Supreme Court dismisses appeal claiming Section 3(2) of the 1972 Act violates fair trial rights under Article 38.

An Chúirt Uachtarach

The Supreme Court

Record number: 2006/5362 P

Appeal number: 298/2009

Denham CJ

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 Charleton delivered on Thursday the 17th day of December 2015.

1. Section 3(2) of the Offences Against the State (Amendment) Act 1972 renders admissible in evidence the belief of a Chief

Superintendent of An Garda Síochána that a person accused of the criminal offence of membership of the self-styled Irish Republican

Army, is a member of that proscribed organisation. Testimony of what a witness has seen or heard, or evidence from an expert as to

opinion, is admissible in the ordinary way in criminal trials; but not what a witness believes. This exception to the rules of evidence is

confined solely to that charge of membership. The plaintiff/appellant Thomas Redmond, having been convicted on that charge asserts

that this section of the Act of 1972 infringes the Constitution. Essentially, it has been argued on his behalf that the guarantee of a

fair trial on a criminal charge, as set out in Article 38 of the Constitution, is violated by reason of this evidential exception. Particular

issues in relation to the substitution of special advocates with a limited brief have been argued on behalf of Thomas Redmond. Of

more concern is an issue cast aside in the appeal: the validity of a conviction on such belief evidence alone. This conviction was not

on that basis. Nevertheless future cases are of concern. The State as respondent to this appeal does not agree that the subsection

has any constitutional infirmity. In the High Court, the claim of Thomas Redmond was rejected by McMahon J, [2009] IEHC 201, from

which judgment this appeal has been taken. This decision affirms the judgment of the High Court. In doing so, the view is taken that

the subsection complies with Article 38 of the Constitution where such belief evidence is supported by other evidence from the

totality of which evidence the court of trial may be satisfied of the guilt of the accused beyond reasonable doubt.

Precedent decisions

2. It might first be usefully commented that challenges to the operation of the relevant section of the Act of 1972 have been

mounted before and on a variety of grounds. As O’Donnell J, speaking for the Court of Criminal Appeal, commented in The People (DPP)

v Donnelly & Others [2012] IECCA 78 at para. 23:

The provisions of s.3 of the Act of 1972 have been the subject of repeated judicial consideration in the 40 years since

the enactment of that provision. Among the most important of these decisions are: O’Leary v. Attorney General [1993] 1

I.R. 102 in which Costello J. in the High Court rejected a challenge to the constitutionality of the provision; D.P.P. v.

Martin Kelly [2006] 3 I.R. 115 in which the Supreme Court unanimously concluded that the requirements of Article 38 of

the Constitution were satisfied in a case in which the Chief Superintendent gave belief evidence and claimed privilege on

the sources of his belief; D.P.P. v. Binéad and Donohue [2007] 1 I.R. 374, in which this Court concluded that where belief

evidence under s.3(2) of the Act of 1972 was admitted and there was a claim for privilege in respect of the underlying

facts, materials or sources which led to the belief, the trial was not unfair in circumstances where the court had ruled

that it would not convict without support of uncorroborated evidence of that belief; and Redmond v. Ireland [2009] 2

I.L.R.M. 419 in which the Court concluded that s.3(2) was not unconstitutional or contrary to the E.C.H.R.

3. While a challenge based on Article 6 of the European Convention on Human Rights has not been proceeded with on this appeal,

apparently due to the European Convention on Human Rights Act 2003 not being in force at the relevant time, the jurisprudence of

the European Court of Human Rights is also of assistance in terms of applying a rigorous analysis to the challenge mounted by Thomas

Redmond. Of particular relevance is the reasoning in the judgment in Donohoe v Ireland (Application No 19165/08, decision of 12th

December, 2013).

Background

4. On the 1st October 1999, two premises under the control of Thomas Redmond were searched by gardaí pursuant to a warrant.

