High Court dismisses constitutional challenge to Bail Act 1997 s.2A regarding Superintendent's belief evidence.

Neutral Citation: [2017] IEHC 618

THE HIGH COURT

[2016 No. 1185 S.S.]

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 AND 40.4.3 OF THE CONSTITUTION

BETWEEN

M. H.

APPLICANT

AND

GOVERNOR OF CORK PRISON

RESPONDENT

AND

IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

JUDGMENT of Ms. Justice Faherty delivered on the 27th day of July, 2017

1. These proceedings are a constitutional challenge to s. 2A of the Bail Act 1997, whereby the applicant asserts that he is being held

on foot of an unconstitutional provision of the said Act.

Background

2. On 27th May, 2016, the applicant was charged before Limerick District Court with the alleged assault of a third party causing him

harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, and the false imprisonment of the said third party

contrary to s. 15 of the same Act.

3. The case the prosecution seeks to mount against the applicant is that he lured the third party to a house at a named address in

Limerick, whereupon the third party was set upon by a number of assailants, including the applicant, who were wearing white

protection clothing. The alleged assault against the third party was that a gun was put to his head and he was asked if he wished to

be shot in the eye or the ear with the assailants stating that they were from the IRA. It is alleged that they also made a demand of

money from the third party. It is alleged that the third party was then shot in both feet by a nail gun. It will be alleged that two of

the assailants told a third assailant to keep the third party in the house while they made good their escape. After some minutes, the

third party managed to get out of the house. He attended University Hospital Limerick, where a steel nail was surgically removed from

each foot. It will be the prosecution’s case that the applicant was one of the males wearing the white forensic suits in possession of

a nail gun and that he was effectively a central figure in the alleged assault of 14th September, 2015.

4. The applicant was refused bail in the District Court on 27th May, 2016, and subsequently brought an application for High Court bail,

which was first listed on 16th June, 2016. On that date, the applicant was furnished with a written notice of objection and the matter

was adjourned to 23rd June, 2016.

5. On 23rd June, 2016, the application for bail proceeded in the High Court sitting at Cloverhill before the President of the High Court

and the prosecution called evidence from Detective Garda Pat Whelan, Sergeant Brian O’Connor and from Chief Superintendant David

Sheahan in opposition to the bail application on the grounds established under The People (Attorney General) v. O’Callaghan [1966] IR

501 and pursuant to s. 2 of the Bail Act 1997.

6. Chief Superintendant Sheahan gave evidence that the refusal of bail was absolutely necessary to prevent commission by the

applicant of a serious offence. As his evidence is central to the issues in the within proceedings, it is apposite to set it out in some

detail.

7. He commenced his evidence by stating that he had approximately 33 years service in the Gardaí. He was promoted to

Superintendent in 2004, and in 2009, promoted to Chief Superintendant. He stated that for the six and a half years up to the hearing,

he was the Division Officer in charge in Limerick which included Limerick City and County. He testified that he had responsibility for all

criminal activity, in particular organised criminal activity, and that his actions in the six and a half years in charge related to trying to

quell the level of serious ongoing criminal activity in Limerick. In his capacity as Chief Superintendant, he received intelligence

briefings from both Crime and Security Division and his senior management team in Limerick. He testified that prior to the alleged

incident on 14th September, 2015, he received confidential information from Garda HQ in respect of certain players in a new grouping

who were arriving in Limerick City, and to the possibility of their being involved in criminal activity in the city. Additionally, a number of

active patrols and searches had been carried out in key areas in the city based on the intelligence received up to that point. The

applicant was known to Chief Superintendant Sheahan for a number of years as an operator of a business which previously was

involved in carrying out refurbishment works to local authority housing under the Limerick Regeneration Scheme. The Chief

Superintendant’s concerns were that literally overnight, the applicant seemed to recruit the services of persons well known to the

Gardaí locally and nationally as dissident republicans who had no connection to Limerick City and who were suspected of targeting

people in extortion and protection money. Chief Superintendant Sheahan testified that the individuals who arrived in Limerick City

appeared to come under the offer of employment from the applicant although in reality they were working as enforcers in a parallel

organisation operated by the applicant. It was his belief that this gang had access to assault rifles and had the capacity to cause

loss of life and, if necessary, prevent witnesses from giving evidence. It was his belief that the applicant was a pivotal figure in

facilitating these dissident republicans. While he did not believe the applicant had the capacity of causing the level of fear within the

community that those individuals could engender, he was certainly in close association and very closely aligned with his co-accused in

respect of the 14th September, 2015, incident who was a known dissident republican who had moved to Limerick in mid-2015. The

applicant had assisted this individual by providing him with housing and vehicles, including the vehicle being driven on the day of the

alleged incident. Chief Superintendant Sheahan also stated that he was aware that this co-accused had been charged with serious

offences in 2007 but that those charges had not been able to proceed before the Special Criminal Court because witnesses would not

give evidence. It was Chief Superintendant Sheahan’s belief from information communicated to him that the failure of the witnesses in

those cases to give evidence was due to intimidation. He “firmly” believed that the applicant, if granted bail, would orchestrate the

commission of serious offences including the intimidation of witnesses “by putting them in fear, causing them harm, possibly leading to

loss of life in order to successfully intimidate witnesses in this particular case”.

8. Chief Superintendant Sheahan also outlined that following a bail hearing in the High Court in respect of the applicant’s co-accused

(the person he had assisted with accommodation and vehicles following his arrival in the city), a named witness in the case had been

approached and interrogated by the co-accused and it was suggested to the witness that he go to a solicitor to retract any

information he may have disclosed to the Gardaí in respect of the incident of 14th September, 2015.

9. In response to questions as to what level he had satisfied himself that his evidence was necessary to give, Chief Superintendant

Sheahan testified that his belief was that the witness referred to in his evidence “will be interfered with” which imposed a significant

difficulty.

