Court of Appeal allows appeal against conviction for IRA membership due to unsafe evidence and flawed reasoning.

THE COURT OF APPEAL

27/2017

Mahon J.

Edwards J.

Hedigan J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PLAINTIFF/RESPONDENT

AND

DARREN WELDON

DEFENDANT/APPELLANT

Judgment of the Court delivered on the 27th day of June, 2018 by

Mr. Justice Hedigan

Nature of the Appeal

1. The appellant was convicted by the Special Criminal Court of the sole count of membership of an unlawful organisation, that being

the Irish Republican Army, otherwise the I.R.A, otherwise Óglaigh na hÉireann, contrary to s.21 of the Offences Against the State

Act, 1939. The appellant was sentenced on the 15th of December 2016 to five years imprisonment with 12 months suspended. The

appellant puts forward 24 grounds of appeal against conviction.

Background

2. The appellant was brought before the court arising from an incident which took place on the 22nd of February 2010 at Newry

courthouse, County Down. Between 10-10.30 pm, a number of people observed a car parked at the courthouse entrance, which then

reversed and backed-up against the gate of the entrance. Sergeant Patterson and Sergeant Gilmore of the Police Service of Northern

Ireland then arrived on the scene.

Somewhere around 10pm, two phone calls were made by a caller who did not identify himself but did say “This is the real

IRA”. The calls were made to the Canal Court Hotel in Newry, and to the Daisy Hill Hospital, also in Newry, to say that

there was a bomb in Newry courthouse that would detonate within 30 minutes. A code word was also provided.

A bomb exploded in the vehicle outside the courthouse around 10.35pm.

3. An investigation subsequently took place, which found that the vehicle in question was a brown Mazda 6, which was unlawfully

taken from a residential area in County Dublin between the 2-3rd of January 2010. The car’s registration number was 09D7439,

however a different registration number was found at the scene of the bombing. The car was owned by a financial institution but was

in possession of a staff member at the time it was taken. The registration number 09MH2297 found at the scene of the bombing could

be linked to a different vehicle, a Peugeot Partner van which was owned by a limited company.

4. In October 2014, Detective Superintendent Thomas Maguire became aware of information which gave him reason to believe or

suspect that the appellant was connected with the courthouse bombing. A warrant was successfully obtained under s.29 of the

Offences Against the State Act by Detective Sergeant Padraig Boyce to search a residential premises at Boyne View, Trim, County

Meath. Detective Sergeant Boyce and Detective Garda Kieran Regan arrested the appellant outside the premises on the 14th of

October 2014 under s.30 of the Offences Against the State Act, 1939 on the suspicion of two offences, those being membership of

an unlawful organisation, the I.R.A, and for possession of explosives on the 22nd of February 2010. The appellant was detained in

Finglas Garda Station under s.30 where photographs, fingerprints and forensic evidence was taken, including buccal swabs which were

then sent to the Forensic Science Laboratory in Dublin.

5. The appellant was interviewed on six occasions. He was questioned in relation to the vehicle used in the explosion in Newry and in

relation to the theft of that vehicle. He was subsequently interviewed about membership of an unlawful organisation, being the I.R.A.

He denied being or having ever been a member of that organisation. He obtained legal advice and had a solicitor present with him

during each interview.

6. The forensic samples taken were compared with samples taken from the vehicle number plate found at the scene of the explosion

outside the Newry courthouse. At trial, prosecution evidence was that the possibility of an error in finding the matching DNA profiles

that they did, which linked the appellant to the scene in Newry, is less than one in one thousand million.

7. At trial, Chief Superintendent Peter Kirwan gave evidence of belief that the appellant was a member of an unlawful organisation. He

claimed privilege over the sources of his belief evidence on the grounds of state security, protection of life and property and ongoing

operations. He was not prepared to reveal where his sources came from and upon what his beliefs were based. In the court’s

judgment, it was accepted that his belief evidence was based on confidential information available to him and not based on any

conduct or statements made during the investigation nor upon the attendance of the appellant of the funeral of the late Alan Ryan in

2012, a man who had a conviction before the Special Criminal Court for unlawful activity connected to the same unlawful

organisation. The Chief Superintendent also stated that his opinion evidence was not based on DNA evidence.