These properties were at 10 The Grove, County Wexford and at The Gatepost, County Wexford. A few days later, arms dumps were

uncovered in the same county: one at Kilallen, Castlebridge, was discovered on 4th October, and another at Shelmalier Commons was

found on the 5th October. In consequence of what was found within his properties, Thomas Redmond was arrested and was later

charged with membership of an unlawful organisation contrary to s. 21 of the Offences against the State Act 1939, as amended by s.

2 of the Criminal Law Act 1976.

5. Thomas Redmond was tried on an indictment that specified that as of the date of the search of his premises he was a member of

an unlawful organisation styling itself the Irish Republican Army, or the IRA, or Óglaigh na hÉireann. After a trial before the Special

Criminal Court lasting approximately a week, he was convicted of this single offence, the three judges of the court delivering a written

judgement dated 22nd April, 2002. In essence, the Special Criminal Court accepted the evidence of a Chief Superintendent that

Thomas Redmond was a member of the self-styled IRA. On the basis of the evidence of the Chief Superintendent, the court was

prepared to convict. The final written reasoning, however, was to convict based on that evidence and on the supporting forensic

evidence against Thomas Redmond. He then appealed that conviction to the Court of Criminal Appeal, which affirmed the conviction in

a judgement dated the 24th February, 2004. He then sought the necessary leave to appeal this decision to the Supreme Court under

the then existing constitutional provisions for appeal pursuant to s. 29 of the Courts of Justice Act 1924, claiming that such second

appeal should be granted because there existed a point of law of exceptional public importance. On the 8th July, 2004, the Court of

Criminal Appeal refused to grant a certificate for leave to appeal to the Supreme Court. Thomas Redmond then issued a plenary

summons in November 2006, seeking the declaration of unconstitutionality, the sole relief claimed on this appeal. The matter came on

for hearing in the High Court by way of oral evidence and submissions over five days before McMahon J, who rejected the claim for

the declaration by written judgement dated the 30th April, 2009. From that High Court judgment, this appeal was heard in October

2015.

Facts and arguments as to unconstitutionality

6. In considering this appeal, it is to be noted that none of the facts as found by the Special Criminal Court in the criminal trial, or as

found by the High Court on the plenary hearing of the challenge to the constitutionality of the particular section of the Act of 1972,

have been challenged. The approach taken by the defence at the trial before the Special Criminal Court is also relevant. Specifically,

it was conceded by the defence, on behalf of the accused, that the Chief Superintendent giving evidence that Thomas Redmond was

a member of this unlawful organisation was not lying. Furthermore, no application was made for discovery of any materials that might

underlie that officer’s belief. While it may be that such materials attracted privilege where the source was an informer, the privilege

there being that of the informer, a procedure exists according to the existing case law for the examination of such material, initially,

by counsel for the prosecution, and if the defence so requests, by the court of criminal trial itself in order to ensure that no such

material gives rise to the innocent at stake exception to any claim of privilege. Nor was any challenge made where a claim of privilege

was asserted by the Chief Superintendent as to his sources of information. Finally, no claim was made by the defence before the

court of criminal trial that any procedure involving a special advocate should be applied related to the reception of the evidence by

the Chief Superintendent as to his sources. Thomas Redmond, as the accused in that criminal trial, did not give evidence in his own

defence, which, of course, is his right.

7. The Special Criminal Court noted that much of the trial of the proceedings before that court consisted of a detailed ballistic

examination of the materials found at the two premises of Thomas Redmond in County Wexford and a comparison of those materials

with the weaponry and paraphernalia found at the two arms dumps in that county. The Special Criminal Court, following a

consideration of the relevant evidence, found that much of what was found on the two properties of Thomas Redmond consisted of

“items that would be found in engineering workshops throughout the world and are items which have a myriad of innocent uses.”

