Supreme Court dismisses appeal where cross-examination restriction on Garda evidence of unlawful organisation membership is justified.

THE SUPREME COURT

No. 418/05

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN KELLY

Appellant

JUDGMENT of MR JUSTICE FENNELLY delivered on the 4th day of April, 2006.

1. This appeal comes to the Court by way of a certificate of the Court of Criminal Appeal pursuant to section 29 of The Courts of

Justice Act, 1924. It concerns the restriction on effectiveness of the right to cross-examine a Chief Superintendent of An Garda

Síochána who gives evidence of his belief that a person is a member of an unlawful organisation, but claims privilege as to the sources

of his knowledge. Unlike other similar appeals, no point other than the certified one was argued on the appeal in this case.

The Trial

2. The appellant was charged before the Special Criminal Court with membership of an unlawful organisation contrary to section 21 of

the Offences Against the State Act, 1939, as amended in respect of penalty, by section 2 of the Criminal Law Act, 1976. He was

convicted on 19th November 2003 and sentenced to four years imprisonment. He had been released before the hearing of his appeal

to this Court. His application for leave to appeal was rejected by the Court of Criminal Appeal on 29th April 2005. That Court,

nonetheless, certified the following question for this Court pursuant to the aforementioned section:

"Are the requirements of Article 38 of the Constitution satisfied where an accused is precluded from enquiring into the basis of

the evidence of belief given against him at his trial, pursuant to the provisions of the Offences Against the State Act, 1939, as

amended, on a charge of membership of an unlawful organisation before the Special Criminal Court?”

3. The prosecution evidence was not limited to the special evidence of belief of a Chief Superintendent, as has frequently happened

in the past. Counsel for the prosecution summarises that evidence as follows:

(a) The evidence of David Mooney that the accused on 27th May 2002 expressly represented himself and his co-accused as

being connected with the IRA, and thereafter did so by implication in that he accepted money proffered by Mr Mooney and

others on foot of that representation;

(b) The connection between the accused and his co-accused (William Clare), who pleaded guilty to the charge, who was

represented by the appellant as a “top man” involved with the IRA;

(c) The conduct of the accused pursuant to sec 3(1)(a) of the Offences Against the State (Amendment) Act, 1972 (as

inserted by section 4 of the Offences Against the State (Amendment) Act , 1998;

(d) The belief offered by Chief Superintendent Kelly (independent of any other evidence in the trial) pursuant to section 3(2) of

the Offences Against the State (Amendment) Act , 1972 that on the 29th day of July 2002 the appellant was a member of the

IRA;

(e) The answers given by the appellant whilst in Garda custody following the invocation of section 2 of the Offences Against

the State (Amendment) Act, 1998.

4. There was, thus, general evidence, which I will summarise briefly but only to show that it was there and formed an important part

of the case. The Chief Superintendent, as has generally happened, claimed privilege as to the basis of his belief. The appellant gave

evidence denying that he had ever been a member of an unlawful organisation.

5. The appellant was tried with a co-accused, William Clare, who pleaded guilty to a charge of membership of an unlawful organisation

on the fifth day of the trial. The general evidence against the appellant revolved very much about his association with Mr Clare. Mr

David Mooney gave evidence that he returned to Ireland from abroad and of wishing, with others, to open a lap-dancing club. He said

he received a telephone call from one Patrick Byrne with whom he arranged a meeting. Mr Clare and the accused attended the

meeting together with Mr Byrne. Mr Mooney’s evidence was that he was requested to make a payment to the Continuity IRA to

ensure that his club could open. €50,000 was requested. There was conflicting evidence concerning amounts, though there was

evidence that €5,000 was paid to William Clare and another €5,000 to the appellant.

6. Mr Mooney’s evidence and general credibility were strenuously challenged. He was on a Witness Protection programme. The Special

Criminal Court accepted the evidence of Mr Mooney, noting, in particular, that it was satisfied that “throughout his evidence it was

apparent to the court from his demeanour that he was in fear.” The court was satisfied that “he was indeed in fear of both the

accused [i.e., the appellant] and of the Continuity IRA.” He was accepted as a truthful witness.

7. Mr Patrick Byrne also gave evidence and was also accepted by the Special Criminal Court as being in fear. He was treated as a

hostile witness. Nonetheless, he gave evidence that the appellant described his co-accused, William Clare, as a “top man” using that

expression in relation to the IRA. Mr Byrne said that Mr Clare had said that the money was to be sent “up North” and for the “wives

and children of families whose Dads were in prison.” There was also evidence that the appellant, in interviews after caution with the

Garda Síochána, accepted that he was a friend of William Clare.

8. It is unnecessary to refer to this evidence in any greater detail. It is clear that there was before the Special Criminal Court

significant evidence, which was accepted by that court, of the involvement of the appellant with an unlawful organisation.

9. The Special Criminal Court ruled as follows on the evidence of the Chief Superintendent;

“The court accepts the evidence of Chief Superintendent Kelly as to his belief that the accused was at the material time a

member of an unlawful organisation namely the Irish Republican Army. The witness claimed privilege in respect of his belief

and the sources thereof. The court takes this circumstance into account in assessing the weight to be attributed to his

evidence.”

10. The judgment of the Special Criminal Court concluded with the following sentence:

“On the entire of the evidence adduced before the Court the Court is satisfied beyond reasonable doubt that Martin Kelly is

guilty of the offence with which he is charged.”

11. Based on all of the evidence it had heard, including the evidence of the Chief Superintendent, discussed later in this judgment,

the Special Criminal Court concluded beyond reasonable doubt that the appellant was a guilty of the offence of being a member of an

unlawful organisation.

12. I now turn to the evidence relating to the evidence and legal provisions relating to the question certified by the Court of Criminal

Appeal. Section 21 of the Offences Against the State Act, 1939 established the offence of being a member of an unlawful

organisation. Section 19 provides for the making of Suppression Orders. Such an order was made by the Unlawful Organisation

(Suppression) Order 1939 (S.I. 162 of 1939). These and other relevant statutory provisions were summarised by the Special Criminal

Court in its judgment. No issue has been raised on this appeal concerning any of these matters.

13. Section 3 of the Offences Against the State Act (Amendment) Act, 1972 as amended by section 4 of the Offences Against the

State ( Amendment) Act 1998 provides:

"(1)(a) Any statement made orally, in writing or otherwise, or any conduct, by an accused person implying or leading to a

reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under section

21 of the Act of 1939, be evidence that he was then such a member.