8. The court referred to s. 3(2) of the Offences Against the State (Amendment) Act, 1972, which states:

"Where an officer of the Garda Síochána, 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."

The court considered the Supreme Court case of Redmond v Ireland [2015] IESC 98 which held that the interpretation of s. 3(2) of

the 1972 Act is that there is a requirement that belief evidence be supported by other credible independent evidence.

9. The court accepted the belief evidence and was satisfied that there were no issues surrounding the arrest of the appellant

pursuant to s.30 of the Offences Against the State Act, 1939, nor were there issues surrounding the circumstantial evidence provided

by the prosecution. The court held:

‘The Court has weighed and evaluated the various strands of evidence set out above and has concluded that all strands

of evidence relied on by the Court as outlined above point only in the direction of guilt. On the totality of this evidence, it

cannot discern a reasonable possibility consistent with the proposition that the accused is innocent of the charge of

membership of an unlawful organisation. None of the individual components would perhaps be enough on their own to

convict the accused of this offence but the combination identified by the Court above together with the particular weight

of the DNA evidence is sufficient to convince this Court that it is proper to convict the accused of the single offence on

the indictment.’

Personal Circumstances

10. The appellant was born in August 1971, making him 47 years of age. He was 46 years old when convicted. He is originally from

Kilbarrack, County Dublin but was living in Trim, County Meath when arrested. He had previously worked as a taxi driver, and a floor

and carpet fitter. He has no previous convictions.

Sentence

11. The court imposed a headline sentence of six years but reduced by one year due to the mitigating factors of the appellant’s

previous good character, consideration of his future prospects, and the appellant’s approach to the trial. It was pleaded in mitigation

that the appellant had a long history of consistent employment and that he has been law abiding until he appeared before the court

at the age of 46.

12. A further year was suspended on the conditions that the appellant enter into a bond of €300 to keep the peace and to be of good

behaviour while in prison and for two years post release.

Grounds of Appeal

13. Counsel for the appellant in their submission put forward the following grounds of appeal:

14. The trial court erred in that it:

(i) misdirected itself in law and in fact in holding that the refusal by the Chief Superintendent to provide details underlying

his belief as to membership of an unlawful organisation was irrelevant to the weight to be given to that opinion.

(ii) erred in law and in fact in holding that the failure of the Chief Superintendent to address explanations given by the

accused in relation to alleged associations or activity was irrelevant to the weight to be given to the belief evidence of

the Chief Superintendent.

(iii) erred in law and in fact in holding that the relevance of denials by a suspected person is confined to the deployment

of such matters to challenge the accuracy or weight of the belief of the Chief Superintendent, and by impliedly holding

that there was an obligation on an accused person to put these matters to the Chief Superintendent in cross

examination.

(iv) erred in law and in fact in confusing the finding that the Detective Chief Superintendent honestly and genuinely held a

belief as to membership with their obligation to assess the appropriate weight to be given to that belief in the

circumstances of the case.

(v) erred in law and in fact in holding that the Court could attach no weight to answers given by the Accused in interview

in 2012 and 2014 in which he denied membership of the IRA and in further holding that these denials could be nullified by

failure of the Accused to explain certain matters.

(vi) erred in law and in fact in holding that belief evidence given by the Chief Superintendent could have been devalued

by cross examination in circumstances where there was a complete and absolute refusal by the Chief Superintendent to

give even the most general details in relation to the basis for his belief whereby he effectively insulated himself from cross

examination.

(vii) erred in holding that witnesses had identified the number plate produced in court as the item to which they had

previously dealt with when, in fact, they had merely identified their signatures on an associated form.

(viii) erred in law and in fact and misdirected itself in holding that there was an obligation on the defence to put to two

different witnesses the fact that the number plate recovered from the scene of the explosion and the number plate in

court appeared to be materially different and in holding that there was an obligation to seek comment from the

prosecution witnesses in relation to same.