While the court found that “many of these items could have been adopted to form component parts of firearms or ammunition … it

would be stretching imagination beyond acceptable limits … to conclude beyond reasonable doubt that the majority of these items

had been put to that use.” Two items, however, were found by the court not to have possible innocent uses. As the gardaí arrived to

search the premises of Thomas Redmond at The Grove, County Wexford, he was observed to have thrown an object from a rear

window by Detective Garda O’Driscoll. The court of criminal trial made the following finding of fact in relation to this object:

Insofar as the metal object which Detective Garda O’Driscoll saw the accused throw from a rear window of the premises

of … The Grove, County Wexford, on the 1st of October is concerned, the Court heard evidence from Detective Garda

Shane Henry, who is attached to the ballistics section of the Garda Technical Bureau and who the Court accepts is an

expert in the field of ballistics, that, having examined that object, it was his opinion that it had been processed from a

piece of metal similar to metal cut-offs which he had found on the 1st of October 1999 on the ground outside a workshop

located on the accused’s premises at Forth Commons, Co. Wexford. In this regard, Garda Henry said it was clear from an

inspection of the said object that it had been partly worked upon in the sense that it had been subjected to drilling and

that the ends had been flattened. Moreover, Garda Henry expressed to the view that, in its present state, that object is

a housing mechanism which is an internal part of an improvised grenade. In this regard, in the course of his evidence,

Detective Garda Henry described in detail the component parts of this metal object and he explained how, in his view, it

comprised the housing mechanism for the internal part of an improvised grenade; pointing out that it fitted into a warhead

and is part of the firing mechanism for the warhead. Detective Garda Henry referred to drawings which he had found at

the arms dump at Kilallen which he said were sketches of an improvised grenade launcher which is divided into two parts;

the first part being the launch tube and the breach for the firing mechanism and the other part being the trigger housing

and shoulder stock assembly. Detective Garda Henry said that the object … logically fits in such an assembly and he then

referred to what he described as an improvised spigot grenade launcher, which was also found at the arms dump at

Kilallen, into which the metal object fitted because the threading to both was identical. … Detective Garda Henry was

adamant that, in his opinion, that metal object was component part of a grenade; a view which the Court had no

difficulty in accepting because it seems to the court that it defies logic and reason that, if the said metal object had been

in the accused’s possession for the purpose of innocent use, he would have thrown it out of his window within minutes of

a group of members of the Garda Síochána coming with search warrant to search as house. In the view of the Court, that

fact, coupled with detective Garda Henry’s opinion with regard to the purpose for which the said object had been

processed leaves the Court in no doubt whatsoever that it was intended as a component part of a grenade.

8. As to the other object, found in a family car that was attributed to the possession of Thomas Redmond, the Special Criminal Court

held as follows:

Insofar as the improvised firing pin which, on the 1st day of October 1999, members of the Garda Síochána had found in

the boot of a red Citroen car located at [the premises of the accused] is concerned, detective Garda Henry gave

evidence that the said improvised firing pin was the same as firing pins found in improvised weapons found by members of

the Garda Síochána as the arms dumps located at [Kilallen] and at Shelmalier, Co. Wexford. … In addition, while … the

Court is not satisfied, notwithstanding the evidence … given by Garda Henry and Sgt Ennis that, individually, a large

number of the fruits of the searches of the accused’s premises at … The Grove and The Gatepost are likely to have been

adapted to form component parts of firearms or ammunition, collectively, these finds, when compared with what was at

the arms dumps located at Kilallen and Shelmalier remove from the realm of what might have been considered suspicion of

a connection between the accused and these arms dumps and, in the view of the Court, converts that suspicion into a

belief beyond reasonable doubt. In other words, it goes beyond what might be considered mere coincidence.

9. The other aspect of the case in respect of which Thomas Redmond was convicted before the Special Criminal Court was the

evidence of Chief Superintendent Michael Murphy, admissible by virtue of s. 3(2) of the Act of 1972. He gave evidence to the effect

that it was his belief that Thomas Redmond was as of the date of his evidence and as of the 1st of October, 1999, a member of the

unlawful organisation styling itself the Irish Republican Army, otherwise the IRA or Óglaigh na hÉireann. It was submitted to the court

of criminal trial that accepting as the sole evidence in the case the belief of a Chief Superintendent that an accused was a member of

an unlawful organisation would amount to unfairness. The Special Criminal Court did not accept this proposition but carefully reasoned

thus:

At the same time, the Court recognises that it is not entitled to be guided by the evidence of a Chief Superintendent

given in accordance with the provisions of section 3(2) of the Act of 1972 merely because the Chief Superintendent gives

verbal expression to a particular belief. Before a Court can decide that a conviction of an offence [of membership of an

unlawful organisation] is justified by the evidence of a Chief Superintendent given in accordance with the provisions of

section 3(2) of the Act of 1972, the Court must assess the credibility of that Chief Superintendent and, in the light of

that assessment, must conclude beyond reasonable doubt that he is a credible person and worthy of belief. Furthermore,

although … where a person accused of an offence [of membership of an unlawful organisation] gives sworn testimony

denying that charge and contradicts that of a Chief Superintendent, the Court has to accept that “the value and

cogency to be attached to the expression of the Chief Superintendent’s belief is very much diminished”, it does not

follow that the accused person is under any obligation to give evidence and neither is the Court entitled to draw any

inferences which are unfavourable to the accused arising from his failure to give evidence. In this regard, the Court

recognises and acknowledges that, unless and until the Court determines otherwise, Thomas Redmond is cloaked with a

presumption of innocence; a presumption which entitled him to remain silent throughout the investigation of the offence

which is alleged against him subject certain statutory exceptions which are not relevant to this case and a presumption

which entitles him to remain silent throughout the trial of these proceedings without that silence being held against him.

The Court also accept that in accordance with the decision by this court on the 3rd day of May 2001 in a case of The

Director of Public Prosecutions v Dermot Gannon, the results of an investigation into the alleged offence cannot be relied

upon to support the belief of a Chief Superintendent that an accused person is a member of an unlawful organisation but,

again, the Court notes that, in that case, the Court concluded that it is entitled to rely on the unchallenged opinion

evidence of a Chief Superintendent with regard to membership of an illegal organisation. In that regard, while it was

suggested to Chief Superintendent Murphy under cross-examination that the second statement which he made was

choreographed by his legal advisers and by the member of the Garda Síochána who is in charge of the investigation for

the purpose of avoiding the consequence of the decision in Gannon’s case, the Court does not accept that that was so

and, in particular, it accepts without reservation Chief Superintendent Murphy’s assertion that he was not aware of the

decision in Gannon’s case at the time that he made a second statement and, indeed, did not become aware of it, until he

was subjected to cross-examination in the course of these proceedings.

Arising from the foregoing, the Court confirms that it paid very careful attention to the demeanour and body language of

Chief Superintendent Michael Murphy; both while he gave his evidence in chief and while he was subjected to a rigorous

cross-examination by counsel for the defence. In the view of the Court, while it was somewhat surprised by the Chief

Superintendent’s assertion that he made a second statement with regard to the prosecution against the accused without

referring to the first statement which he had made, he presented to the Court as a truthful person; so much so, that the

Court was quite satisfied beyond any reasonable doubt that Chief Superintendent Murphy firmly believes that Thomas

Redmond is and was at all material times hereto, a member of the IRA. Moreover, the Court rejects the submission of

counsel for the defence that the provisions of section 3(2) of the [Act] of 1972 necessarily requires that the must be

examinable reality to the sworn testimony of a Chief Superintendent of the Garda Síochána whereby he expresses the

opinion that a person is a member of an unlawful organisation before the Court is entitled to act on foot of that

testimony.

10. At the end of the written judgement of the Special Criminal Court, the reasons for conviction were summarised not simply on the

basis of belief evidence but on a consideration of the overall body of evidence:

In the light of the foregoing, the Court is quite satisfied by the forensic evidence which it heard from Detective Garda

Henry and from Detective Sgt Ennis that the object which the accused threw from the window at … The Grove, Co.

Wexford on the 1st of October 1999 shortly after members of the Garda Síochána commenced to search these premises

and the improvised firing pin which was found in the red Citroen car which the accused was accustomed to driving, and

the other items referred to established beyond any doubt that the accused had associations with firearms which, in the

view of the court, bears out Chief Superintendent Murphy’s opinion that he is a member of an unlawful organisation.