(b) paragraph (a) of this subsection 'conduct' includes—

(i) movements, actions, activities or associations on the part of the accused person, and

(ii) omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the

fact of such denial shall not by itself be conclusive.".

(2) 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.

(3) Subsection (2) of this section shall be in force whenever and for so long only as Part V of the Act of 1939 is in force.”

14. In reliance on subsection 2 of this section, the prosecution led the evidence of Chief Superintendent Philip Kelly, who had served

32 years in the Garda Síochána of which 25 had been spent “involved in the fight against subversion.” He was, at the relevant time,

Chief Superintendent in charge of the Special Detective Unit and was involved in receiving and analysing sensitive information and

intelligence relating to subversion. His evidence against the appellant was as follows:

“I believe that Martin Kelly is within the State a member of an unlawful organisation styling itself the Irish Republican Army,

otherwise the IRA, otherwise Oglaigh na hEireann. And he was a member of that organisation on the 29th July 2002.

Q: Can I ask you Chief Superintendent whether you base that belief on any matter discovered during investigation into the

activities of Martin Kelly at that [sic, recte, “the”] time of after his arrest on the 29th July 2002?

A: I did not base that belief on the arrest of Martin Kelly on the 29th July 2002 or any statements or admissions or conduct of

him at that particular time as a result of that arrest.”

15. This last piece of evidence showed that the prosecution was not duplicating its reliance on what I have called the “general”

evidence against the appellant. It has been held that such evidence should not be given in reliance on direct evidence which could be

produced in court. The Chief Superintendent was cross-examined and confirmed that he had held his belief for approximately six

months prior to 29th July 2002. He was asked for the source of the information sustaining his belief and answered and answered:

“……I cannot disclose the source of my information. I could [sic] like to claim privilege on it, because if I did disclose it, I would

endanger the life of the people that supplied the information. It would also endanger ongoing operations against the IRA.”

16. He added that the sources of his information were both human and non-human. This appears to mean that some information came

from garda sources and some from external sources. Asked to name the persons who were not garda sources, he said: “I couldn’t

disclose the names because to do so will endanger the people’s lives.”

17. The defence did not challenge in any way the evidence of the Chief Superintendent in support of his claim to privilege, based as it

was on the two distinct, though related reasons. Nonetheless, counsel for the accused submitted that the Special Criminal Court

should refuse to permit that claim of privilege, stating that, in order to have a fair trial, the accused must be told the identities of the

informants that went to make up the opinion of the Chief Superintendent. Counsel cited the decision of this Court in Director of Public

Prosecutions v The Special Criminal Court [1999] 1 I.R. 60. Counsel accepted that normally there would be privilege in respect of the

identity of an informer but submitted that the case cited established an exception under the name of “innocence at risk.”

18. In the course of its ruling, the Special Criminal Court stated that it was satisfied that the disclosure of the sources upon which

the Chief Superintendent relied for his belief “would have the effect of endangering ongoing Garda operations against the IRA and

would expose these sources, and particularly non-Garda sources to a real and substantial risk of serious harm or death.” The Court

relied, in making its ruling, on other evidence, mentioned above, of the fact that a number of witnesses before the Court were in a

genuine state of fear for their own safety.

19. The Court cited the dictum of Pollock, C.B. in Attorney General v Bryant [1846] 15 M & W, vol 169 at 185:

"In a public prosecution, a witness cannot be asked such questions as will disclose the informer, if he be a third person.”

20. The Special Criminal Court disallowed the defence objection to the claim of privilege in reliance on the statement of O’Flaherty J in

Director of Public Prosecutions v The Special Criminal Court, cited above. The Court held that, balancing the competing interests of,

on the one hand the public in detecting and deterring crime together with that of informants in their personal safety, and, on the

other hand, the accused in having a fair trial, preference should be given to the former.

The Court of Criminal Appeal

21. The findings of fact made by the Special Criminal Court were reviewed by the Court of Criminal Appeal, which concluded:

“The Court is impressed by the care with which the Special Criminal Court assessed the credibility of the various witnesses,

and the clear way in which it expressed its findings. The Court has no doubt that there is credible evidence upon which such

findings could be made, and on the basis of the principles set out in Hay v O’Grady, this Court would not interfere with the

findings of fact made by the Special Criminal Court.”

22. In the Court of Criminal Appeal, counsel for the appellant did not argue that a claim for privilege should not be entertained but

rather that a fair trial required that there be some investigation as to whether it is reasonable to protect a claim of privilege in any

particular case. The Court of Criminal Appeal ruled that “there is a long established principle that in certain circumstances the gardaí

are entitled to refuse to disclose sources of information.” It accepted that “if informers cannot be guaranteed immunity, they would

not inform” and that “there is a serious public interest in ensuring that persons who might be subject to intimidation and threats, if

not actual danger of their life, should be protected to ensure that information in their possession will be given to the gardaí to assist

in the prosecution of wrongdoers.” The court went on to rule as follows on the matter which is the subject of the certified question:

“As against this, there is the constitutional obligation on the Courts to ensure that the accused gets a fair trial. It seems to

this court that the balancing of these conflicting rights and interests can only be determined by the Court of Trial.”

Submissions

23. The appellant, in lengthy written submissions, accompanied by extensive citation from authorities, including cases from the

European Court of Human Rights, the House of Lords and the United States Supreme Court, asks this Court to consider whether the

refusal of the Special Criminal Court to allow the defence to cross-examine the Chief Superintendent about the sources of his belief

that the appellant was a member of an unlawful organisation violated the constitutional right of the appellant to a fair trial.

24. At the hearing, Mr Peter Finlay, Senior Counsel, in able and comprehensive submissions, argued that Article 38 is essentially a

procedural provision for the protection of the fairness of the process by which adjudication in a criminal trial takes place. He argued

that the heart of the adversarial system is the testing of evidence that leads to the discovery of the truth. Thus, the general

principle of the right to cross-examine must be protected.

25. On the other hand, Mr Finlay accepted that informer privilege must also be protected. Where the right to cross-examine is denied,

the court must address the issue of the weight of the evidence and cannot convict on opinion evidence alone. In particular, evidence

of the accused denying the charge should negative the opinion of the Chief Superintendent.