10. In cross examination, it was put to Chief Superintendant Sheahan that the evidence he had tendered to the court was not within

his own personal remit but rather information which had been relayed to him from investigating Gardaí, from intelligence and from

various sources, to which the Chief Superintendant replied:-

“I have six and a half years at the rank of Chief Superintendant in Limerick. I have to say to take the step, come to the

High Court to object to bail in a 2(a) application is not done on a whim…I would like to think that during the course of my

tenure in Limerick, that I have been very fair to all witnesses in the context of that.”

11. As to when his concern in relation to the s. 2A objection to bail for the applicant first arose, he stated that from his perspective,

it arose on 14th September, 2015.

12. At the conclusion of the prosecution evidence the matter was further adjourned at the request of the prosecution to 5th July,

2016, for further inquiries in relation to the tendering of the witness (alleged to have been intimidated by individuals acting for the

applicant’s co accused) in respect of whom hearsay evidence was led in the course of the hearing.

13. On 5th July, 2016, the application was again adjourned so that the prosecution witness could be served with a subpoena by the

applicant and for the calling of any defence witnesses and submissions.

14. On 27th July, 2016, the prosecution withdrew their objection to bail under the O’Callaghan grounds. The applicant’s mother was

then called on behalf of the applicant and proposed herself a surety for bail.

15. Submissions were then made by counsel on both sides. Counsel for the prosecution submitted that there was a strong case

against the applicant which began with eye witness accounts that placed him wearing a form of boiler suit in the company of people

who lured the third party to the house where he was assaulted. There was evidence that a vehicle the applicant had used was

placed at the scene of the alleged incident and that there was CCTV footage which showed the applicant dropping off his co-accused

after the incident. Counsel also alluded to the evidence of Chief Superintendant Sheahan which, it was submitted, was borne out of

his knowledge of the investigation itself and from information from intelligence sources that was corroborative and credible evidence

of the applicant’s recruitment of people believed and known to be involved in criminality, and of his provision of cars and

accommodation to his co-accused. Counsel also referred to Chief Superintendant Sheahan’s awareness of the co-accused’s attempt

to contact a witness in an attempt to get him to retract information given to the Gardaí. It was submitted that that evidence of Chief

Superintendant Sheahan was admissible for the limited purpose of allowing the court to gauge the weight to be placed on Chief

Superintendant Sheahan’s evidence pursuant to s. 2A and in aid of the court forming a view of the cogency of the information which

Chief Superintendant Sheahan brought to bear in forming his opinion.

16. In the course of his submissions, counsel for the applicant stressed the presumption of innocence which the applicant enjoyed

and the presumption that he was entitled to bail, which was being sought to be displaced. It was submitted that the Court should

limit its view to effectively what evidence was proffered against the applicant in respect of the charges. It was further submitted

that the evidence in relation to alleged intimidation of a named witness had to be disregarded in light of the dropping of the

O’Callaghan objection to bail save to the extent that it may have informed the opinion of Chief Superintendant Sheahan. It was also

argued that witnesses who allegedly put the applicant at the scene of the incident were unidentified to the applicant which bordered

on the “kafkesque” in circumstances where the applicant was not able to cross-examine them. The court was also asked to discount

evidence from Sergeant O’Connor of a threatening phone call to the injured third party in the absence of it being established that the

applicant was connected to it and it was submitted that the entirety of Sergeant O’Connor’s evidence amounted to an O’Callaghan

objection.

17. Counsel for the applicant then turned to what he characterised as the main objection to bail, namely the evidence of Chief

Superintendant Sheahan. Counsel objected to s. 2A evidence if it was to be construed in a fashion so as to give rise to a refusal of

bail and the rebuttal of the presumption of bail in favour of the applicant. Counsel challenged the evidence given by Chief

Superintendant Sheahan as founded on hearsay and in respect of which privilege was claimed. It was submitted there was nothing in

s. 2A to affect the rule against hearsay. Counsel stated that many of the sources of the information tendered by Chief

Superintendant Sheahan were Garda operatives including those of the rank of Chief Superintendant or higher. It was submitted that

there was nothing to prevent those individuals themselves giving evidence. Counsel also submitted that there was no constitutional

basis for the claim of privilege which was asserted over the evidence given by the Chief Superintendant. In those circumstances there

was no constitutional basis for the court to grant a determination in relation to evidence which was based on privileged information

and in respect of which no cross-examination was possible. In that regard, counsel referred to the decision of Mac Eochaidh J. in

McDonald v. Governor of Cloverhill Prison [2016] IEHC 292. Counsel contended that what the court was left with was an applicant

who had no previous convictions, who had never infringed bail conditions and who was a pillar of the community. It was submitted

that there was no adequate evidential basis for the court to constitutionally construe s.2A such as to determine that Chief

Superintendent Sheahan’s opinion that the refusal of bail was reasonably necessary outweighed the presumptions which attached to

the applicant.

18. Kelly P. then gave his ruling on the bail application. He firstly recounted the circumstances of the alleged assault and false

imprisonment and stated that it was clear from the evidence he had heard that the applicant was part of a common or joint enterprise

on 14th September, 2015 which lured the third party to the premises in which he was assaulted and falsely imprisoned. He referred to

the evidence given against the applicant in respect of the charges including evidence of CCTV footage of a car (which had been

leased by the applicant’s company) being driven by the applicant close to the house where the alleged assault took place and footage

of the applicant driving into the area in question and later dropping off his co-accused. He alluded to GPS tracker devices putting the

car at the scene of the alleged incident at the relevant time. Kelly P. discounted certain ballistic and forensic evidence and also the

evidence concerning the witness in respect of whom it was alleged was being subject to intimidation as it was not possible to produce

him to give evidence as had been requested by the applicant. Kelly P. noted that the applicant had no previous convictions and no

history of bail infringements. He accepted that the applicant had done much good in his community and had displayed courage in

giving evidence in the case of Director of Public Prosecutions v. Dundon which had been a case “of no little controversy”. He

accepted that the applicant had the presumption of innocence in his favour and also had a presumption in favour of bail being granted

to him.