11. The later plenary action in the High Court, asserting the unconstitutionality of s. 3(2) of the Act of 1972, involved the calling of

evidence on both sides. In submissions and in evidence, it was asserted on behalf of Thomas Redmond that where a Chief

Superintendent testifies that he believes that an accused is a member of the self-styled IRA and, in addition, asserts the privilege of

the informers or informer on which that information is based, the accused is put at particular disadvantage. A Chief Superintendent

could be taken in by bogus information from an informant, it is asserted, and would therefore, in that context, present as having the

demeanour and integrity of an honest and reliable witness. The informant himself, or herself, will never give evidence and thus, it is

claimed, an accused could be convicted on evidence which the Special Criminal Court does not have the chance to confront face-to-

face and which could be unreliable or malicious. The argument advanced by Thomas Redmond was said to be best encapsulated in a

passage from the concurring judgment of Fennelly J in The People (DPP) v Kelly [2006] 3 IR 115 wherein the Supreme Court affirmed

the compatibility of a claim of privilege with fair trial in these precise circumstances. Fennelly J stated, at p. 135:

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.

12. It should be remembered, however, that the procedures before the Special Criminal Court allow an accused to seek discovery in

advance of relevant materials. Where there are documents recording meetings with informers, or information from informers otherwise

noted or recorded, the prosecution would be obliged to claim privilege in respect of these. That privilege cannot stand, however, if

anything in the material gives rise to a reasonable doubt as to the guilt of the accused or, in other words, nondisclosure puts the

assertion of innocence in peril; DPP v Special Criminal Court [1999] 1 IR 60, at p. 83. Such documents would not be given to the

accused in the event of their pointing to the innocence of the accused. Rather, prosecution counsel would, in the role which

O’Flaherty J characterises as being that of “ministers of justice”, scrutinise the documents as to the innocence at stake exception

and report their findings to the defence; DPP v Special Criminal Court at p. 87. There are basically only two possible reports of such

scrutiny: firstly, that innocence has not imperilled by anything within the materials; and, secondly, if it is that the prosecution will not

proceed with the charge because the privilege of the informer is not theirs to waive. The defence are, in addition to scrutiny by the

prosecution, within their rights to seek to ask the court of three judges sitting as the Special Criminal Court to look at the documents

themselves, and to rule if innocence is anywhere supported therein.

13. On behalf of Thomas Redmond, however, it is asserted that this safeguard is not satisfactory. Even though it is accepted on his

behalf that judges can read documents and not have regard to them as evidence as to whether the prosecution have proved the

charge beyond reasonable doubt, in other words not be prejudiced thereby, that procedure is asserted to be unsatisfactory. On

behalf of Thomas Redmond it is argued that even if the court looked at the documents in the possession of the Chief Superintendent,

the judges themselves could just as easily be misled by unreliable informants. Essentially, it was claimed on this appeal that without

confrontation with the informant to assess the reliability of his information that the accused was a member of the self-styled IRA, a

trial would be fundamentally unfair and contrary to Article 38.1 of the Constitution. The appointment of a special advocate, apart

from and in addition to defence counsel, it is claimed for Thomas Redmond, would make that situation better but not perfect. In fact

it was conceded on behalf of Thomas Redmond that the special advocate procedure would not save the impugned subsection from

unconstitutionality. A special advocate would not be entitled to communicate any interaction he might have with the informer to the

accused, thus undermining lawyer-client confidentiality and trust. The scope for cross-examination on the basis of the special

advocate’s reports to ordinary defence counsel would be limited, it is claimed, and would certainly be less than that which would

apply in an ordinary criminal trial. Thus the system as it now is, and the system as it might be reformed to incorporate special

advocate procedures would both fail, Thomas Redmond argues, to secure a fair trial. It might be further commented that the privilege

of an informer would be infringed were he or she obliged to be reveal his or her identity to such a special advocate.

