Supreme Court dismisses appeal, holding s.3(2) of 1972 Act constitutional if belief evidence is supported by independent corroborative evidence.

THE SUPREME COURT

[Appeal No: 298/2009]

Denham C.J.

Hardiman J.

McKechnie J.

MacMenamin J.

Charleton J.

Between/

THOMAS REDMOND

Plaintiff/Appellant

and

IRELAND AND THE ATTORNEY GENERAL

Defendant/Respondent

Judgment of Mr. Justice Hardiman delivered the 17th December, 2015.

1. This is an appeal from the judgment of the High Court (McMahon J.) which dismissed the plaintiff’s claim for a declaration that

s.3(2) of the Offences Against the State (Amendment) Act 1972 is inconsistent with the provisions of the Constitution.

2. Section 3(2) of the Act of 1972 renders admissible in evidence the belief of a Chief Superintendent of the gardaí that a person

accused of the criminal offence of membership of the Irish Republican Army is in fact a member of that organisation.

3. The organisation itself is proscribed, as an unlawful organisation, following a determination by the government under s.19 of the

Offences Against the State Act 1939. By s.21 of that Act it is a criminal offence for a person to be a member of an unlawful

organisation.

4. I gratefully accept the statement of the facts of this case set out at paras. 4 – 9 of the judgment of Mr. Justice Charleton.

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

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

evidence. In reality, however, its effect is far greater. That effect cannot be better stated than it was by Fennelly J. in DPP v. Kelly

[2006] 3IR 115. Fennelly J. said, at p.135:

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

belief. He does not know the names of the informants or the substance of the allegations of membership. Without any

knowledge of these matters, the accused is necessarily powerless to challenge them. Informants may be mistaken,

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

6. I wish specifically to endorse this statement of the position brought about at a criminal trial before the Special Criminal Court where

s.3(2) applies. I believe it epitomises the view of every practitioner with actual experience of defending persons charged with the

offence of membership. It is obvious that this puts a person accused of this offence in a much less protected position than a person

charged with any other offence and exposes to a very real risk of conviction, though innocent. This will happen if a Chief

Superintendent, though subjectively honest, has been deceived by “mistaken, misinformed, inaccurate or malicious” informants. There

is recent evidence that such things can occur, set out in the Report of the Morris Tribunal, in relation to the “manipulation” of a

Superintendent, by a member of lower rank, to issue a search warrant without proper cause.

At para. 6.22 of Mr. Justice Morris’s “Report of the Tribunal of Inquiry”, set up pursuant to the “Tribunal of Inquiry (Evidence) Acts

1921 – 2002, into certain gardaí in the Donegal Division”, in a module which deals with “the arrest and detention of seven persons at

Burnfoot Co. Donegal on the 23rd May 1998”, and the investigation relating to the same Mr. Justice Morris reports as follows:

“The Tribunal is satisfied that in many cases the person who issued the warrant was the person who was involved in the

investigation of this offence. This cannot instil any confidence in the independence of the decision made to issue the

warrant. In the Ardara case, the Superintendent who was close to the investigation in Ardara was manipulated by

Detective Sergeant White. The shocking circumstances as to the issue of the warrants for Burnfoot are detailed in

Chapter III of this Report. The danger exists that a warrant would be issued automatically and without proper

investigation of the matter by the Superintendent to whom the application is made if he or she is heading the

investigation. There is a danger that the power to issue a s.29 warrant thereby becomes a mere formality in which the

investigating Sergeant might as well be empowered to issue a search warrant to himself”.

(Emphasis added)

If a superintendent can be “manipulated” in relation to a professional function which was reserved to him under the law as it stood,

then it seems clear that little comfort can be taken in the high rank of the giver of belief evidence under s.3(2). He too might be

“manipulated” by the giver of “mistaken, misinformed, inaccurate or malicious information”, from within the Force or from outside it.

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

because it will almost invariably open the door to the tendering by an adept and experienced witness, of prejudicial material without

any notice to the defence. See the use made of undisclosed material in a slightly different context in the membership case of DPP v.