26. Mr George Bermingham, Senior Counsel, pointed out that section 3(2) of the Offences Against the State (Amendment) Act, 1972

is very clear; the Chief Superintendent’s belief “shall be evidence.” Moreover, any witness may advance a claim of privilege, such as

was upheld in this case. Thus, admissible evidence was admitted and a claim of privilege was upheld. The only issue is the weight to

be attached to the evidence. The act says only that it is evidence, not that it is conclusive. The factors to be considered include

whether the evidence has been challenged in any fashion, whether in cross-examination or in evidence or whether any effort is made

to undermine the evidence of the Chief Superintendent, such as by showing that it has been rejected on an earlier occasion.

Following a review of the operation of section 3(2) over the years since it came into force, Mr Bermingham said that, while the Special

Criminal Court does have regard to all relevant circumstances in assessing the weight of the evidence of a Chief Superintendent, to

say that no weight should be attached to it would be tantamount to the repeal of the provision.

Consideration of the certified question

27. I turn now to consider the approach which should be adopted to the certified question. There is a surprisingly small amount of

authority on the operation of the section, considering that it has been in force for more than thirty years and the number of

prosecutions which have been brought. In particular, there is no authority pointing to the conclusion which should follow from the

particular combination of circumstances which have arisen in the present case. The situation where the Chief Superintendent gave

evidence of his belief, that he was cross-examined and that he claimed privilege is not new. Nor is it unprecedented that the accused

gave evidence denying membership of an unlawful organisation. This has apparently happened in the past. We were informed that, in

such circumstances, where the sole prosecution evidence was the opinion of the Chief Superintendent, the Special Criminal Court

usually acquitted. At any rate, this particular set of circumstances has not previously been considered by this Court and probably not

by the Court of Criminal Appeal. The singular point is whether the fact that an accused person, who is prepared to give evidence

denying membership of an unlawful organisation, is denied the right to cross-examine the Chief Superintendent as to the sources of

his belief has had a fair trial.

28. This point is both important and difficult. It sets the policy of the legislation in suppressing dangerous and threatening unlawful

organisations against the presumption of innocence and the imperative of a fair trial.

28. It is well to commence by recalling the nature of an unlawful organisation as defined by section 18 of the Offences Against the

State Act, 1939:

“In order to regulate and control in the public interest the exercise of the constitutional right of citizens to form associations,

it is hereby declared that any organisation which—

(a) engages in, promotes, encourages, or advocates the commission of treason or any activity of a treasonable nature, or

(b) advocates, encourages, or attempts the procuring by force, violence, or other unconstitutional means of an alteration of

the Constitution, or

(c) raises or maintains or attempts to raise or maintain a military or armed force in contravention of the Constitution or

without constitutional authority, or

(d) engages in, promotes, encourages, or advocates the commission of any criminal offence or the obstruction of or

interference with the administration of justice or the enforcement of the law, or

(e) engages in, promotes, encourages, or advocates the attainment of any particular object, lawful or unlawful, by violent,

criminal, or other unlawful means, or

(f) promotes, encourages, or advocates the non-payment of moneys payable to the Central Fund or any other public fund or

the non-payment of local taxation, shall be an unlawful organisation within the meaning and for the purposes of this Act, and

this Act shall apply and have effect in relation to such organisation accordingly.”

29. It is obvious from the definition of an unlawful organisation and from common sense that such organisations are, in their nature,

secret and violent. It follows that it will be extremely difficult to produce direct evidence capable of sustaining a prosecution.

Intimidation of possible witnesses, and worse, is to be presumed. Where the Gardaí have secret intelligence, they will be unable to

produce informants as witnesses without compromising them. Hence the need for an unusual type of evidence. Section 3(2) of the

Offences Against the State (Amendment) Act, 1972 has been quoted above. The Oireachtas has chosen to designate only a person

holding the rank of Chief Superintendent of the Garda Síochána as a witness whose belief may be may be accepted as evidence by

the courts.

30. This is evidence of a quite exceptional kind. Whether or not an accused person is a member of an unlawful organisation is a

question of fact. The Chief Superintendent gives evidence not of fact but of belief. His belief does not have to be based on direct

knowledge of the involvement of the accused in the unlawful organisation in question. It is patently based on statements of others,

whether inside or outside the force. It is probably frequently based on intelligence available to the Garda Síochána. That is precisely

what is permitted by the section. Such evidence, if given openly, would infringe the hearsay rule, an objection which is circumvented

by the section. The Chief Superintendent simply says what his belief is.

Cases on section 3(2)

31. The courts have treated this problem with circumspection. It is well known, as was confirmed by Mr Bermingham, that, in the

early years after 1972, prosecutions were generally mounted on the basis of a Chief Superintendent’s opinion alone. At that time, it

was the general practice of persons charged with membership to refuse to recognise the court, or to plead or, indeed, to take any

part in the proceedings. This, no doubt, represented the attitude and policy of the principal unlawful organisation, the IRA, that it did

not recognise the organs of the State.

32. The response of the Court of Criminal Appeal can be seen from the case of People (DPP) v Ferguson (Unreported 27th October

1975). It appears from the report that the only evidence was that of a Chief Superintendent, which was not challenged in any way.

The accused did not give evidence. O’Higgins C.J. delivered the judgment of the court. He said that it had to be recognised that

section 3(2) of the Act of 1972 “represented the law of the land” and that “it was there and the law must be taken as it was.” He

proceeded, however, to observe:

"With regard to an expression of belief, obviously the weight to be attached to it depended on a variety of matters- the person

who expressed the belief, the circumstances in which it was expressed in particular whether that expression was challenged or

not. Obviously in this case if the accused had denied on oath the charge; had denied that he was a member of an illegal

organisation, the value and cogency to be attached the e expression of belief of the Chief Superintendent’s belief would be

obviously very much diminished. That did not take place in this case and when an expression of belief was not denied when the

opportunity to deny it was there; when the accused man did not give evidence in face of an expression of belief by the Chief

Superintendent, then obviously on the other hand the cogency and weight to be attached to that expression of belief was

considerably enhanced.”

33. While the Special Criminal Court in DPP v Ferguson, as well as in other later cases, has countenanced conviction based on the

opinion of the Chief Superintendent alone, the practice and approach has developed substantially.