(ix) erred in holding that there were only two inferences available to the court in relation to the significant and material

differences between the number plate photographed at the scene and the number plate produced in court and, further,

misdirected itself in holding that there was no reasonable possibility that Chloe Holland had swabbed an object different to

the one produced in court.

(x) erred in law and in fact in speculating that the appearance and makeup of the number plate had undergone change as

a result of forensic tests when there was no evidence whatsoever in the course of the trial to support such a finding.

(xi) erred in law and in fact in finding that the concessions made by the expert for the prosecution that the DNA found on

the number plate could have arrived by primary, secondary or tertiary distribution and that it was not possible to say

what type of cellular material the DNA trace comprised of was irrelevant and not important, and in further finding that the

presence of DNA on the number plate put the accused in sufficient proximity to the activities of an unlawful organisation

to provide independent and credible support for the opinion of the Chief Superintendent.

(xii) erred in law and in fact in finding that the admissibility of the DNA evidence was not affected by the fact that the

laboratory staff member who activated the process by which the swabs were analysed for DNA was not produced to give

evidence by the prosecution and that the chain of evidence in relation to the swabs containing DNA material was

incomplete.

(xiii) misdirected itself in law and in fact in finding that the presence on the Appellant’s phone of a photograph of Alan

Ryan with a certain legend was evidence only open to the inference that the Appellant identified himself with the opinions

and activities of the said Alan Ryan.

(xiv) misdirected itself in law and fact in holding that the presence of the photograph on the Appellant’s phone served to

eliminate the possibility that the finding of the DNA on the false number plate was coincidence.

(xv) erred in holding that the said photograph constituted an incriminating document in relation to an unlawful

organisation within the meaning of the provision of Section 24 of the Offences Against the State Act 1939 and that the

possession of this photograph was evidence of membership by him of that organisation in October 2014.

(xvi) erred in fact in finding that there were two further photographs on the Accused phones which showed him in

company with two other individuals who had criminal convictions for membership of the same unlawful organisation. No

such evidence was given in the course of the trial.

(xvii) erred in law and in fact in finding that the photographs on the accused’s mobile phone relied upon by the

prosecution constituted evidence of association capable of corroborating the belief evidence of the Chief Superintendent.

(xviii) erred in fact in finding that the accused elected to retain a photograph of Alan Ryan on his phone.

(xix) erred in law and in fact in finding that the evidence of observations and activities of the accused on the 18th of

January 2013 was corroborative evidence of association, in circumstances where this evidence was not probative and

was not described in any detail whatever in the judgment of the Court.

(xx) erred in fact in holding that the explosive device in question was housed in a vehicle that had been stolen in Dublin

some days earlier.

(xxi) erred in law in the manner in which it approached the concept of circumstantial evidence.

(xxii) erred in law and in fact in holding that the arrest of the Appellant pursuant to Section 30 Offences Against the

State Act 1939 for the offence of membership of an unlawful organisation was lawful in circumstances where no

application had been made to court for a warrant to support such an arrest.

(xxiii) erred in law and in fact in holding that forensic samples were lawfully taken from the Appellant during the course of

his detention pursuant to Section 30 of the Offences Against the State Act, 1939.

(xxiv) erred in law and in fact in failing to direct a verdict of not guilty at the conclusion of the prosecution case.

Submissions of the Appellant:

15. The appellant submits that the court erred in law in its holdings surrounding the failure of the Chief Superintendent to provide any

explanation of the basis of his belief evidence, in the weight the court attached to the belief evidence, and in the manner in which

the appellant’s denials of membership were considered when questioned in 2012 and 2014. The court outlined the difficulty in

determining the weight to be attached to denials of unlawful membership in interviews:

‘There is always a difficulty in attaching weight to such out of court assertions as they are unsworn and, more

importantly, not subject to probing and cross-examination in the same way as sworn testimony in court. The Court

attaches no weight to interview answers in this case because it has other evidence relating to such assertions made by

the accused which nullify the potential value of material of this kind.’