Cull [1980] 2 Frewen 36.

8. In the present case the learned High Court judge said of s.3(2) Evidence:

“Its frailty is well highlighted by the defence in this case: the material on which the Chief Superintendent bases his belief

is ‘hidden from the accused and his legal advisers’. Insofar as informers are involved, there is no opportunity offered to

the accused to test their motives, their history, their integrity or what private agendas they may have. They are

shadows or ‘ghosts’ as counsel for the defence describes them, with whom the accused cannot engage. To that extent

the accused is certainly placed at a disadvantage and ‘has to engage in the normal adversarial process, labouring under a

handicap’.”

(Emphasis added)

The learned trial judge however continued:

“Nevertheless, when such evidence is admitted the weight given to this evidence, alone or combined with other evidence,

is a matter for the trial court. In assessing the weight, in deciding how this piece of untested evidence feeds into the trial

court’s decision, the Court will, no doubt, bear in mind the unusual nature of the evidence and all the weaknesses that it

has ‘as evidence being unavailable to, and untested and unchallenged by, the defence’. Many judges, for these reasons,

might well deem such ‘bare’ opinion evidence insufficient to convict and may, if that is the only evidence before the

Court, say that the State has failed to prove its case beyond reasonable doubt. That is what happened in DPP v. Binéad

[2007] 1 I.R. 347”.

9. The learned trial judge characterised what happened in Binéad as follows:

“By ruling that it would not convict without supportive or collaborative evidence of the belief, the trial court clearly

recognised the disadvantage which flows from and accrues to the defence in a trial, from the admission such belief

evidence with an accompanying claim to privilege which may limit, in a particular case, the ability to test fully by cross-

examination the underlying material facts leading to that belief”.

It is perfectly true that in recent years certain formations of the Special Criminal Court have declined to convict without

corroboration. But there is no rule of law, statutory or otherwise, to such effect. A conviction can take place without any

corroborating evidence, and has in fact done so on very many occasions. In the present case the learned trial judge said:

“I am not willing to say, however, that it [opinion evidence admissible by virtue of s.3(2)] could never be sufficient”.

10. It is also important to bear in mind that, as Mr. Justice Fennelly said in the passage quoted above, privilege as to the basis of the

Chief Superintendent’s belief will “inevitably” be claimed and the claim will inevitably be acceded to.

It is also sometimes said, and is said in the judgment of Mr. Justice Charleton in the present case, that the accused can cross-

examine the Chief Superintendent though he concedes that this is “perhaps a risky tactic in many cases”. He also said, quite

correctly, that:

“the Court [that is, the Special Criminal Court that tried the plaintiff] confirms that it paid very careful attention to the

demeanour and body language of the Chief Superintendent and was satisfied that he was stating his honest opinion”.

One very much hopes that the opinion of any Chief Superintendent will always be honest in the sense that it is sincerely believed by

him on the basis of the information which he has and which he will not disclose. This fact of his subjective honesty is of is absolutely

no comfort to a defendant and does not in any way mitigate the disadvantages under which he labours. Subjective honesty on the

part of the witness is no guarantee of the veracity of evidence of belief based on third party information.

11. Moreover, the Special Criminal Court in the present case rejected the submission of counsel for Mr. Redmond, when he was on

trial on a membership charge, that the “provisions of s.3(2) of the Act of 1972 necessarily requires that there must be examinable

reality to the sworn testimony of a chief superintendent for it to be admissible under the Section.

The phrase “examinable reality” means some feature of the opinion or the (usually undisclosed) evidence in support of it which is

capable of rational examination and assessment. The fact that such examinable reality is, the Court found, not an essential feature

required for the admissibility of the evidence means that, in a particular case, a defendant may have no material whatever which is

capable of contradiction or investigation so that the opinion will stand alone.