34. A challenge was brought to the constitutionality of section 3(2) of the Act of 1972 in O’Leary v Attorney General [1993] 1 I.R.

102. The plaintiff, in that case, claimed that the section infringed the constitutionally guaranteed presumption of innocence. “By

providing,” it was said, “that the statement of the Chief Superintendent is to be evidence that an accused person is a member of an

unlawful organisation the section ……shifts the burden of proof to an accused person and requires him to establish, once evidence is

adduced, that he is not a member of an unlawful organisation thus depriving him of the presumption of innocence to which he is

entitled.” Costello J, giving judgment in the High Court, rejected this submission, saying:

“I fail to see how this section affects in any way the plaintiff's right to enjoy the presumption of innocence. What this section

does is to make admissible in evidence in certain trials statements of belief which would otherwise be inadmissible. The

statement of belief if proffered at the trial becomes "evidence" by virtue of this section in the prosecution case against the

accused. Like other evidence it has to be weighed and considered and the section cannot be construed as meaning that the

court of trial must convict the accused in the absence of exculpatory evidence. The accused need not give evidence, and he

may ask the court to hold that the evidence does not establish beyond a reasonable doubt that he is a member of an unlawful

organisation. Should the court agree he must be acquitted.”

35. As Mr Finlay points out, the O’Leary case did not consider any effect of the restriction on the cross-examination of the Chief

Superintendent on the fairness of the trial. There was no appeal to the Supreme Court on this point.

36. Some time after the non-recognition phase, accused persons commenced to recognise the Special Criminal Court and to contest

the charge of membership both by cross-examination and by going into evidence. In response, the prosecution in a number of cases

gathered incriminating evidence, for example of associations of the accused person, to be put to the accused in cross-examination,

though not included in the book of evidence. The Court of Criminal Appeal disapproved this practice in the case of People (Director of

Public Prosecutions) v Cull (Unreported 24th November 1980 2 Frewen 36). Gannon J, speaking for the court said that an accused

person should be “informed of the nature and substance of the evidence intended to be offered in support of the charge preferred

against him", which forms “part of the essential requirements of a fair trial.” Where the evidence had been known to the prosecution

in sufficient time to have been included in the evidence used against him but excluded, it should not have been put to him for the first

time in the course of his cross-examination.

37. McCracken J, delivering the judgment of the Court of Criminal Appeal on 2nd April 2003 in People (Director of Public Prosecutions)

v Gannon, considered the above passages from the Ferguson and O’Leary cases in the context of a contention that the Ferguson

passage constituted “a direction to the [Special Criminal Court] to attach additional cogency and weight to the evidence of the Chief

Superintendent because the applicant did not give evidence,” which would infringe the applicant’s right to silence. In the Gannon

case, as was held by the Court, there was, in spite of certain points to the contrary made on behalf of the prosecution, no evidence

against the accused other than the belief of the Chief Superintendent, who had not been cross-examined. The accused did not give

evidence. The Court of Criminal Appeal preferred the approach of Costello J in the passage from O’Leary quoted above to that from

the Ferguson case. It held:

“The sub-section does not give any indication as to the weight to be attached to the belief of the Chief Superintendent, nor

does it in any way comment on the position in the event that there is no challenge to his belief. It is simply one piece of

evidence which is admitted, and must be considered having regard to all the other admissible evidence. This does not in any

way affect the right of the applicant not to give evidence, or the principle that a decision not to give evidence is not a factor

to be taken into account against an accused person.

The fact remains that this was the only substantive evidence either for or against the guilt of the accused, and that this

evidence was not challenged. The court does not accept that the entry of a plea of not guilty in some way challenged the

evidence to be subsequently given, not does the court accept that the failure of the Chief Superintendent to state the basis of

his belief affected the validity of the evidence. It was always open to the applicant to cross-examine the Chief Superintendent

as to the basis of his belief, but in the absence of such cross-examination the court was left with only unchallenged evidence.

”

38. Two further cases were cited to this Court. They were the cases respectively of People (Director of Public Prosecutions) v

Redmond (Unreported 24th February 2004) and People (Director of Public Prosecutions) v Mulligan (Unreported 17th May 2004). In

each of these cases, the judgment of the Court of Criminal Appeal was delivered by Keane C.J. In the latter case, while there was

evidence apart from the belief of the Chief Superintendent, the court ruled on the effect of section 3(2). Keane C.J. said that that

“the legislature has provided that that (the belief of the Chief Superintendent ) is to be evidence and……the weight to be given to

that evidence then was entirely a matter for the court of trial.” He went on to acknowledge that:

“It may well be said, and indeed, has been said, that the legislature has significantly altered the normal law of evidence and

altered it unambiguously and unequivocally in favour of the prosecution and against the defence in a case of this nature.”

39. The Court of Criminal Appeal also pointed out in People (Director of Public Prosecutions) v Mulligan that the Chief Superintendent

had claimed privilege, but said that counsel had not asked the court of trial to rule on the matter, which might have involved the

court in inspecting documents, insofar as documentary evidence had been relied upon by the Chief Superintendent in reaching his

opinion. The Court of Criminal Appeal did not, therefore, have to rule on the consequences of denial of access to information

contained in such documents.

40. Counsel for the prosecution has informed the court that it is no longer the practice of the Director of Public Prosecutions to

prosecute on a charge of membership of an unlawful organisation based on the evidence of a Chief Superintendent alone and has also

suggested that the Special Criminal Court will not convict on the basis of such evidence alone. Nonetheless, it remains the fact that

the Court of Criminal Appeal has on several occasions explicitly upheld the right of that court to convict in those circumstances. The

factual situation was summed up in the Report of the Committee to Review the Offences Against the State Acts, 1939-1998

(published May 2002 at page 123) as follows:

“The effect of section 3(2) was neutralised in the wake of Ferguson, where, in practice, the Special Criminal Court acquitted

defendants who had denied membership where the Chief Superintendent’s opinion represented the only prosecution evidence.

The Special Criminal Court also tended to acquit where the Chief Superintendent claimed privilege in respect of the sources of

his belief. But section 21 convictions were secured in cases where membership had been denied on oath by the accused, even

where the other supporting evidence might be regarded as equivocal.”