19. The learned President then went to on state:

“What, therefore, is the objection to bail? The sole objection to bail is raised by reference to section 2 of the Bail Act

1997 as amended. Section 2, subsection 1 says; ‘Where an application for bail is made by a person charged with a serious

offence, a Court may refuse the application if the Court is satisfied that such refusal is reasonably considered necessary

to prevent the commission of a serious offence by that person.’ Subsection 2 provides that:

‘in exercising the jurisdiction conferred under subsection 1, a Court shall take into account or may where necessary

receive evidence or submissions concerning …’ and it then lists a number of matters only some of which have a relevance

here. The first matter is: ‘The nature and degree of seriousness of the offence with which the accused person is charged

and the sentence likely to be imposed on conviction.’ Well, from the brief description which I have given which is taken

from the evidence which was led before me, these offences are undoubtedly ones of very great seriousness and if a

conviction results, it would be impossible to imagine other than a substantial custodial sentence being imposed. Second,

and this is at sub head (b) of s. 2.2: ‘The nature and degree of seriousness of the offence apprehended and the sentence

likely to [be] imposed on conviction.’ And I’ll come to consider that in the context of certain evidence which I will address

in a few moments in the course of this ruling. The third matter for consideration is the nature and strength of the

evidence in support of the charge and I have given an outline of that insofar as it affects the applicant for bail here. The

next matter is one which is of no consequence insofar as (sic) this applicant is concerned because it entitles the Court to

have regard to any conviction of the accused person for an offence committed while he or she was on bail and that

simply doesn’t apply. Neither does the next subheading which is: ‘Any previous convictions of the accused person

including any conviction the subject of an appeal to a court’. And that has no application either. And neither has the

following subsection which provides for the consideration of any other offence in respect of which the accused person is

charged and is awaiting trial. Finally, the last matter that is mentioned is the addiction to a controlled drug which may

afflict the applicant, and that, likewise, has no application here.

20. Kelly P. continued:

“This is a case in which evidence was led from a Chief Superintendent of the Guards and that is permitted having regard

to the terms of section [2A] of the Bail Act which was brought about as a result of a section of the Criminal Justice Act

2007 which interposed [s. 2A] into section 2 of the Act of 1997. It reads: Where a [member] of the Garda Síochána not

below the rank of Chief Superintendent in giving evidence in proceedings under section 2 states that he or she believes

the refusal of the application is reasonably necessary to prevent the commission of a serious offence by that person the

statement is admissible as evidence that refusal of the application is reasonably necessary for that purpose.’ That

evidence pursuant to the permissive provisions of section [2A] was led from Chief Superintendent Sheahan… He gave

evidence of his belief, the belief being expressed in accordance with what is permitted under section [2A], namely that in

his view, the refusal of this application is reasonably necessary to prevent the commission of a serious offence by [the

applicant] I am satisfied on a consideration of the opinion which he expressed that it was one which was formed

reasonably and responsibly. It was not formed or given in a capricious or superficial way, it was balanced. I accept that

he is, as a matter of his own practice, reluctant to give such evidence as he said and I am satisfied he would only do so,

as the responsible divisional officer, if he felt it were appropriate and justified that he should do so. The evidence which

he gave was unequivocal as to his belief that the refusal of bail was reasonably necessary in order to prevent the

commission of a serious offence by [the applicant]. He told me of a new grouping of persons involved in organised crime

that has emerged in recent times in Limerick. Many of the persons involved here have no previous criminal history and it is

part of dissident republican activity. He described [the applicant] [as] a pivotal figure in facilitating maverick dissident

republican activities. His belief in that regard was formed by reference to first of all his own knowledge as a very

experienced divisional officer for Limerick City and County. Secondly it was formed by reference to information which he

receives on an ongoing basis from [his] own officers, who are on the ground and under his direct command, and their

knowledge about organised crime in the areas that they police. He was also apprised of information and intelligence

forthcoming from Crime and Security branch and I am satisfied that having being so apprised, he appraised all of this in

forming the belief which he expressed to me. It is of course the case that in respect of some of the information which he

relied upon, a claim of privilege was maintained in respect of it. That being so, there was of course no ability to cross-

examine on that element of his evidence, and I take that into account in the weight that I give to his evidence. Much of

the cross-examination was an endeavour to try an devalue his evidence by suggesting that he was merely repeating

information which he had received without any real evaluation of that taking place on his part. I do not accept that that

was so. I believe that he gave evidence responsibly and with full knowledge of the seriousness of the material that he

was dealing with and the consequences of the evidence if it were accepted by the Court for [the applicant] and his

liberty. However, I have come to conclusion that the Superintendent’s view was one which was responsibly arrived at,

that it was formed with care and expressed with caution. I do not regard myself as in any way bound to accept his

evidence and if I thought that it was given without due care or attention or that it suffered from any other deficit, then I

would reject it. But that is not the case here.

So, weighing all of this in the balance I have on the one hand [the applicant] with his clear record to date, with his

considerable involvement in community activities which have been well set out in the documentary material that I have

had the opportunity of reading since it was handed in this morning, the evidence of his own family circumstances, the

courage which he displayed on a former occasion when he gave evidence for the DPP, and on the other side of the

balance I have the Chief Superintendent’s statement of belief. Taking into account all that has been said and can be said

in favour of [the applicant], and it is considerable, I nonetheless have come to the conclusion that having regard to the

evidence that I’ve had from the Chief Superintendent and in circumstances where the only evidence I have had from [the

applicant] is the affidavit sworn by him which is fairly perfunctory form, that I have come to the conclusion that in the

circumstances, the Chief Superintendent’s view is one which prevails upon me. And I believe that having regard to that

which I have attempted to express in short form in the course of [this] ruling I have come to the conclusion that in this

case, it is reasonably necessary to prevent the commission of a serious offence by [the applicant] by refusing bail and

that’s the order which I make.”