16. The appellant submits that the court erred in law in holding that no weight could be attached to answers given by the appellant in

interviews in which he denied membership of an unlawful organisation. It is submitted that by stating that there is always a difficulty

in attaching weight to denials of membership, the court is adopting a fixed policy on the issue, which has an obvious influence on the

court’s consideration of the statements.

17. The appellant submits that vehicle registration plate that was produced at trial was materially different to the number plate

photographed at the scene of the explosion and that no evidence was given to explain this inconsistency. The appellant submits that

the evidence surrounding the registration number plate was unreliable.

18. On day 6 of the trial, James Forbes, the lead Police Service of Northern Ireland (PSNI) Exhibits and Disclosure Officer in relation to

the explosion in Newry gave evidence. He explained that in April 2010 he collected certain exhibits, DNA swabs, from the laboratory at

Forensic Science Northern Ireland. The following day, he placed the swabs in storage at Ladas Drive, a PSNI station, for transporting

to Forensic Science Service in England. On day 7, Sally Hill, a forensic scientist from the Forensic Science Service laboratory which

received the swabs, gave evidence about the method of delivery of the DNA swabs. She explained that the usual method of delivery

would be via courier and that paperwork would be signed to affirm continuity of travel. She confirmed that the paperwork in relation

to the swabs was not signed for, and that this was unusual. At trial, counsel for the defence described this as a “serious flaw”. The

court ruled:

‘The Court believes that in this day and age the absence of a courier who brought the item from the North of Ireland to

the laboratory in the north of England or indeed the absence, because we have the oversight evidence of Ms Hill, of the

person who actually performed the physical task of putting the swab into the puncher which begins the process, the

mechanical analysis of the physical exhibit to produce the representation which is the DNA profile. The Court does not

consider that either of those items are necessary nor does it consider that the admissibility of the DNA evidence is in any

way affected by those matters.’

The appellant submits that the court erred in finding that the matters raised in the direction application, including in

particular the question as to the integrity of the DNA evidence which was said to have been the source of the DNA

evidence against the appellant were essentially matters of weight for the court.

19. Evidence of material on the appellant’s mobile phone was produced at trial, including a photograph of the late Alan Ryan, who had

previously been convicted in the Special Criminal Court. The court addressed this in the following manner:

‘... the Court discounts what Mr Hartnett accurately described as the mawkishly sentimental memorial material in relation

to the late Alan Ryan.. the Court does not take the same view of the retention on this mobile phone of a photograph of

the deceased Alan Ryan with the legend quote, "Heroes are the people who do what has to be done when it needs to be

done regardless of the consequence." This is not material expressing sadness on the passing of an acquaintance or

memorialising that fact and in the view of this Court is not open to any other meaning but that the possessor of this

material identify themselves with the opinions and activities of the deceased in question.’

20. The appellant submits that this inference by the court was made in error. The appellant refers to s.2 of the Offences Against the

State Act, 1939, which defines an “incriminating document” as:

‘a document of whatsoever date, or bearing no date, issued by or emanating from an unlawful organisation or appearing to

be so issued or so to emanate or purporting or appearing to aid or abet any such organisation or calculated to promote

the formation of an unlawful organisation’.

21. The appellant submits that there was no evidence to suggest that the photographs in question were incriminating documents or

that the photographs were evidence open to the inference made by the court. Moreover, of the three photos, the first was correctly

ignored by the court. The second and third however were. In relation to the third photo the court ruled ;

“Similar observations apply in relation to two further photographs found on the accused’s phone whereby he was

photographed in company with two other individuals who have criminal convictions for the same unlawful organisation. It

may well be that the legitimate bounds of friendship might include one person who happened to be a member of an

unlawful organisation. But, evidence of association with a number of such persons begins to take on a different

complexion. Now, once again whilst this might not be in itself sufficient to satisfy the Court beyond reasonable doubt that

the accused was a member of an unlawful organisation, when taken in conjunction with the other evidence it likewise

supports the conclusion that the belief evidence is correct and that the DNA evidence is not the product of random

coincidence.”