Section 3(2) in its constitutional context. Part I

Article 38.1 of the Constitution prohibits trial on any criminal charge “save in due course of law”. What this means has been the

subject of lengthy exegesis in Professor Kelly’s work on the Constitution. (4th edition, Hogan and White, Eds) and I wish to express

my agreement to what is said there. In Heaney v. Ireland [1994] 3 IR 593 Costello J. (as he then was) points out that Article 38.1:

“is an Article couched in peremptory language and has been construed as a guarantee that criminal trials will be

conducted in accordance with basis concepts of justice…

Thus the principle that an accused is entitled to the presumption of innocence, and that an accused cannot be tried for an offence

unknown to the law, nor charged a second time with the same offence, the principle that the accused must know the case he has to

meet and that evidence illegally obtained will generally speaking be inadmissible at his trial are all principles so basic to the concept of

a ‘fair trial’ that they obtain constitutional protection from this Article”.

To this I would add that elementary justice requires that a person who is liable to some sanction or imposition, based on how a

factual issue is resolved before any body, tribunal, or committee obliged to proceed in accordance with Natural Justice, is entitled to

confront his accuser or accusers and to cross-examine them or have them cross-examined. This was plainly established in the case of

Re Haughey [1971] I.R. 217.

In that case, Mr. Haughey was required to attend before a meeting of the Committee of Public Accounts, a committee of the

Oireachtas. They were enquiring into a particular financial matter. Hearsay evidence, containing serious allegations against Mr. Pádraic

Haughey was received by the Committee from a Chief Superintendent of the Gardaí. The rules of the Committee did not permit Mr.

Haughey to cross-examine the Chief Superintendent or have him cross-examined, nor did the rules permit him to address the

Committee, by counsel, in his own defence. The right to cross-examine was referred to as (b) and the right to address the Committee

by counsel was referred to as (d), these apparently being the reference letters under which these rights, respectively, were claimed:

see page 263 of the Report.

The Committee claimed that a witness in the High Court was not allowed to cross-examine witnesses or to address the Court by

counsel. Therefore, the Committee submitted, Mr. Haughey could not be in a better position. To this Mr. Haughey replied, and was

upheld by the Supreme Court in doing so, that:

“The answer made by counsel for Mr. Haughey was that his client is not just a witness but that he has, in effect, become

a party because his conduct has become the subject matter of the Committee’s enquiry or examination”.

The Court then went on to hold that Mr. Haughey was entitled to both of the rights claimed and denied. Ó Dálaigh C.J., with whom

Mr. Justice Walsh and Mr. Justice Budd agreed, said:

“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.

the provisions of Article 38.1 of the Constitution apply only to trials of criminal charges in accordance with Article 38: but in

proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or

any of his personal rights jeopardised, the proceedings may correctly be classed as proceedings which affect his rights and in

compliance with the Constitution the State either by its enactments or through the Courts must outlaw any procedures which shall

restrict or prevent the party concerned from vindicating those rights”. (Emphasis added)

12. This right is by no means confined to criminal cases. Haughey itself was not a criminal case, but related to the powers and

procedures of a committee of the Oireachtas. Nevertheless the right to cross-examine and to confront was deemed to inhere in Mr.

Haughey because his true position was not that of a witness but was more analogous to that of a defendant.

13. The right to cross-examine was further explored in the case of O’Callaghan v. Mahon [2006] 2 I.R. 32. The essential principle

there is not merely the upholding of the right to cross-examine on the authority of Haughey but the upholding of the right to be made

aware of the material necessary for a proper cross-examination. In the case of a trial in which evidence is admissible pursuant to

s.3(2) it is “inevitably” the case that this is withheld by the invocation of privilege. In O’Callaghan it was held that to deprive a person

of the potential to cross-examine on the witness’s previous statements could “hamper and possibly subvert” the right to cross-

examine.

Section 3(2) – constitutional dimension. Part II

14. The circumstances under which s.3(2) comes into force and continues in force are closely connected to the circumstances in

which certain offences may be tried by a Special Criminal Court, as opposed to by the ordinary courts. The linkage arises as follows:

15. As we have seen, the provision for the acceptance in evidence of a Chief Superintendent’s statement that he believes that the

accused was a member of an unlawful organisation is s.3(2) of the Act of 1972. The following subsection provides:

“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”.