21. A notice of appeal was filed against the refusal of bail on 5th August, 2016 with the applicant expressly reserving the right to

challenge the constitutionality of s. 2 A of the 1997 Act.

22. On 26th August, 2016, the Director of Public Prosecutions (DPP) filed a response to the appeal in which an objection was

maintained to the challenge to the constitutionality of the Act in the appeal proceedings.

23. On 26th October, 2016, the Book of Evidence was served on the applicant in Limerick District Court and he was sent forward for

trial to the Special Criminal Court. At the time of the hearing of the within application, the applicant’s trial was due to come on for

hearing in March 2017.

24. The within proceedings commenced on 2nd November, 2016, by way of an enquiry into the legality of the applicant’s detention

pursuant to Article 40 of the Constitution. It was indicated by Counsel for the applicant that it was proposed to invoke Article 40.4.3

for the purposes of challenging the constitutionality of s. 2 and s. 2 A of the Bail Act, 1997. Mac Eochaidh J. opened an enquiry and

directed that the respondent should certify the grounds of the applicant’s detention.

25. Following the commencement of the within proceedings and before the matter came on for hearing, on 31st January, 2017, the

Court of Appeal rendered its decision in the case of see CMcD. v. Ireland and the Attorney General [2017] IECA 81. In the course of

the within hearing, counsel for the applicant advised the Court that following upon the decision of the Court of Appeal in CMcD,

certain aspects of the within challenge were not being pursued as they had been addressed by Birmingham J. in CMcD. Counsel

submitted however that a significant issue in CMcD was not decided by the Court of Appeal and had been expressly left over.

Accordingly, the applicant was maintaining his challenge to the constitutionality of s. 2A of the 1997 Act because it allows for the

refusal of bail that was based wholly or decisively on the belief evidence of Chief Superintendent Sheehan which concerned matters

that he himself had not witnessed or observed.

26. Before considering the matters in issue in the within proceedings, it is apposite at this juncture to set out the relevant provisions

of the 1997 Act.

27. Section 2 subs. 1 and subs. 2, as amended provide:

“2.—(1) Where an application for bail is made by a person charged with a serious offence, a court may refuse the

application if the court is satisfied that such refusal is reasonably considered necessary to prevent the commission of a

serious offence by that person.

(2) In exercising its jurisdiction under subsection (1), a court shall take into account and may, where necessary, receive

evidence or submissions concerning—

(a) the nature and degree of seriousness of the offence with which the accused person is charged and the sentence

likely to be imposed on conviction,

(b) the nature and degree of seriousness of the offence apprehended and the sentence likely to be imposed on

conviction,

(c) the nature and strength of the evidence in support of the charge,

(d) any conviction of the accused person for an offence committed while he or she was on bail,

(e) any previous convictions of the accused person including any conviction the subject of an appeal (which has neither

been determined nor withdrawn) to a court,

(f) any other offence in respect of which the accused person is charged and is awaiting trial,

and, where it has taken account of one or more of the foregoing, it may also take into account the fact that the accused

person is addicted to a controlled drug within the meaning of the Misuse of Drugs Act, 1977”.

28. Section 2A(i) of the 1997 Act (as inserted by s.7 of the Criminal Justice Act 2007) provides:

“Where a member of an Garda Síochána not below the rank of Chief Superintendent, in giving evidence in proceedings

under section 2, states that he or she believes that refusal of the application is reasonably necessary to prevent the

commission of a serious offence by that person, the statement is admissible as evidence that refusal of the application is

reasonably necessary for that purpose.”

29. In the course of his submissions, counsel for the applicant maintained that although two other prosecution witnesses gave

evidence in the applicant’s bail application, the wholly decisive evidence was that of Chief Superintendent Sheehan. This, counsel

submitted, is entirely apparent from the structure and context of the ruling. In particular, it is submitted that the latter portion of the

ruling of Kelly P. established that Chief Superintendent Sheehan’s evidence was clearly the decisive evidence and that Kelly P. did not

cite any other evidence or witnesses in denying bail, his focus being on his acceptance of what was said by Chief Superintendent

Sheehan over what had been said in favour of the applicant. While it is accepted that Kelly P. did carry out an assessment under (a)

– (f) of s. 2(2) of the 1997 Act, nevertheless it was only in the context of Chief Superintendent Sheehan’s evidence that bail was

refused. Counsel submits that the frailty in this approach was contemplated by Birmingham J. in CMcD when he left over the question

of whether s. 2A of the 1997 Act would be unconstitutional if it allowed for bail to be refused solely on account of the opinion

evidence of a Chief Superintendent.

30. It is submitted that the transcript of the bail hearing in issue in these proceedings is illustrative of the concern expressed by

Hardiman J. in Redmond v. Ireland and The Attorney General [2015] IESC 98 in respect of s.3(2) of the Offences Against the State

(Amendment) Act 1972 (“the 1972 Act”), which render admissible the belief of a Chief Superintendent that a person accused of

membership of the Irish Republican Army (IRA) is in fact a member of that Organisation. As to the nature of that belief, Hardiman J.

opined (at paras. 5-7):

“ I have no doubt that the provisions of s. 3(2) represent a very serious diminution in the protections ordinarily afforded

to an accused person by the law of evidence. On the face of it, it merely makes the opinion of the Chief Superintendent

admissible in evidence. In reality, however, its effect is far greater. That effect cannot be better stated than it was by

Fennelly J. in DPP v. Kelly [2006] 3IR 115. Fennelly J. said, at p.135:

“The real problem is that, where privilege is claimed, as it inevitably is, the defendant does not know the basis of

that belief. He does not know the names of the informants or the substance of the allegations of membership.

Without any knowledge of these matters, the accused is necessarily powerless to challenge them. Informants may

be mistaken, misinformed, inaccurate or, in the worse case, malicious. None of this can be tested.” (Emphasis

added)

…

If a superintendent can be ‘manipulated’ in relation to a professional function which was reserved to him under the law

as it stood, then it seems clear that little comfort can be taken in the high rank of the giver of belief evidence under

s.3(2). He too might be ‘manipulated’ by the giver of a ‘mistaken, misinformed, inaccurate or malicious information’,

from within the Force or from outside it.