The ostensible necessity for the subsection

14. Before the High Court in the plenary action and before this Court on appeal, argument on both sides addressed the backdrop

against which the impugned section of the Act of 1972 was introduced and which continues today. McMahon J summarised the

evidence which he accepted in the High Court in that regard thus:

Detective Superintendent O’Sullivan testified that he had served in An Garda Síochána for thirty-two years and had spent

over twenty years and involved in the investigation of subversive crime. His responsibilities are State security, the

gathering and analysis of intelligence and the investigation of subversive crime within the jurisdiction. Referring to the

increased activities and attacks of the IRA in the 1930s he explains the necessity for the introduction of the Offences

against the State Act in 1939. The IRA was declared to be an unlawful organisation and that suppression order still

continues in this jurisdiction. In detailed evidence to the court gave a brief history of the IRA and the emergence of a

breakaway faction in around 1969, now known as the Provisional IRA. Having outlined the objectives of the IRA, he gave a

description of the treatment meted out to people who are suspected of assisting police investigations, which included

interrogations and torture and sometimes resulting in executions. The fact that it is an oath bound secret organisation

divided into cells creates problems for the gardaí making it very difficult to infiltrate the organisation and gather evidence

to prosecute member volunteers. The organisation is very energetic and trying to identify members of the public who

provide information to the police and are very assiduous in collecting evidence including closely examining books of

evidence to identify any such persons. If anyone is identified in this manner it usually results in serious torture or death.

This represents a serious problem for the gardaí who bring prosecutions before the ordinary courts where witness and jury

intimidation are not unknown. In 1972 the Government introduced an amendment to the Offences against the State Act

1939. Section 3(2) of this Act seeks to address the difficulties which confronted the law enforcement agencies in these

situations. The witness also gave evidence that there are only about 69 members of the force of Chief Superintendent

status or higher who can give evidence under [this provision]. In fact, he testified that only 17 or so have the relevant

experience to give such evidence in practice.

The threat continues today. In 1994, the leadership of the Provisional IRA adopted a policy of cessation of military

operations. This caused unrest with some hardliners and after the October Convention in 1972, for these policy matters

were discussed within the republican movement, a breakaway group styling itself “32 County Sovereignty Committee”

(subsequently the “thirty-two County Sovereignty Movement”) was established. It was from this grouping that the “Real

IRA” was born. This group is committed to securing its objectives by physical force and was strongly opposed to the

political process favoured by the Provisional IRA. Subsequently, a campaign of violence throughout Ireland and the United

Kingdom was carried out by this group. Detective Superintendent O’Sullivan gave details of the threat which this group

represented for the State and the institutions of the State. He gave direct evidence of the many investigations into the

activities of the IRA in which he was involved and declared that a common feature in all of these investigations is the

presence of fear, intimidation and the threat of reprisals. As a result witnesses have refused to give evidence in court,

even when they have initially made statements to the gardaí. When asked by counsel for the State, “Has it (ie section

3(2)) been an important tool in terms of prosecuting at obtaining convictions in respect of alleged offences of membership

of subversive organisations, such as the Provisional IRA and the other variants of the IRA?” the witness replied “Yes,

Judge. In the last number of years it has been of enormous help to An Garda Síochána in endeavouring to combat the

threat posed by the IRA, and I believe if it were not there we would not have succeeded in counteracting that threat”.

He went on to say that the threat is an ongoing one and that without section 3(2) the hands of the police would be tied

in their efforts to combat terrorism and the threat posed by the IRA.

15. To the evidence briefly referred to and the arguments summarised above, it might be added that the self-styled IRA has purported

to carry out a campaign of sadistic violence and terrorism with the ostensible aim of achieving a united Ireland on behalf of all of the

people of this island both before and after the Act of 1972 was passed. There has been no mandate for this. Dissent from the

decision to cease violence in 1994 continues to pose a real threat of igniting further civil conflagration within this island. As this Court

has previously commented, through the judgment of Geoghegan J at p.121 in Kelly, the legislative backdrop enables “a reasonable

inference … that the subsection was enacted out of bitter experience.”