“Part V of the Act of 1939” is a reference to that part of the Offences Against the State Act 1939. This part of the Act of 1939 is

headed “Special Criminal Courts”. This consists of Sections 35 – 53 of the Act of 1939 and is followed by Part VI dealing with “Powers

of Internment”.

By s.35(1) of the Act of 1939 the coming into force of Part V of the Act is controlled as follows:

“This Part of this Act shall not come into or be in force save as and when and for so long as is provided by the

subsequent subsections of this Section”.

The immediately following subsection provides:

(2) “If and whenever and so often as the Government is satisfied that the ordinary courts are inadequate to secure the

effective administration of justice and the preservation of public peace and order and that is therefore necessary that

this Part of this Act shall come into force, the Government may make and publish a proclamation declaring that the

Government is satisfied as aforesaid and ordering that this Part of this Act shall come into force”.

This, then, is the statutory provision envisaged by Article 38.3.1 of the Constitution:

“Special courts may be established by law for the trial of offences in cases where it may be determined in accordance

with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the

preservation of public peace and order”. (Emphasis added)

16. Accordingly: (i) Section 3(2) of the Act of 1972 can not be relied upon except when Part V of the Act of 1939 is in force.

(ii) Part V of the Act of 1939 can be in force only when the Government has made a proclamation declaring that the

ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and

order.

(iii) This form of words precisely mirrors that to be found in Article 38.3 of the Constitution. The Act of 1939, in fact,

provides for the circumstances where the inadequacy of the ordinary courts is to be ‘determined in accordance with such

law’.

17. Section 3(2) of the Act of 1972 relates exclusively to proceedings “under s.21 of the Act of 1939”. This Section declares that:

“It shall not be lawful for any person to be a member of an unlawful organisation. This offence is a scheduled offence for

the purposes of Part V of the Act of 1939: see s.36 of that Act”.

18. I have very carefully considered the judgment of Charleton J. in the present case, and the basis upon which it arrives at the

conclusion that the claim of unconstitutionality should be dismissed. There are significant parts of that judgment with which I entirely

agree. Firstly, and most important I agree, as Charleton J. says at para. 29, evidence of this sort is admissible only on a charge of

membership of an unlawful organisation and only in the context of a declaration by the Government that the ordinary courts are

inadequate.

Secondly, I agree with Charleton J. where he quotes Mr. Justice Geoghegan in Kelly where he sets out the history of s.3(2) and

comments:

“it is perfectly clear that the legislation has been passed in the context of preserving the security of the State and the

legitimate concern that it will not in practice be possible in many, if not most, cases to adduce direct evidence from lay

witnesses establishing the illegal membership. Such witnesses will not come forward under fear of reprisal”.

19. Geoghegan J. also makes the very salient point that:

“Even without the statutory provision, informer privilege may involve more than merely refusing to divulge the name of an

informer. Surrounding evidence which would be likely or might to tend to disclose the identity of the informer would itself

be protected by the privilege in the sense that it may not be allowed to be adduced under cross-examination”.

20. I do not consider that this Court has the power, even if it were inclined to do so, to order the use of some sort of “special

advocate”, as they are dubbed in other jurisdictions, to secretly examine the papers which point to the concerns of the authorities

and to make representations on behalf of an accused person, though not on his instructions. I am disposed to agree with the

judgment of Carney J. in DPP v. Special Criminal Court [1999] 2 IR 60 but the salient point is that the merits or otherwise of a special

advocate system is for the legislature to consider and not for this Court to pronounce upon. The fact that such a system has been

introduced, in one degree or another, in other jurisdictions is simply nihil ad rem to the question of whether or not s.3(2) of the 1972

Act is, or is not, repugnant to the Constitution.

21. There are, however, other aspects of the judgment of Charleton J. with which I am unable to agree. First and foremost amongst

these is the statement, at para. 27:

“In many other areas, it is necessary to use confidential information to forward police investigations and a prosecution

may, for instance, be initiated in consequence of a complaint by an informer. The withholding of such information from the

defence does not render a trial unfair”.