41. A person may be convicted on the evidence of a Chief Superintendent alone. Where the Chief Superintendent is not cross-

examined at all and still less questioned as to the sources of his belief, and where no other basis is laid for questioning the truth or

cogency of his evidence, it is difficult to envisage any court deciding to acquit. To quote the Court of Criminal Appeal (per Gannon J)

in People (Director of Public Prosecutions) v Cull at page 41:

“It would seem probable …that the Legislature would expect an officer of that rank to reach, in a responsible manner, an

opinion in accordance with principles of justice in relation to the guilt of a person in whose favour there is a presumption of

innocence.”

42. Put otherwise, a court of trial is entitled to assume that an officer of the rank of Chief Superintendent will give evidence of his

belief that an accused person is a member of an unlawful organisation only when he has satisfied himself of this fact beyond

reasonable doubt. Hence, even when that is the only evidence, a court is entitled to act on it, in the absence of some challenge or

question sufficient to raise such a doubt.

43. Where, as here, the accused wishes to mount a full defence to the charge of membership, the position is quite different. The

specific circumstances which have arisen in the present case have not previously been the subject of a ruling by the Court of Criminal

Appeal.

44. The Chief Superintendent merely states that he is of the belief that the accused is a member of an unlawful organisation. That

type of evidence is, in itself, a novelty. Under the normal rules of evidence, only expert witnesses are permitted to give evidence of

opinion or belief and even then not on simple questions of fact. The Chief Superintendent may, no doubt, be regarded as an expert in

his allotted field. That, however, is not the real problem. 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 worst case, malicious. None of this can be tested.

45. None of this means, in my view, that courts should generally or at all disallow claims of privilege. The evidence Chief

Superintendent Kelly gave before the Special Criminal Court was perfectly plausible, indeed compelling. The Court of Criminal Appeal

was right in expressing the views I have quoted above. The Special Criminal Court was entitled to accept it. It is in the nature of an

unlawful organisation to threaten, intimidate and endanger the lives of those who co-operate with the police or give evidence against

members. Nor do I think, however, that this is truly a case of informer privilege. Where that issue has arisen, the actual direct

evidence tending to establish the guilt of the accused will have been given to the court. In the present case, the accused is denied

access to the very evidence itself which tends to establish his guilt. Only the Chief Superintendent is aware of that evidence, but, for

what must be accepted as perfectly good reasons, is constrained from revealing it to the defence or to the court.

46. In any other case, the courts will not be permit evidence relevant to the guilt or innocence of the accused to be withheld. The

courts have developed over recent years extensive rules and principles requiring the prosecution authorities to preserve and to

disclose to the defence in advance of trial any materials in the possession of the prosecution which may give rise to a reasonable

possibility of securing evidence relevant to the guilt or innocence of the accused. (see Braddish v Director of Public Prosecutions

[2001] 3 I.R. 127; Dunne v Director of Public Prosecutions [2002] 2 I.R. 305; Bowes v Director of Public Prosecutions; McGrath v

same [2003] 2 I.R. 25). It is implicit in this line of case law that the prosecution must disclose to the defence any material of possible

relevance to the guilt or innocence of the accused. In several of these cases, the Director of Public Prosecutions was prohibited from

continuing with prosecutions when a real risk of an unfair trial flowed from non-compliance with these principles.

47. Mr Finlay, however, has preferred to lay his case very firmly on the ground of denial of a fair trial as a result of infringement of the

effective right to cross-examine witnesses, meaning, in the first instance the Chief Superintendent and, by extension any informants

of the Chief Superintendent who might be identified if he revealed his sources.

The right to cross-examine

48. It is a proposition so obvious as scarcely to need no authority that the right to cross-examine one’s accusers is fundamental to

our criminal procedures. It is axiomatic that every witness must submit himself to the rigours of cross-examination, to having his

evidence questioned, tested, challenged and contradicted and his credit impeached. Cross-examination plays a pivotal role in all

adversarial proceedings under the common-law system. As it happens, authority is not lacking. I will refer to three decisions of our

courts.

49. First among these is the celebrated case of In re Haughey [1971] I.R. 217, which concerned, of course, the procedures of the

Public Accounts Committee of Dáil Eireann. The expression “in re Haughey” has become a shorthand reference for the most basic

procedural rights in a wide range of proceedings. As it happens, it stands also as a very straightforward authority for the proposition

that an accused in a criminal trial may not be denied the right to cross-examine. The Committee had certified Mr Pádraic Haughey to

the High Court for contempt in failing to answer its questions and relied, for the purposes of the prosecution of Mr Haughey before the

High Court, on an affidavit of the chairman of the Committee. The High Court declined to permit cross-examination, ruling that the

matters on which he wished to cross-examine were inadmissible on the issue of his guilt. O’Dalaigh C.J., delivering the judgment of the

majority of the Supreme Court overruled this decision, stating, at paragraph 261:

“As to the disallowance of cross-examination, an accused person has a right to cross-examine every witness for the

prosecution, subject, in respect of any question asked, to the court's power of disallowance on the ground of irrelevancy. An

accused, in advance of cross-examination, cannot be required to state what his purpose in cross-examining is. Moreover, the

right to cross-examine "to credit" narrows considerably the scope of the irrelevancy rule. Mr. Haughey, in my opinion, was

wrongly denied the right to cross-examine.”

50. O’Dalaigh C.J. also and more famously identified the procedural rights guaranteed to a person in the position of Mr Haughey. He did

so largely by reference to procedural rights at a criminal trial. He accepted, at page 263, that a person the subject of examination by

the Committee was entitled to the following rights as propounded on behalf of the plaintiff:

“(a) that he should be furnished with a copy of the evidence which reflected on his good name;

(b) that he should be allowed to cross-examine, by counsel, his accuser or accusers;

(c) that he should be allowed to give rebutting evidence;

(d) that he should be permitted to address, again by counsel, the Committee in his own defence.”

51. The actual context of this aspect of In re Haughey is instructive for the purposes of this case. A Chief Superintendent of the

Garda Síochána gave evidence which, he said, was from confidential sources which he was not at liberty to reveal (see page 262 of

the report). This evidence purported to indicate that Mr Haughey had paid over money to the Chief of Staff of the IRA, was otherwise

involved in meetings with an IRA leader and had made arrangements to have two consignments of arms handed over to the IRA. Mr

Haughey, however, was, in the eyes of a Committee, a mere witness and was not entitled to cross-examine another witness including

the Chief Superintendent. O’Dalaigh C.J. characterised the ensuing situation, at page 262, as follows:

“Therefore, the position of Mr. Haughey was that at a public session of the Committee ………he had been accused of conduct

which reflected on his character and good name and that the accusations made against him were made upon the hearsay

evidence of a witness who asserted that he was not at liberty, and therefore was not prepared, to furnish the Committee with

the names of Mr. Haughey's real accusers. The question which arises in these circumstances is what rights, if any, is Mr.