22. The appellant submits that the court erred in failing to follow the direction application from the defence and in its consideration of

the integrity of the DNA evidence. It is submitted that is has not been clearly established how the DNA evidence which was said to

have linked the appellant with the explosion in Newry is corroborative with the belief evidence of membership of an unlawful

organisation relied on at trial. The appellant submits that no jury of tribunal or fact properly charged could safely convict on the

evidence provided in this case.

Submissions of the Respondent:

23. In relation to grounds of appeal 1-6, the respondent submits that the court was well placed to assess the credibility of the belief

evidence of Chief Superintendent Kirwan and that it was entitled to accept or reject the belief evidence accordingly. It is submitted

that the Chief Superintendent is an experienced, highly ranked officer who is in a position to provide such evidence.

24. The respondent submits that the nature of the information that the Chief Superintendent’s belief evidence was based upon gave

rise to a well-founded claim of privilege. The court was entitled to accept or reject the witnesses’ reasoning for claiming privilege over

the nature of his sources.

25. Regarding grounds of appeal 3,4 and 5, the respondent submits that the fact that the appellant denied being a member of an

unlawful organisation, the I.R.A, in 2012 and 2014 is not in itself of material value in the assessment of whether or not he was in fact

a member. As to whether the Chief Superintendent’s belief evidence as to membership was honestly and genuinely held, the court

accepted “beyond reasonable doubt the of veracity of Chief Superintendent and the fact that he holds the belief in relation to the

accused on the limited basis outlined in evidence”. The respondent submits that this point was well considered by the court and was

not in error.

26. On grounds 7-10, the respondent submits that the only relevant question surrounding the vehicle registration number plate was

whether the number plate examined by the relevant experts at the time they examined it is the same number plate which had been

removed from the scene of the explosion in Newry. The respondent does not accept the appellant’s argument that it was not the

same registration number plate. It is submitted that the court was correct in deciding that there was no reasonable possibility that

the registration number plate that was swabbed for DNA evidence was a different number plate to the one produced as evidence in

court.

27. In relation to grounds 11-12, concerning DNA evidence, the respondent submits that the court was correct in ruling that there

was no reason giving rise to doubt over the results of the forensic analysis of the DNA evidence. The court held that the handling of

the DNA evidence did not give rise to reasonable doubt over the integrity of the evidence.

28. Grounds 13-18 relate to material found on the accused’s phone, including a photograph of Alan Ryan, deceased, with a legend

which was held to be an incriminating document within the meaning of the provisions of s. 24 of the Offences Against the State Act,

1939, a photograph of his brother Vincent Ryan, and of Philip Forsyth. The court took the view that the possession of the

photograph, along with the imposed legend on the photograph of Alan Ryan, could only be construed in a way to show that the

possessor, the appellant, identified himself with the views and activities of the aforementioned individuals. Therefore, the court held

that such documentation could be seen as independent evidence to support the belief evidence of the Chief Superintendent of

unlawful membership.

29. S. 24 of the Offences Against the State Act, 1939, provides as follows:-

‘On the trial of a person charged with the offence of being a member of an unlawful organisation, proof to the satisfaction

of the court that an incriminating document relating to the said organisation was found on such person or in his

possession or on lands or in premises owned or occupied by him or under his control shall, without more, be evidence until

the contrary is proved that such person was a member of the said organisation at the time alleged in the said charge.’

Thus, no error can be identified in this regard.

30. Ground 19 concerns the activity of the appellant on the 18th of January 2013, where he is said to have travelled in a vehicle with

Declan Smith to the Red Cow Inn. The appellant had been questioned about his meeting with Declan Smith and whether he met him in

the capacity of an I.R.A member. The appellant made no reply to this.

31. The court found the observation evidence in relation to this interaction to be corroborative evidence of association. It is

submitted that the court made no error in this regard. No injustice was caused to the appellant as there was sufficient other evidence

considered by the court to convict.