There is, of course, a world of difference between a prosecution initiated following anonymous complaints, whether by accomplices or

otherwise, and a prosecution which relies for evidence, wholly or mainly on a hearsay statement of the contents of such a third party

statement. We are concerned with the constitutionality of a provision providing for the reception in evidence of the latter, and not

the former, sort of material.

In my view the withholding of information from the defence is the single most common cause of miscarriages of justice. This was

perfectly illustrated in the appalling case of Mr. Frank Shortt, the details of which are adequately set out in my judgment in J.C.

(Supreme Court, unreported, 15 April 2015).

In that case, what Murray C.J. termed “a pot of iniquity” was concealed by the withholding from the defence of documentary

evidence of manifest relevance which subsequently came to light for reasons that were largely fortuitous.

In the context of this Section, I regard the case of DPP v. Cull [1980] 2 Frewen 36 as an unfortunate example of how little comfort

can be derived from the fact that these cases are prosecuted by or on behalf of the DPP and are heard by a panel of three

professional judges. There, material which was in no sense confidential was withheld from the defence so that the prosecution could

“spring it” on him in cross-examination. This took place at a trial before three judges in the course of which, as it was expressed in

the subsequent judgment of the Court of Criminal Appeal:

“it appears to this Court that the prejudicial effect was such that the Special Criminal Court found in these matters a

basis for disbelieving the denial by the accused of membership of the illegal organisation alleged”.

22. I agree entirely, as Geoghegan J. expressed it in Kelly, (cited above) at p. 122:

“It has been the practice apparently of the Special Court not to convict on the belief evidence alone. In my view that

practice is commendable though not absolutely required by statute. There may be exceptional cases where the Special

Criminal Court in its wisdom would be entitled to convict on the belief evidence alone”.

The comfort to be derived from this development is limited, in my view. It remains the case that a Special Court could convict, as the

law is currently interpreted, on belief evidence alone.

It is certainly interesting that the Special Court and, it appears, the DPP have adopted a policy of not convicting, or seeking a

conviction, in general, on the basis of uncorroborated evidence. But this practice in itself cannot decide the question of the

constitutionality of the Section.

23. During the course of this Appeal, counsel for the State answered in the affirmative a question from my colleague Mr. Justice

MacMenamin as to whether or not the Court, in construing s.3(2) would be empowered to elevate to a rule of law the current

practice whereby the Court will not convict on belief evidence alone. I believe this construction of s.3(2) is entirely open on the

wording of the statute.

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

basis of the opinion evidence. This is even more obviously the case if privilege is successfully asserted over the material which led to

the formation of the opinion. This is because these matters in combination tend to exclude any “examinable reality” from the case and

thereby undermine any potential avenue to effectively challenge the opinion evidence. The effect of this is wholly to subvert the

prospects of useful cross-examination and to exclude even the theoretical possibility of undermining the opinion by cross-examination.

This creates scope for the possibility of a conviction on opinion evidence only, which evidence is effectively unchallengeable.

25. But I do not consider that s.3(2) is capable solely of a construction which permits the result mentioned above. This would prevent

a trial so conducted from being a trial “in due course of law”.

To hold a section to be unconstitutional for that reason would be a far reaching finding and one not lightly to come to in relation to a

statute designed to combat an undoubted subversive threat which is well capable of intimidating witnesses. Indeed, even apart from

that particular context, a court should in any event adopt any constitutional construction of an impugned section which may be open,

in preference to declaring the Act to be unconstitutional. Thus in East Donegal Co-operative Limited v. Attorney General [1970] I.R.

317, Mr. Justice Walsh said, at 341:

“An Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in

accordance with the Constitution: and it is not only a question of preferring a constitutional construction to one which

would be unconstitutional, where they both may appear to be open, but it also means that in interpretation favouring the

validity of an Act should be given in cases of doubt”.