Haughey entitled to assert in defence of his character and good name?”

52. It was in these circumstances that counsel for Mr Haughey proposed the four rights summarised above, which have become

known as “re Haughey rights.” O’Dalaigh C.J. held that the position of Mr Haughey before the Committee was not that of a witness

but of a party, since his conduct was the very subject matter of the Committee’s examination. He answered his own question

concerning the rights available to Mr Haughey in the following much-cited passage from page 263:

“No court is unaware that the right of an accused person to defend himself adds to the length of the proceedings. But the

Constitution guarantees that the State "so far as practicable" (sa mhéid gur féidir é) will by its laws safeguard and vindicate

the citizen's good name. Where, as here, it is considered necessary to grant immunity to witnesses appearing before a

tribunal, then a person whose conduct is impugned as part of the subject matter of the inquiry must be afforded reasonable

means of defending himself. What are these means? They have been already enumerated at (a) to (d) above. Without the two

rights which the Committee's procedures have purported to exclude, no accused--I speak within the context of the terms of

the inquiry--could hope to make any adequate defence of his good name. To deny such rights is, in an ancestral adage, a

classic case of clocha ceangailte agus madraí scaoilte. Article 40, s. 3, of the Constitution is a guarantee to the citizen of

basic fairness of procedures. The Constitution guarantees such fairness, and it is the duty of the Court to underline that the

words of Article 40, s. 3, are not political shibboleths but provide a positive protection for the citizen and his good name.

Clause (iii) of the Committee's procedures, while valid in respect of witnesses in general, in this instance would, if applied in

the circumstances of this case, violate the rights guaranteed to Mr. Haughey by the provisions of Article 40, s. 3, of the

Constitution.”

53. One aspect of the judgment of O’Dalaigh C.J. remains somewhat obscure. While he appeared to regard as unjust the fact that Mr

Haughey was faced with accusations made by the Chief Superintendent based on undisclosed sources, he does not appear to have

gone beyond ruling that Mr Haughey should have been entitled to cross-examine other witnesses, implicitly including the Chief

Superintendent. It appears that the refusal of the right to cross-examine the chairman of the Committee was sufficient to persuade a

majority of the Court to set aside Mr Haughey’s High Court conviction for contempt of the Committee. Thus, although there are

indications that it was unfair that Mr Haughey was subjected to damaging imputations on his good name and character from the

evidence of the Chief Superintendent, who declined to disclose his sources, the Court did not expressly decide whether that was

sufficient to warrant setting aside the conviction.

54. In re Haughey was a principal authority cited in another celebrated and oft-cited decision, that of Gannon J in State(Healy) v

Donoghue [1976] I.R. 325 at 335. The learned judge identified the principal rights guaranteed by Article 38.1 of the Constitution in

respect of a criminal trial:

“Among the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to

be adequately informed of the nature and substance of the accusation, to have the matter tried in his presence by an

impartial and independent court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his

accuser, to be allowed to give or call evidence in his defence, and to be heard in argument or submission before judgment be

given. By mentioning these I am not to be taken as giving a complete summary, or as excluding other rights such as the right

to reasonable expedition and the right to have an opportunity for preparation of the defence. The rights I have mentioned are

such as would necessarily have a bearing on the result of a trial. In my view, they are rights which are anterior to and do not

merely derive from the Constitution, but the duty to protect them is cast upon the Courts by the Constitution.” (emphasis

added).

55. Although State (Healy) v Donoghue was directly concerned with legal aid, the principles it enunciated have been very generally

accepted ever since. The Supreme Court approved the dictum of Gannon J in the appeal from his decision.

56. This Court cited both of these authorities in extenso in its judgment, delivered by Hamilton C.J., in Donnelly v Ireland and others

[1998] 1 I.R. 321. The plaintiff had challenged the constitutionality of a number of provisions of the Criminal Evidence Act, 1992,

which provide for the receipt of evidence on the trial of certain offences, including, in particular, sexual offences, by means of live

video link. The contention was that permitting witnesses to give evidence in this way infringed the constitutional guarantee of fair

procedures insofar as the accused was not physically able to confront his accusers. While the Court rejected the claim to a right to

direct physical confrontation, it reiterated established principles including the primacy of the right to a fair trial. The judgment of the

Court contains the following at page 348:

“It is well established in our constitutional jurisprudence that an accused person's right to a fair trial is one of the most

fundamental constitutional rights accorded to persons and that in so far as it is possible or desirable to construct a hierarchy

of constitutional rights it is a superior right.”

57. Referring to State (Healy) v Donoghue, the Court said:

“An essential ingredient in the concept of fair procedures is that an accused person should have the opportunity to, in the

words of Gannon J., 'hear and test by examination the evidence offered by or on behalf of his accuser'.”

58. The Court cited a number of decisions of the Supreme Court of the United States, which had had to consider the very point

before the Court. The sixth amendment to the US Constitution specifically includes a “right to be confronted with the witnesses

against him” (the accused). The Court continued at page 356:

“Though the Constitution of Ireland, 1937, contains no specific right such as that guaranteed in the confrontation clause, the

central concern of the requirements of due process and fair procedures is the same, that is to ensure the fairness of the trial

of an accused person. This undoubtedly involves the rigorous testing by cross-examination of the evidence against him or

her.”

59. In effect, the Court accepted that the notion of fair procedures at a criminal trial guaranteed by Article 38 of the Constitution

encompasses a right for the accused to confront his or her accusers. It merely says that such a right does not require that the

witness and the accused be present in the same courtroom while the evidence is being given. The following passage at page 357

shows how the balance is maintained:

“The Court is satisfied, however, that the assessment of such credibility does not require that the witness should be required

to give evidence in the physical presence of the accused person and that the requirements of fair procedures are adequately

fulfilled by requiring that the witness give evidence on oath and be subjected to cross-examination and that the judge and jury

have ample opportunity to observe the demeanour of the witness while giving evidence and being subjected to cross-

examination. In this way, an accused person's right to a fair trial is adequately protected and vindicated. Such right does not

include the right in all circumstances to require that the evidence be given in his physical presence and consequently there is

no such constitutional right.”