High Court judgment

16. In the High Court, McMahon reasoned thus that the impugned section was in conformity with constitutional guarantees:

At the end of the day, what is significant about s. 3(2) is that it merely makes admissible, evidence of what is the Chief

Superintendent’s belief. The court does not have to accept it, much less convict on it. Its abnormality in that regard is

recognised in the system by the reluctance of the D.P.P. to proceed on such evidence only, as well as the reluctance of

the Special Criminal Court to convict on it only. 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 advisors. 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. 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 this evidence and all the weaknesses 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 The People (D.P.P.) v. Binéad [2007] 1 I.R. 374.

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

clearly recognised the disadvantage which flows from and accrues to the defence in a trial, from the admission of

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.”

I am not willing to say, however, that it could never be sufficient. The circumstances of each case will differ and that is

why so much responsibility is, at the end of the day, placed on the trial court.

It is also important to note that the Chief Superintendent gives his evidence in open court. The court has the obligation

and the opportunity to assess the honesty of that belief. This belief evidence can be subjected to cross-examination. The

court can examine, if it considers it necessary, the material on which the belief is based admittedly, out of sight of the

accused, and make its own assessment as to whether it is sufficient to support the belief. (Director of Public Prosecutions

v. Special Criminal Court [1999] 1 I.R. 60; The People (Director of Public Prosecutions) v. Binéad [2007] 1 I.R. 374, at

396).

Contrary to the argument advanced by the plaintiff, I do not accept that there is a presumption that the Chief

Superintendent is telling the truth. The accused can challenge the privilege. He can cross-examine the Chief

Superintendent (perhaps a risky tactic in many cases) and he can give evidence himself. Fennelly J. speculates that if the

accused gives evidence to that effect that he is not a member of the relevant organisation, it would be very difficult to

convict him on the Chief Superintendent’s “bare” evidence, and I agree. Finally, an appeal lies from the Special Criminal

Court’s decision to the Court of Criminal Appeal and, in some limited circumstances, on an exceptional point of law to the

Supreme Court.

For all these reasons, and given the ongoing threat that the named organisations still present to the security of the

State, I am not satisfied that s. 3(2) is unconstitutional or, indeed, contrary to the Convention on Human Rights.

17. The challenge cannot be seen in isolation either from the facts as found by the trial judge or from the context in which the

impugned section is set.

The legislative and constitutional context

18. Article 40.6 of the Constitution guarantees, “subject to public order and morality”, liberty for the exercise of the “right of the

citizens to express freely their convictions and opinions” and of the “right of the citizens to form associations and unions.” Whereas

laws regulating the manner in which the rights to form an association or a union may be passed, under Article 40.6.2º such laws may

not contain any “political, religious or class discrimination.” Therefore, proscribing an organisation as unlawful only accords with the

constitutional guarantee of fundamental rights of association, where the purpose of that organisation or its methodology constitutes

an attack upon the public order of the State. In nature, the State is Christian and democratic. According to the Preamble to the

Constitution the people of Ireland enacted the Constitution “seeking to promote the common good, with due observance of Prudence,

Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our

country restored, and concord established with other nations.” Article 1 of the Constitution affirms the “inalienable, indefeasible, and

sovereign right” of the Irish nation to choose its own form of government and “to determine its relations with other nations”. Ireland,

thus, has but one government and one military. While the island on which we live is divided into two jurisdictions, the text of the

Constitution makes clear that any move towards unity must accord with the nature and fundamental doctrine of the State. In

particular, Article 3 provides:

It is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island

of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about

only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the

island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent

of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this

Constitution.

19. Any invocation of the Constitution by the Oireachtas within the text of legislation is highly unusual. In the context of outlawing an

association of citizens, s. 18 of the Act of 1939 clearly set out both the legislative framework for proscribing an organisation as

unlawful and the legislative purpose for such an enactment. Section 18 provides:

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

associations, it is clear by 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 any 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.