32. Ground 20 concerns the theft of the vehicle involved in the Newry courthouse explosion. The appellant contends that the court

erred in holding that the explosive device used was kept in a vehicle that was taken from a residential area in Dublin days or weeks

before the bombing. It was heard in evidence that the vehicle was taken from outside a residential property in the early hours of the

2nd of January 2010. The appellant challenges the finding that the bombing in Newry took place “days” after this, as the explosion

took place some seven weeks later on the 22nd of February. The respondent submits that this is beside the point, and that the

material fact is that the vehicle in which the explosive device was stored bore a false registration number plate which in fact belonged

to a different vehicle entirely.

33. Ground 21 concerns the courts approach to circumstantial evidence. The respondent argues that the court was correct in its

approach and relies upon the judgment in DPP v Cahill [2001] 3 IR 494, where the Court of Criminal Appeal stated:

‘The law was …. More acceptably stated by Pollock C.B. in R v Exall (1866) 4 F. an F. 922 at p. 929 as follows:-

“There may be a combination of circumstances, no one of which would raise a reasonable conviction or more than a

mere suspicion; but…. Taken together may create a conclusion of guilt ….. with as much certainty as human affairs

require or admit of.’

The respondent submits that the circumstantial evidence was considered properly by the court and that no error

occurred in this regard.

34. Ground 22 concerns the appellant’s arrest under s.30 of the Offences Against the State Act, 1939. The appellant argues that

s.30A prohibits subsequent arrests of a person for membership without a warrant by reason that the offence of membership is a

“continuing offence”. The respondent submits that the correct approach is to “examine whether the circumstances, facts or events

that gave rise to the suspicion on which the later arrest was based had happened or come about at the time of the previous arrest” (

DPP v AB [2015] IECA 139). The respondent notes the statement of the trial court that “it was the evaluation and judgment of this

Court that the matters are entirely separate and distinct, so that the prohibition on the second arrest mentioned in the section does

not arise in the sense of being required to be judicially mandated by a warrant of the District Court”. Thus, the respondent argues

that there was no error in that regard.

35. Ground 23 concerns the forensic samples taken from the appellant. The samples were authorised to be taken by Detective

Superintendent Thomas Maguire under s.2(4) of the Criminal Justice (Forensic Evidence) Act, 1992. The appellant contends that the

samples were not lawfully taken due to issues of authorisation.

36. The court made reference to the Supreme Court case of DPP v Damache [2012] IESC 11 in reference to the balancing of rights

between the accused with the interests of the state. The court held that authorisation was properly exercised and the respondent

argues that there was no error in this regard.

37. Ground 24 of appeal concerns the court’s ruling in relation to the direction application. At trial, the court applied the legal test as

referred to in DPP v J.R.M. [2015] IECA 65 concerning the Galbraith principles, where it was stated:

‘.. even if the prosecution’s evidence contains inherent weaknesses, or is vague, or contains significant inconsistencies, it

is for the jury to assess that evidence and make of it what they will, unless the state of the evidence is so infirm that no

jury, properly directed, could convict upon it. Accordingly, what Galbraith is in fact concerned with is fairness.’

38. The respondent argues that a jury or tribunal of fact properly charged could convict on the evidence presented in this case and

the same is true mutatis mutandis for the Special Criminal Court.

Decision

39. The conviction of the appellant was based upon a combination of evidence. There was before the court the opinion of Chief

Superintendent Peter Kirwan that the appellant was a member of an unlawful organisation. He stated his belief was based on

confidential information available to him. It was not based upon any conduct or statements made by him during the course of the

investigation nor upon the appellant’s attendance at the funeral of Alan Ryan. There was supporting evidence of DNA swabs linking

the appellant with the registration plate found on the car that contained the bomb. There was also supporting evidence of the

presence of three photos on the appellant’s iPhone linking him, the Court found, with two other men who had been convicted for

membership of the same unlawful organisation.