60. Mr Finlay cited extensively from decisions of the Supreme Court of the United States and of the European Court of Human Rights.

Supreme Court of the United States

61. In respect of the first, it can be said that our courts, as this Court did in Donnelly, have often found decisions of respected courts

of other jurisdictions highly persuasive subject to the need to be careful that the constitutional provisions are sufficiently comparable.

On the point of the right to cross-examine, the US reports positively bristle with declarations of the impregnability of that right and

condemnations of infringements. It will suffice to cite two authorities.

62. In Greene v McElroy, 360 U.S. 474 (1959), Warren C.J. reviewed what he called “[c]ertain principles [which] have remained

relatively immutable in our jurisprudence” and which “have ancient roots.” In respect of the right of cross-examination, having

referred to a number of authorities, he cited with approval from 5 Wigmore on Evidence (3d ed. 1940) 1367:

"For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by

cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is

comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should

be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening

experience."

63. In Pointer v Texas, 380 U.S. 400 (1965), a statement of a witness not present at the trial, though he had testified at a

preliminary hearing, was introduced in evidence. Black J, delivering the judgment of the court stated:

“There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their

expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the

kind of fair trial which is this country's constitutional goal.”

European Court of Human Rights

64. Article 6(3) of the European Convention on Human Right and Fundamental Freedoms lays down principles in respect of criminal

trials:

“Everyone charged with a criminal offence has the following minimum rights:

"(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the

accusation against him;

(b) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against him."

65. The Convention, according to the jurisprudence of that Court, provides human-rights protection which is subsidiary to that

provided by the laws and constitutions of the Member States. In other words, each state is perfectly free to provide a higher level of

protection. Criminal procedures in the civil-law countries, which comprise the great majority of members of the Council of Europe, are

very different from those of the common-law countries, nowhere more so, perhaps, than in respect of the right of cross-examination.

Cross-examination, at least in the form that we know it is practically unknown outside the common-law countries. Most usually, the

defendant’s lawyer has to ask the judge to ask any questions. Article 6(3) recognises this fact by providing for the right to “examine

or have examined witnesses against him…” (emphasis added). Thus, one would not necessarily expect the judgments of the European

Court of Human Rights to insist, to the same extent as our courts on the right to cross-examine.

66. Mr Finlay has cited two decisions of the Strasbourg Court concerning criminal convictions in Dutch courts. The reports show that

Dutch criminal procedure permitted evidence at trial to include, for example, anonymous statements contained in official police

reports. The Court (in Kostovski, cited below at paragraph 29) described Dutch criminal procedure, following certain judicial rulings, in

practice as follows:

“These rulings permit the use, as "legal means of evidence"…… of depositions made by a witness not at the trial but before a

police officer or the examining magistrate, provided they are recorded in an official report which is read aloud in court. The

rulings have had the effect that in practice the importance of the investigation at the trial - which is never conducted before

a jury - has dwindled. In the great majority of cases witnesses are not heard at the trial but either only by the police or also

by the examining magistrate.”

67. In cases such as Kostovski v Netherlands [1989] 12 EHRR, the European Court has insisted that there must be some degree of

right to confront and challenge witnesses. In that case, a Dutch court had convicted the applicant of armed robbery. The conviction

was based to a decisive extent on reports of statements made by anonymous witnesses, who had been heard by the police in the

absence of the applicant and his counsel. At the trial the court heard the evidence of examining magistrates and a police officer who

had interviewed the anonymous witnesses. The Dutch government argued that the use of anonymous evidence stemmed from an

increase in the intimidation of witnesses and was based on a balancing of the interests of society, the accused and the witnesses.

68. In my view, there is a striking analogy between the procedure of the Dutch court which was condemned by the European Court in

Kostovski and the problem presented by the present appeal.

69. The Court firstly stated that:

“As a rule, [ the rights of the defence] require that an accused should be given an adequate and proper opportunity to

challenge and question a witness against him, either at the time the witness was making a statement or at some later stage

in the proceedings.”

70. The Court then noted that such an opportunity had not been afforded to the applicant in that case. The anonymous witnesses

had not been heard at the trial, their declarations had been taken in the absence of the applicant or his counsel and, accordingly,

they could not at any stage be questioned by or on behalf of the applicant. The Court then observed (paragraphs 42 and 43):

“It is true that the defence was able …… to question one of the police officers and both of the examining magistrates who had

taken the declarations ……. It was also able, but as regards only one of the anonymous persons, to submit written questions

to him/her indirectly through the examining magistrate……. However, the nature and scope of the questions it could put in

either of these ways were considerably restricted by reason of the decision that the anonymity of the authors of the

statements should be preserved….

The latter feature of the case compounded the difficulties facing the applicant. If the defence is unaware of the identity of the

person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced,

hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply

erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's

reliability or cast doubt on his credibility. The dangers inherent in such a situation are obvious.

Furthermore, each of the trial courts was precluded by the absence of the said anonymous persons from observing their

demeanour under questioning and thus forming its own impression of their reliability."

71. The Court acknowledged the importance of the struggle against organized crime, but, nonetheless, found that there had been a

violation of Article 6 of the Convention:

“The right to a fair administration of justice holds so prominent a place in a democratic society …… that it cannot be

sacrificed to expediency. The Convention does not preclude reliance, at the investigation stage of criminal proceedings, on

sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to

found a conviction, as in the present case, is a different matter. It involved limitations on the rights of the defence which

were irreconcilable with the guarantees contained in Article 6."

72. According to its subsequent decision in Doorsen v Netherlands 22 EHRR 330, these paragraphs should be read as implying that the

use of anonymous statements at trial is not, in all circumstances, incompatible with the Convention. It is, however, difficult to avoid

the conclusion that it modified its stance in Doorson. There the court said (paragraph 70 of the judgment):

“It is true that Article …does not explicitly require the interests of witnesses in general, and those of victims called upon to

testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may

interests coming generally within the ambit of Article 8…of the Convention. Such interests of witnesses and victims are in

principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise

their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles

of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or

victims called upon to testify.”