It must also be said that the cross-examination of a Chief Superintendent giving evidence pursuant to s. 3(2) is fraught

with danger because it will almost invariably open the door to the tendering by an adept and experienced witness, of

prejudicial material without any notice to the defence. See the use made of undisclosed material in a slightly different

context in the membership case of DPP v. Cull [1980] 2 Frewen 36.”

31. At para. 24, Hardiman J. went on to state:

“ I do not consider that s.3(2) would be consistent with the Constitution if it permitted the conviction of a person solely

on the basis of the opinion evidence. This is even more obviously the case if privilege is successfully asserted over the

material which led to the formation of the opinion. This is because these matters in combination tend to exclude any

‘examinable reality’ from the case and thereby undermine any potential avenue to effectively challenge the opinion

evidence. The effect of this is wholly to subvert the prospects of useful cross examination and to exclude even the

theoretical possibility of undermining the opinion by cross examination. This creates scope for the possibility of a

conviction on opinion evidence only, which evidence is effectively unchallengeable.”

32. Ultimately, the Supreme Court upheld the constitutionality of s. 3(2) of the 1972 Act. Hardiman J. endorsed the view of Charleton

J. that there were safeguards available in the statute in that belief evidence itself could not stand alone and would have to be

supported by other evidence. Hardiman J. stated however that the section would have been repugnant to the Constitution if it

permitted an accused person to be convicted solely on the basis of belief evidence.

33. In the present case, counsel for the applicant contends that fair procedures for the applicant required that there must be, in the

words of Hardiman J., an “examinable reality” to the applicant’s cross-examination of Chief Superintendent Sheehan but such cross-

examination was not possible as all that had been proferred to the bail court was the belief of the Chief Superintendent who was not

stating what he himself heard or saw, and where he was conveying only an accumulation of information from other sources.

34. It is submitted that while s. 2A only renders admissible what would otherwise be inadmissible, the difficulty is that s.2A inevitably

permits the prosecution to lead what is hearsay evidence. Counsel contends that it is not the case that the Chief Superintendent

merely states his or her belief. Invariably, the prosecution counsel is permitted to ask the Chief Superintendent to state the basis of

his or her opinion, as done by prosecution counsel in the applicant’s case. Chief Superintendent Sheehan was asked how he assessed

the reliability of his sources, how he categorised the information received and dealt with it and how the applicant fitted in with this

information. Yet, none of this underpinning evidence as given by the Chief Superintendent was based on what he himself had heard or

seen. That, counsel submits, is the reality of life under s. 2A. It is contended that the alternative scenario, as proffered by the

respondents in their written submissions, is that the Chief Superintendent could state only his opinion and that the applicant would

not cross-examine him, is equally unfair to the applicant as the belief within go unchallenged, leaving a bail applicant in a vulnerable

position, given that the belief evidence in s. 2A is framed in the same language as the statutory test in s. 2 for the refusal of bail. It

is argued that notwithstanding the dictum of Birmingham J. in CMcD that s. 2A does not permit evidence to be lead by way of

hearsay, what occurred in the applicant’s case is that the reality was that the Chief Superintendent’s evidence conveyed information

from persons who were not heard at the bail hearing.

35. Counsel thus submits that s. 2A breaches the principles of egalité des armes, with the scales being tipped in favour of the

prosecution. Moreover, it allows the prosecution to say that the refusal of bail is reasonably necessary, yet no provision of the 1997

Act allows an accused to adduce belief evidence from his or her own witnesses to say that refusal of bail was not reasonably

necessary. That, counsel submits, is unfair, having regard to the broad range of cases to which s. 2A can be applied.

36. It is further submitted that s. 2A is unconstitutional because of the absence of any safeguards (such as the necessity for

corroboration) in the provision itself, thereby causing a disproportionate interference with the applicant’s rights. In aid of his argument

in this regard, Counsel cites the dictum of Denham J. in D.v. DPP [1994] 2 I.R. 465, where she states:

“The applicant's right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a

hierarchy of constitutional rights it is a superior right.

A court must give some consideration to the community’ right to have this alleged crime prosecuted in the usual way.

However, on the hierarchy of constitutional rights there is no doubt that the applicant's right to fair procedures is

superior to the community’ right to prosecute.

If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s

right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.”

37. Counsel also submits that while the rights of the applicant are not absolute and that there may be competing public interests, the

burden and onus of proof is on the party who asserts that the curtailment to the constitutional right is proportionate. As to how

proportionality is to be assessed, counsel referred to Heaney v. Ireland [1994] 3 I.R. 593, where Costello J. drew his test of

proportionality from the jurisprudence of the Canadian Supreme Court. It is argued that s. 2A of the 1997 Act breaches the second

limb of Costello J.’s test of proportionality in Heaney, such that the breach should “impair the right as little as possible.”

38. Reliance is also placed on the 2003 decision of the Canadian Supreme Court in Nova Scotia v. Martin [2003] 2 SCR 504, where the

Court stated:

“A limitation to a constitutional guarantee will be sustained once two conditions are met. First, the objective of the

legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable

and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria

must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned

provision must minimally impair the Charter guarantee; and (3) there must be a proportionality between the effect of

the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the

right. In all s. 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation

is justifiable.” (at para. 107).

39. In opposing the within challenge the respondent submits that:

1. The constitutionality of s. 2A of the 1997 Act was upheld by the Court of Appeal in CMcD;

2. S. 2A does not permit the prosecution to lead hearsay evidence as alleged by the applicant or at all;

3. The provisions of s. 2 and s. 2A of the Act are proportionate, permissible and balanced by procedural and statutory

safeguards;

4. Any belief evidence tendered by s. 2A is not determinative of the objection to bail but rather constitutes one piece of

evidence to be weighed in the balance. It is a matter for the bail court to determine the weight, if any, to be attached to

the belief evidence and to consider the bail application in light of all the evidence before the court.