40. With regard to the Chief Superintendent’s belief evidence, this was provided for under the provisions of s. 3(2) of the Offences

against the State (Amendment) Act 1972 which provides as follows;

“Where an officer of the Garda Síochána, 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.”

41. This category of evidence is required to be supported by other credible independent evidence. See Redmond v. Ireland [2015]

IESC 98 where the Supreme Court held that the belief evidence of a Chief Superintendent must be supported by other evidence that

implicates the accused in the offence charged, is credible in itself and is independent of the witness giving the belief evidence. It was

held by the Supreme Court that;

“(i) That a constitutional construction of s. 3(2) of the Act of 1972 required that the belief evidence of a Chief

Superintendent Garda be supported by some other evidence implicating the accused in the offence charged, which other

evidence must be seen by the trial court as credible in itself, and had to be independent of the witness giving the belief

evidence.

(ii) That s. 3(2) of the Act of 1972 would not be consistent with the Constitution if it permitted the conviction of a

person solely on the basis of opinion evidence, in particular if privilege was successfully asserted over the material leading

to the formation of the opinion. Such would exclude any examinable reality from the case and undermine any potential

avenue of challenge to the opinion evidence, subverting the prospect of useful cross examination by the accused.

(iii) That elementary justice required that a person who was liable to some sanction or imposition, based on how a factual

issue was resolved before a body, tribunal or committee obliged to proceed in accordance with natural justice, was

entitled to confront his accusers and to cross examine them or have them cross examined. To that end, an accused

person had the right to be made aware of the material necessary for a proper cross examination. In the case of a trial in

which evidence was admissible pursuant to s. 3(2) it was inevitably the case that this material would be withheld by the

invocation of privilege. Deprivation of the potential to cross examine on the witness’s previous statements could hamper

and possibly subvert the right to cross examine.

(iv) That s. 3(2) of the Act of 1972 did not attempt to require a court of trial to place any particular weight upon the

evidence before it or to interpret it in any particular way. The interpretation of the belief evidence and the other evidence

in the trial was a matter for the court of trial as the relative importance attached to the two types of evidence would

vary between one case and another.”

42. Thus there must be supporting evidence capable of convincing the court beyond any reasonable doubt that an accused is guilty

of the charge of membership of an unlawful organisation. No presumption of special merit attaches to the evidence of such a witness.

This is a very special evidential provision and one that must therefore attract the closest scrutiny by the court. The ability of an

accused to challenge his accuser is greatly diminished by s. 3(2) and the court should examine with great care the evidence proffered

by the court in support of such evidence. The judgment of the Special Criminal Court herein expressed this view very clearly starting

at p.2 of the judgment delivered on the 15th December 2016;

“It is of course correct to suggest that the use of belief evidence coupled with claims of privilege severely limits the

ability of the accused to test and probe by cross examination a witness offering such evidence. This limitation is well

known and it has been acknowledged in this case and in many judgments of the Superior Courts. It represents a

considerable deficit with potential for unfairness in a system where such issues are ordinarily determined after an

adversarial conflict and a full testing of the evidence and the basis for the holding of such a belief. However, belief

evidence is not automatically discounted on this basis and such evidence may still be devalued even by limited cross

examination. The recognised potential unfairness of a trial where defence counsel is hampered in this way is met by the

requirement that a trial in due course of law must firmly exclude the possibility that an accused could be convicted solely

on such belief evidence. These deficits and the potential unfairness must be overcome by the production by the

prosecution of credible evidence independent of the evidence of belief that implicates the accused in the alleged offence

of membership. Therefore there must be objective support for the expressed belief extending beyond a simple finding by a

court that it is honestly and genuinely held by the officer in question. Consequently there must be a combination of belief

and other supporting evidence that leaves a court with no reasonable possibility other than that the accused was a

member of an unlawful organisation on the relevant date.”

This Court fully endorses that outline of the law relating to belief evidence.

43. In this case the supporting evidence was as noted above. Firstly the Court accepted the DNA evidence taken from the

registration plate on the car that carried the bomb linking it to the DNA profile of the accused. In the light of this Court’s finding later

on it will not be necessary to go into the grounds of appeal relating to the DNA evidence any further at this point.