73. Judges Ryssdal and de Meyer delivered a dissenting judgment, in which they said:

“It is not only in drugs cases that problems may arise in relation to the safety of witnesses. It is not permissible to resolve

such problems by departing from such a fundamental principle as the one that witness evidence challenged by the accused

cannot be admitted against him if he has not had an opportunity to examine or have examined, in his presence, the witness in

question.”

74. In subsequent years the European Court has adhered to the principle that the fair administration of justice holds an important

position in a democratic society and that measures restricting the rights of the defence should be restricted to what is strictly

necessary (see, for example, Mechelen v Netherlands 1997 25 E.H.R.R. 647; Rowe v United Kingdom 2000 30 E.H.R.R. 1). Recognition

of the legitimate public interest in protecting police sources of information or the safety of informers or witnesses has led to the

acceptance of the possible justification of the withholding of relevant information from disclosure to the defence.

The House of Lords

75. In the United Kingdom, there has been developed, in part by statute and in part by judge-made law, the possible appointment of

counsel described as “special advocates,” to argue the interests of the defence without the necessity for disclosure of the relevant

information to the defendant. Lord Bingham, delivering the opinion of the Appellate Committee in R v H [2004] 2 AC 134), provided a

comprehensive account of the development of this procedure. He also made the following remarks concerning the tension between

the objectives of a fair trial and the public interest in protecting confidential information:

“Circumstances may arise in which material held by the prosecution and tending to undermine the prosecution or assist the

defence cannot be disclosed to the defence, fully or even at all, without the risk of serious prejudice to an important public

interest. The public interest most regularly engaged is that in the effective investigation and prosecution of serious crime,

which may involve resort to informers and undercover agents, or the use of scientific or operational techniques (such as

surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of

future operations. In such circumstances some derogation from the golden rule of full disclosure may be justified but such

derogation must always be the minimum derogation necessary to protect the public interest in question and must never

imperil the overall fairness of the trial.”

Conclusions

76. The solution of special advocates appears to have been firmly rejected in this jurisdiction. (see Burke v Central Independent

Television plc [1994] 2 I.R. 61; Director of Public Prosecutions v Special Criminal Court, cited above). Our courts have preferred to

resolve conflicts between the conflicting imperatives of a fair trial and the protection of public confidential information by asking the

responsible court itself to examine the material. This, as I have already mentioned was suggested by Keane C.J. in the case of

Director of Public Prosecutions v Mulligan, mentioned above and was specifically ordained by this Court in Director of Public

Prosecutions v Special Criminal Court. In that case, O’Flaherty J commented, at page 87 of the judgment, on the conflict between

the principle of informer’s privilege and the preservation of law and order. Having referred to a dictum in a Canadian case that ”the

right to disclosure is not to trump privilege,” he remarked that “they must both be accommodated.”

77. The essential question to be answered in this case is whether the undisputed restriction on the right of the accused to cross-

examine his accusers and to have access to the materials relied upon by the prosecution has been unduly restricted so as to render

his trial unfair and his conviction unsafe. I believe that all of the authorities cited from all relevant jurisdictions demonstrate that there

is an inescapable obligation on the courts to guarantee the overall fairness of a trial. I also believe that, in our legal system, the right

to cross-examine one’s accusers is an essential element in a fair trial. This is not to say that restrictions may not be imposed in the

interests of overall balance and the efficiency of the criminal justice system. While there may be derogations for overriding reasons of

public interests from normal procedural rights of the defence, these must not go beyond what is strictly necessary and must, in no

circumstances, to use the language of Lord Bingham, “imperil the overall fairness of the trial.”

78. I believe that the claim of privilege made by the Chief Superintendent constituted an undoubted infringement of the normal right

of the accused to have access to the material which underlay the belief expressed. To that extent, it constituted a restriction on the

effectiveness of the right of the appellant to cross-examine his true accusers and it had, for that reason, the potential for unfairness.

79. On the other hand, Mr Bermingham, for the Director of Public Prosecutions has pointed to a number of compelling circumstances to

justify the course of action which has been adopted. Firstly, the exceptional resort to the evidence of the Chief Superintendent

applies only in the case of organisations which, in their nature, represent a threat, not only to the institutions of the State, but to

individuals who are prepared quite properly to cooperate with the State in securing the conviction of members of such organisations.

This makes it possible to justify some restriction on direct access on behalf of the accused to the identity of his accusers. Secondly,

the legislature has allowed such evidence to be given by members of the Garda Síochána of particularly high rank, who can be

presumed to have been chosen for having high standards of integrity. Thirdly, the procedure applies only while there is in force a

declaration that “the ordinary courts are inadequate to secure the effective administration of justice….” The offence is a scheduled

one; thus the cases will be heard only by the Special Criminal Court, a court now composed of judges who must be presumed to apply

only the highest standards of fairness. I also agree with Geoghegan J that it is relevant that the section enjoys a presumption of

constitutionality. Any restriction on the right to cross-examine, which it implies, must be limited to the extent that is strictly

necessary to achieve its clear objectives. I believe that the circumstances I have mentioned constitute sufficient justification for its

introduction, while, at the same time, demonstrating a concern to respect such necessary limitations.

80. I return to the particular circumstances of the present case. It is of crucial importance that there was quite extensive evidence,

other than the evidence of the Chief Superintendent, which convinced the Special Criminal Court that the appellant was a member of

the IRA on the relevant date. The Court said that it took into account the fact that the Chief Superintendent had claimed privilege. It

did not, on the other hand, explain this remark any further. The court should, in my view, have explained the weight, if any, which it

attached to the evidence of the Chief Superintendent, in view of the claim to privilege. However, in the particular circumstances of

this trial, I do not think there was any overall unfairness. I do not think that the undoubted restriction on the rights of the accused

went further than was strictly necessary to protect other potential witnesses or informants. I do not see how the identity and safety

of those other witnesses could have been protected otherwise. Thus, it was, in the literal sense necessary to prevent the defence

from learning who they were, which, I turn, made it inevitable that the right to cross-examine would have to be restricted. The

matter might be quite different in a case where the evidence of the Chief Superintendent was the sole plank in the prosecution case,

where privilege had been successfully claimed and the accused had given evidence denying the charge. In such a case, there would

be a powerful argument based on denial of “in re Haughey” rights.

81. I am satisfied that, in the particular circumstances of this appeal there was no unfairness in the trial of the appellant. I would

dismiss the appeal.