40. From the applicant’s written and oral submissions, the arguments as to the unconstitutionality of s.2A fall into three broad

categories:

(a) The nature of the evidence grounding the opinion of a Chief Superintendent, hearsay evidence and confidential

information;

(b) The necessity for proportionality and the absence of adequate safeguards; and

(c) The consequences flowing from the admissibility of an opinion as evidence in identical terms to the test for bail.

41. Counsel for the respondent argues that all the issues raised by the applicant in these proceedings have been settled by the Court

of Appeal CMcD, in favour of the State, and submits that what is left for consideration in the present proceedings is a hypothetical

situation referred to by Birmingham J. in CMcD, at para. 45 thereof, namely whether a refusal of bail solely on the Chief

Superintendent’s belief evidence would be constitutional. The respondents contend that insofar as the constitutionality of such a

scenario might have been left open by Birmingham J., it was not in any event the situation which pertained in the applicant’s bail

hearing. Counsel for the applicant disputes this assertion.

42. Before turning to this particular question, I will firstly address the applicant’s other principal arguments as addressed in written

and oral submissions. In fairness to the applicant, it is not disputed that many of his complaints have been rendered redundant by

reason of the decision of the Court of Appeal in CMcD.

43. The first of the applicant’s complaints, namely the hearsay nature of the belief evidence and asserted privilege and the

consequent constraints put on his counsel’s ability to cross examine has been comprehensively addressed by the Court of Appeal in

CMcD, where Birmingham J. states:

“33. There is nothing exceptional about the court hearing evidence that an appellant for bail is likely, or indeed highly

likely, to re-offend. I make those remarks not to downplay the significance of the evidence of a Chief Superintendent in

the context of a s. 2 application where s. 2A is called in aid by the prosecution in opposing bail. The Chief Superintendent

is permitted not just to state a belief that refusal of the application is reasonably necessary to prevent the commission

of a serious offence by the person concerned (which he would not normally be allowed to do under the rules of evidence

unless put forward as a properly credentialed expert speaking within the scope of his expertise) but the provision goes

on to provide that where he has made a statement to that effect the statement is admissible as evidence that refusal

of the application is reasonably necessary for that purpose. No objection can therefore be made to the admissibility of

the belief evidence of the Chief Superintendent in reliance on the normal rules of evidence. Moreover, even if there was

no other evidence in support of a s. 2 objection, the stated belief of the Chief Superintendent would constitute such

evidence. That having been said, the section renders admissible the evidence of the garda officer only and does not

provide for the admission of hearsay evidence of the statements of informants or other persons. Moreover, apart from

what has been already stated, belief evidence admitted pursuant to s. 2A does not have any special status. It has to be

weighed and evaluated in the normal way; and an applicant may seek to test it by means of cross-examination of the

Chief Superintendent in the normal way, and with a view to trying to persuade the court that little weight should be

attached to it.”

44. I will return in due course to the manner in which the Chief Superintendent’s evidence was weighed and evaluated by Kelly P.

45. As is also clear from CMcD, it is for the bail court to accept or reject the opinion evidence and it is not the case that it is

invariably accepted:

“34. …Statistics put before the High Court establish that s. 2A is invoked very rarely. In 2015, in only seventeen cases or

0.8% of the cases dealt with in the High Court Bail List was the section relied on. More significantly, in eleven of the

seventeen cases, where reliance was placed on s. 2A, the applicant was nonetheless admitted to bail despite the

opposition of the Chief Superintendent. There can be no doubt but that the fact that a Chief Superintendent is of a

particular belief does not result in automatic refusal of bail. An applicant for bail is refused bail and remanded in custody

only if the court, not the Chief Superintendent, is of the view that the refusal of bail is reasonably necessary to prevent

the commission of further offences.” (Emphasis added)

46. As to whether s. 2A of the 1997 Act permits hearsay evidence, Birmingham J. addressed that issue in the following terms:

“35. The complaint is made that the section permits the introduction of hearsay evidence and indeed allows the

determination of the application on the basis of hearsay evidence. However, on closer analysis, the section is not about

the introduction of hearsay. What the Chief Superintendent was told outside the court is not admissible in evidence.

Even if a Chief Superintendent was prepared to say what someone else told him, perhaps because his source was now

dead or for some other reason not amenable to retribution, that evidence would not be admissible absent acquiescence

or consent by the party entitled to object. However, what is admissible by virtue of the statute is the belief or opinion

formed by the Chief Superintendent. That is not hearsay. However, and but for the statute, it would have been

inadmissible as opinion evidence offered by a non – expert witness. The fact that the belief or opinion may have been

formulated on the basis of material that has come from informants, either coming directly to the Chief Superintendent

or through garda colleagues, on the basis of other sources of information, whether by telephone intercepts or otherwise

has no impact on its admissibility or its status as evidence. It may, however, negatively affect the weight to be

attached to the belief or opinion. That being so, the reality is that in a great many cases, the applicant will in fact be

keen to have had elicited, or to elicit himself, that the belief is based on information coming from a third party or third

parties, knowing full well that privilege is likely to be claimed preventing any further testing or exploration of the matter,

thereby allowing a strong submission to be made that the court must attach little weight to that evidence in those

circumstances. Therefore, as a matter of practicality, any theoretically possible objection based on the rule against

hearsay will, very often, be rendered nugatory.”

47. In so far as counsel for the applicant raises the issues of the “examinable reality” of opinion evidence, (as commented on by

Hardiman J. in Redmond), it is apparent from the foregoing passage in CMcD that that issue did not give the Court of Appeal cause for

concern in the context of the constitutionality or otherwise of s.2(A). Birmingham J. was satisfied that anything elicited by cross-

examination (or indeed by the prosecution in direct examination) from a Chief Superintendent who provides belief evidence which

touches upon the extent to which the belief evidence emanates from information gleaned from third parties will invariably be a matter

for the bail judge to evaluate for the purpose of attaching weight to such evidence. The same went for evidence in respect of which

privilege may be claimed.

