate a prosecution based solely on belief evidence.

8. The Chief Superintendent’s belief has no special status but is merely a piece of admissible evidence.
This court is satisfied that the provisions of section 3, properly applied, and having regard to the protections enumerated above does not infringe Article 6 of the European Convention on Human Rights.

The applicant fails on this ground.

8. The learned trial judges erred in relying on or drawing an adverse inference from the evidence of the applicant’s associations with individuals alleged to be involved in the IRA.

The nature of the evidence of association which was available to the Special Criminal Court is set out elsewhere in this judgment.

The Special Criminal Court made the following finding on that evidence:-
“There was evidence of the associates of the accused alleged to be involved in the IRA. Having regard to the fact that the accused was involved in Sinn Fein politics, we must have a doubt as to whether that evidence could, per se, entitle us to draw an inference against him. That evidence is, however, relevant in the context of the answers or lack thereof, of the accused when asked about associates.”

The court therefore did not in reaching its verdict rely on the evidence of the applicant’s associations for the purposes of drawing inferences adverse to the applicant.

In these circumstances there is no factual basis for this ground of appeal.

The applicant fails on this ground.

Conclusion
For the reasons hereinbefore set out the applicant is refused leave to appeal on each of the grounds upon which he relies on this application for leave.