In the present case the effect of the Act on the face of it is simply to render the opinion of the Chief Superintendent admissible in

evidence, whereas it would otherwise be inadmissible. But the Section does not attempt to require a court to place any particular

weight upon the evidence or to interpret it in any particular way. It is, no doubt, for that reason that counsel for the State was able

to agree, on the hearing of this appeal, that the Court would be empowered to elevate to a rule of law the current practice whereby

the trial court will not convict on belief evidence alone. As s.3(2) is currently construed, and was construed by the learned High Court

judge in this case, it remains quite possible to convict on unsupported belief evidence whose grounds are concealed from the

defendant.

26. It should also be noted that in the various areas of law, including that relating to the evidence of accomplices, a legal requirement

for corroboration before a conviction can properly be had was developed by the judges and became part of the Common Law in that

way. It appears to me that the evidence rendered admissible by s.3(2) is entirely open to such a development. It also seems to me

that it is necessary so to interpret s.3(2) in order to arrive at a constitutional construction of the subsection, as required by the

dictum cited above from Walsh J. in East Donegal.

27. In this connection I agree with much of what is said by Charleton J. at paras. 40ff of his judgment in this case. I agree, for

instance, that “a plain reading of the impugned subsection… makes it clear that belief evidence is admissible”. I also agree that:

“The practice over decades both by the prosecuting authorities and by the Special Criminal Court establishes, to a

degree, the reasoned basis upon which the initiation and condemnation of accused persons on the charge of membership

of the self-styled IRA is founded”.

I agree with Mr. Justice Charleton when he says that:

“This charge is vital to the maintenance of the democratic polity on this country”.

I agree, in general, with what Charleton J. says about safeguards in the use of evidence under s.3(2) and with his conclusion that:

“Among those safeguards is that belief evidence should not stand alone but that the charge should otherwise be

supported by some other piece of evidence, or some admissible circumstance, which supports that belief”.

28. I have carefully considered what is said by Mr. Justice Charleton at para. 40 of his judgment:

“over decades now such belief evidence has been supported by some other evidential circumstance whereby, analysed

together, that evidence may be characterised as collectively sufficient to establish the liability of the accused to be

convicted, whether defence evidence has been given or not. The several statements as to the practice of the Special

Criminal Court in approaching such belief evidence and the rightful reluctance of the Court to convict where belief

evidence stands alone, supports the constitutionality of the impugned subsection in admitting such belief evidence at trial

in the context of the safeguards which the charge attracts. Among those safeguards is that the belief evidence should

not stand alone but that the charge should otherwise be supported by some other piece of evidence, or some admissible

circumstance, which supports the charge. On the current case law, that support would be independent of the belief

evidence. Of course all evidence should be credible”.

29. It does not take from my agreement with the underlined sentence, above, that I would hold that the requirements of Article 38 of

the Constitution would not be met unless, in a particular case, the belief evidence of a Chief Superintendent were supported by some

other evidence that implicates the accused in the offence charged and is independent of the witness giving the belief evidence. Quite

independently of what the practice of the Special Criminal Court has been, (and it has never gone so far as to hold that a conviction

may never be had on belief evidence solely) I believe that s.3(2) is not unconstitutional because it is capable of being construed as

requiring the evidential support described in this paragraph.

30. I see no difficulty in describing evidence of the sort referred to in the last paragraph as “corroborative”. But in deference to

Charleton J.’s well taken point that “misstatement of case law in argument on that complex context [of corroboration] is a real

danger”, I am quite happy not to use the term “corroboration” and do not consider that anything is lost by that.

31. I agree, of course, with Charleton J. that “as to the particular weight that would be attached to that belief evidence and the

other evidence in the trial, that is a matter for the Court of trial”. I also agree that the relative importance attached to the two types

of evidence will of course vary between one case and another.

Conclusion.

32. I believe that a constitutional construction of s.3(2) of the Act of 1972 requires that the belief evidence of a Chief

Superintendent be supported by some other evidence that implicates the accused in the offence charged, is seen by the trial court

as credible in itself, and is independent of the witness who gives the belief evidence.

I would therefore dismiss the appeal.