48. I now turn to the applicant’s proportionality arguments and the safeguards which counsel for the applicant posits as ought to

have been included in the 1997 Act in order to ensure proportionality. These are:

(i) A requirement that a special application should be made to the bail judge for leave to call belief/hearsay evidence;

(ii) A requirement that the prosecution must first demonstrate they have exhausted their efforts at securing evidence

from witnesses who will give their evidence viva voce;

(iii) Building in a safeguard that confines usage of the section to use in the Special Criminal Court, or other such narrow

remit;

(iv) A requirement that the evidence would be given by a Chief Superintendent who is independent of the investigation;

and

(v) A requirement that bail could not be refused solely on the basis of the belief evidence of the Chief Superintendent.

49. Similar safeguards were advocated in CMcD. Birmingham J. addressed those submissions in the following terms:

“39. Once the constitutional amendment was passed, it was for the Oireachtas to determine the shape of the legislation

to give effect to the peoples’ decision. It would have been open to the Oireachtas to prescribe a limited list of offences

charged and/or apprehended in respect of which s.2A might be utilised. However, it did not do so, and it is not for the

courts to legislate, or to prescribe the terms of any future legislation. Section 2 reflects the terms of the constitutional

amendment. Section 2A simply provides an evidential provision which is applicable in the context of s. 2 objections.

However, although on the statute book since 2007, s.2A has in fact been invoked in only a few cases to date. Be that as

it may, I am completely satisfied in any event that the measure in controversy is not in any way disproportionate to the

legitimate aim being pursued. The people of Ireland were sufficiently concerned with offences being committed by

persons on bail to amend the Constitution. In circumstances where a prediction as to future behaviour is involved, it

would be inimical to the will of the people as expressed in the Bail referendum that evidence of belief or opinion could not

be given by at least some garda officer as to whether an appellant was considered likely to commit a serious offence

while on bail unless it was established first of all that he/she was in a position to give that evidence in the capacity of an

expert speaking within the scope of his/her expertise. I am satisfied that s. 2A, which merely eliminates that

requirement in the case where an objection under s. 2 of the Act of 1997 is being relied upon, so as to allow a Chief

Superintendent to give evidence of his or her relevant belief or opinion in support of that objection, and only for that

limited purpose, is entirely proportionate to the legitimate aim of properly giving effect to the will of the people as

expressed in the referendum.”

50. Furthermore, with regard to the first three of the suggested safeguards, I am also satisfied that the dictum of Birmingham J.,

namely that there is “nothing exceptional” (at para. 33) about opinion evidence and that it falls to be “weighed and evaluated in the

normal way” (at para.33) militates against the requirement for the safeguards advocated by counsel for the applicant before such

evidence is tendered. As to the suggestion that the opinion evidence should come from a Chief Superintendent who is independent of

the investigation, this was expressly rejected by the Court of Appeal in CMcD when Birmingham J. described such a suggestion as

“fundamentally misconceived” and “bordering on the absurd” (at paras. 36-37) The final safeguard suggested by counsel for the

applicant is that bail should not be refused solely on the basis of the belief evidence of the Chief Superintendent. However, it is

imminently clear from the provisions of s.2 and s.2A(i) of the 1997 Act when construed together, as they must, that the belief of the

Chief Superintendent is no more than evidence which falls to be considered when the bail court is exercising its jurisdiction under

s.2(1) to refuse bail. This has been made abundantly clear by Birmingham J. in CMcD. As stated by the learned Judge:

“S. 2A does not create a free standing basis by means of which bail can be objected to. All s. 2A in fact does is to permit

a certain form of evidence to be adduced in support of a s. 2 objection” (at para. 17).

51. Thus, the question which remains for determination by this Court is whether, having regard to the factual matrix in this case, the

applicant has made out a challenge to the constitutionality of s. 2A of the 1997 Act in that the provision essentially compelled Kelly P.

to refuse bail based wholly upon the belief evidence given by Chief Superintendent Sheahan. A contention of similar ilk arose in CMcD,

both in the High Court and in the Court of Appeal and was rejected by both courts. In the Court of Appeal, Birmingham J. found no

need to address the issue, being in agreement with Mac Eochaidh J. in the High Court that “the s. 2A evidence was by no means the

only evidence” offered to oppose bail in CMcD. Birmingham J. put the matter as follows:

“42. The evidence rendered admissible by virtue of s. 2A was certainly significant evidence, and that cannot be gainsaid,

but it was very far from being the only evidence in support of the s. 2 objection.

43. Being firmly of that view I am very reluctant to become involved in expressing views on what is a hypothetical

situation, i.e., what would the situation be if bail was refused solely on the belief evidence of a Chief Superintendant? I

would prefer to leave an answer to that question until it arises, if indeed it ever arises and I am far from convinced that

it will. I would though repeat the view that I expressed earlier that expressing a belief as to what is likely to happen in

the future is not to be equated with expressing a view in relation to an ongoing state of affairs.

44. I am in agreement with the High Court judge that the challenges to the constitutionality of s. 2 (to the extent that it

has featured in the present hearing) and to that of s. 2A, respectively, of the Act of 1997 have not been made out, and

I would therefore dismiss the appeal.”

52. In the present case, it is submitted on behalf of the applicant that the hypothetical situation upon which Birmingham J. declined

to opine came to pass in the applicant’s bail hearing, namely that bail was refused based wholly on the belief evidence of Chief

Superintendent Sheahan. It is contended that the ruling in issue here is a world apart from the factual matrix in CMcD, and that as a

matter of reality bail was refused on s. 2A grounds on the uncorroborated belief evidence of Chief Superintendent Sheehan, as

weighed against the credit given to the applicant.

53. In considering this particular argument, it is apt again to rehearse the words of Birmingham J. in CMcD, to wit, “s.2A does not

create a free standing basis by means of which bail can be objected to.” (At para. 17) The question in the present case therefore is

did Kelly P. determine the objection to bail solely on the basis of s.2A?