44. The next strand dealt with by the Special Criminal Court was the evidence found on the accused’s mobile phone. There were

three photos to which the Special Criminal Court referred. The first of these contained somewhat sentimental memorial content

relating to the late Alan Ryan. The Court discounted that. The Court did however take into account the other two. The first of these

was of Alan Ryan but this one was accompanied by the legend “heroes are the people who do what has to be done when it needs to

be done regardless of the consequences”. This was regarded by the Court as evidence of the accused’s support and association with

the late Alan Ryan who was notable only for his conviction for membership of an unlawful organisation arising out of his participation in

a subversive training camp. The Court’s finding in respect of this evidence was as follows;

“Of course, taken on its own this material would not be sufficient to convict the accused of membership of an unlawful

organisation. But, the Court is completely satisfied that possession of this document is independent support for the

opinion of the Chief Superintendent that the accused was a member of an unlawful organisation and that this membership

subsisted at the time when the phone was taken in October 2014. Approval in the foregoing terms of the person and

activities of the late Alan Ryan also serves to eliminate any remaining notion that the finding of DNA matching that of the

accused on a false number plate placed on a vehicle used to house a bomb detonated by an unlawful organisation was a

sort of unfortunate coincidence. On a quite separate statutory basis the Court is also entitled to conclude that this

material constitutes an incriminating document in relation to the unlawful organisation in question within the meaning of

the provisions of s. 24 of the 1939 Act, the possession of which by the accused is prima facie evidence of membership by

him of that organisation in October 2014. The Court sees nothing to the contrary on the body of evidence before us.”

We agree with the Special Criminal Court in this finding and upon its significance in the combination of evidence and that it is further

support for the belief evidence of Chief Superintendent Kirwan.

45. However, we consider the third piece of evidence ultimately is the crux of this appeal. In relation to this photo, the Special

Criminal Court found as follows;

“Similar observations apply in relation to two further photographs found on the accused’s phone whereby he was

photographed in company with two other individuals who have criminal convictions for membership of the same unlawful

organisation. It may well be that the legitimate bounds of friendship might include one person who happened to be a

member of an unlawful organisation. But, evidence of association with a number of such persons begins to take on a

different complexion. Now, once again whilst this might not be in itself sufficient to satisfy the Court beyond reasonable

doubt that the accused was a member of an unlawful organisation when taken in conjunction with the other evidence it

likewise supports the conclusion that the belief evidence is correct and that the DNA evidence is not the product of

random coincidence. The Court takes the same view of the evidence relating to the association and activities of the

accused disclosed by the various officers who observed and described the activities of the accused at various locations

and times on the night of the 18th January 2013.”

This finding is regrettably factually incorrect. There was in fact just one photo including the two men in question. This photo is of

Vincent Ryan and Philip Forsyth. The accused is not in the photo. Moreover neither of these two were convicted of membership of an

unlawful organisation. In a case where a combination of belief evidence, DNA evidence and two different photos such as herein is

involved, it is difficult to know which particular piece of evidence is conclusive and which is not. The structure of the conclusion is

hard to reliably disassemble because the weight of each piece of evidence is difficult to gauge. The Court recognised this difficulty in

the final paragraph of its decision where it stated;

“The Court has weighed and evaluated the various strands of evidence set out above and has concluded that all strands

of evidence relied on by the Court as outlined above point only in the direction of guilt. On the totality of this evidence, it

cannot discern a reasonable possibility consistent with the proposition that the accused is innocent of the charge of

membership of an unlawful organisation. None of the individual components would perhaps be enough on their own to

convict the accused of this offence but the combination identified by the Court above together with the particular weight

of the DNA evidence is sufficient to convince this Court that it is proper to convict the accused of the single offence on

the indictment.”

46. Extracting one of the key strands from the totality of the evidence leaves a substantial gap in the reasoning of the Court. For this

reason we consider that the conviction is unsafe and we must allow the appeal.