54. Having reviewed the transcript of the ruling, as set out above, the Court is not satisfied that the refusal of bail was based wholly

on the belief evidence of the Chief Superintendent, as contended for in these proceedings. A perusal of the transcript shows that in

the first instance, Kelly P. considered the weight of evidence against the applicant, as he must in order decide whether his statutory

discretion to refuse bail on s.2 grounds should be exercised. There was a range of evidence before the learned Judge, not confined to

that tendered by Chief Supintendent Sheahan. While he does not name Garda Whelan in his ruling, it is apparent from that in the

context of s.2(2)(a) of the 1997 Act, Kelly P. had regard, inter alia, to the evidence which Garda Whelan gave concerning the “very

great seriousness” of the alleged offence, in respect of which, if a conviction ensued, “it would be impossible to imagine other than a

substantial custodial sentence being imposed”. He went through the statutory requirement set out in s. 2(2) (c) of the 1997 Act and

noted the nature and strength of the evidence in support of the charge. In this regard he noted the evidence (given by Garda

Whelan) said to connect the applicant to the alleged offences as part of a “common enterprise” on 14th September, 2015. The

learned Judge reprised that evidence in his ruling and expressly referred to those aspects of it that he was accepting, while declining

to take account of other aspects for the reasons stated. It is thus demonstrably clear from Kelly P.’s treatment of the evidence that

he satisfied himself that very significant matters had been put before him and that he was satisfied that two at least of the six

requirements set out in s. 2(2) were met for the purposes of the test for refusal of bail as set down in s.2(1) of the 1997 Act. In the

context of his assessment of the objection to bail pursuant to s.2(2)(b), Kelly P. stated that that would be addressed in the context

of “certain evidence” which he went on to address, namely that of Chief Superintendent Sheahan.

55. Having appraised the ruling, I am firstly satisfied that the learned President of the High Court placed Chief Superintendent

Sheahan’s belief in its proper context, namely as evidence given in the context of the s.2 objection to bail. At no stage did the

learned Judge indicate or intimate that the Chief Superintendent’s belief could, without more, sustain a refusal of bail. I note that the

learned Judge was at pains to point out that he was in no way bound to accept the Chief Superintendent’s evidence and indicated

circumstances whereby evidence such as that given by the Chief Superintendent might be rejected. That militates against any

suggestion that pursuant to s.2A the learned Judge believed himself compelled to accept the belief evidence tendered by Chief

Superintendent Sheahan. However, the learned Judge found no deficit in the manner of its giving as would mandate it to be rejected

as evidence given without due care or attention. Kelly P. outlined the factors upon which he found the opinion to have been

reasonably and responsibly formed. He noted the breadth of the Chief Superintendent’s experience and his length of time in Limerick

and noted that it was his practice to give such belief evidence with “reluctance”. He had regard to the evidence tendered by the

Chief Superintendent as to the latter’s belief of the pivotal role played by the applicant in facilitating maverick dissident republican

activities by reference to the Chief Superintendent’s own knowledge as a very experienced divisional officer for Limerick City and

County and by reference to information he received on the ground in Limerick from officers under his command and from the Crime and

Security branch. Given Chief Superintendent Sheahan’s own knowledge of the applicant and his association with known dissident

republicans, it cannot, in my view be contended that the evidence he led was a case of bare belief.

56. In the course of his ruling, Kelly P. went on to state that the weight he would afford the Chief Superintendent’s evidence would

have to be tempered by the fact that privilege was asserted over some aspects of the Chief Superintendent’s evidence and this had

rendered nugatory the applicant’s counsel’s ability to cross-examine on those particular aspects.

57. The nub of the applicant’s contention that s.2A should be declared unconstitutional appears to be based on the final portion of

Kelly P’s ruling, which the applicant contends bears out the hypothetical situation referred to by Birmingham J. in CMcD. To my mind,

having regard to the entire evidence which was led before Kelly P., and the manner of its addressing, counsel for the applicant’s

categorisation of the final portion of the ruling as an unequivocal reliance by Kelly P. on Chief Superintendent Sheahan’s belief as a

stand alone ground for refusing bail is an unmeritorious attempt to deconstruct the analysis which the learned President of the High

Court applied to the s.2 objection to bail.

58. I am satisfied from a reading of the ruling overall that Chief Superintendent’s Sheehan’s belief was treated by Kelly J. in

accordance with the statutory confines of s.2A for the purpose of the s.2 objection to bail. It was not afforded any higher status in

the ruling. Ultimately, however, it prevailed for the reasons set out by Kelly P. Counsel for the respondent submitted that if it was

considered to be the decisive evidence ultimately, then Kelly P. was entitled to so hold and there was nothing unconstitutional in that

approach. I am in agreement with this general proposition, although the Court declines to comment on the weighing exercise engaged

in by Kelly P. (or indeed the upholding of the asserted privilege) as the merits of the ruling are not matters for this Court to adjudicate

upon.

59. For completeness, I should say that as regards the third principal plank of the applicant’s constitutional challenge to s.2A, namely

that the section permits the bail court to elevate the belief of the Chief Superintendent to the status of meeting the necessary

statutory threshold for refusing bail, I am satisfied that this challenge has not been made out. It is entirely evident from his ruling that

Kelly P. did not accord it such status and that bail was refused to the applicant because the learned President of the High Court was

of the view that the refusal of bail was reasonably necessary to prevent the commission of an offence.

60. Accordingly, for the purposes of the within proceedings, I am satisfied that Kelly P. applied the test for bail as set out in s.2 (1)

and (2) of the 1997 Act and that he did not indicate either expressly or impliedly (by the manner of his ruling) that he was compelled

to conclude that refusal of bail was reasonably necessary because of the evidence offered by Chief Superintendent Sheahan.

61. Accordingly, I do not find that the challenge to the constitutionality of s.2 and s.2A of the 1997 Act has been made out.