20. This section does not have automatic effect by virtue of having been passed by the Oireachtas. Instead, it is dependent on the

Government, under s. 19 of the Act of 1939, being “of opinion that any particular organisation is an unlawful organisation”. Where

that is so, a declaration may be published proscribing the organisation as unlawful. In the history of the State, the only organisation

in respect of which the Government has been of that opinion is the organisation falsely styling itself the Irish Republican Army, or the

IRA, or Óglaigh na hÉireann, of which the offshoots of the Continuity IRA or Real IRA continue to be under that proscription. Any such

declaration that an organisation is to be outlawed may, under the legislation, be challenged before the High Court which, upon hearing

evidence, may under s. 20 of the Act of 1939, overturn the declaration of the Government, subject to appeal in the ordinary way. It

is an offence under s. 21 of the Act of 1939, to be a member of such an unlawful organisation. Section 21 provides:

(1) It shall not be lawful for any person to be a member of an unlawful organisation.

(2) Every person who is a member of an unlawful organisation in contravention of this section shall be guilty of an offence

under this section and shall—

(a) on summary conviction thereof, be liable to a fine not exceeding fifty pounds or, at the discretion of the court,

to imprisonment for a term not exceeding three months or to both such fine and such imprisonment, or

(b) on conviction thereof on indictment, be liable to imprisonment for a term not exceeding two years.

(3) It shall be a good defence for a person charged with the offence under this section of being a member of an unlawful

organisation, to show—

(a) that he did not know that such organisation was an unlawful organisation, or

(b) that, as soon as reasonably possible after he became aware of the real nature of such organisation or after the

making of a suppression order in relation to such organisation, he ceased to be a member thereof and dissociated

himself therefrom.

(4) Where an application has been made to the High Court for a declaration of legality in respect of an organisation no

person who is, before the final determination of such application, charged with an offence under this section in relation to

that organisation shall be brought to trial on such charge before such final determination, but a postponement of the said

trial in pursuance of this sub-section shall not prevent the detention of such person in custody during the period of such

postponement.

21. Article 38.1 of the Constitution in prohibiting trial on any criminal charge “save in due course of law” requires the application of

basic principles of justice to the criminal process; State (Healy) v Donoghue [1976] IR 325, at p. 335 per Gannon J. In terms of the

many cases opened on this appeal, the most apposite explanation as to the basic elements of the guarantee to every accused of a

fair criminal trial is to be found in the judgement of Costello J in Heaney v Ireland [1994] 3 IR 593, at p. 605-606, where he said:

It is an Article coached in peremptory language and has been construed as a constitutional guarantee that criminal trials

will be conducted in accordance with basic concepts of justice. These basic principles may be of ancient origin and part

of the long established principles of the common law, but they may be of more recent origin and widely accepted and

other jurisdictions and recognised in international conventions as a basic requirement of a fair trial. Thus, the principle

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

the law, or charged a second time with the same offence, the principle that an accused must know the case he has to

meet and that evidence illegally obtained will generally speaking be inadmissible at his trial, or all principles which are so

basic to the concept of a fair trial that they obtain constitutional protection from this Article. Furthermore, the Irish

courts have developed a concept that there are basic rules of procedure which must be followed in order to ensure that

an accused is accorded a fair trial and these basic rules must be followed if constitutional invalidity is to be avoided.

22. On this appeal the State have not argued that a trial which includes evidence of belief under s. 3(2) of the Act of 1972 infringes

the prohibition in Article 38.1 but is somehow excused by reason of the serious nature of the threat to the existence and authority of

the State which an unlawful organisation represents. A real and substantial risk that an unfair trial will result in consequence of a

legislative provision is not to be regarded differently from situations where trials have been prohibited on judicial review, or stopped by

the trial judge, due to causes such as extreme delay, or other forms of serious prejudice such as the loss of vital evidence of genuine

help in establishing the innocence of an accused. All such analyses are, in any event, fact dependent.

23. Where there is a real and substantial risk of an unfair trial due to either delay in prosecution or adverse publicity or the absence of

witnesses or the loss of evidence, which defect or defects could not be cured by appropriate rulings and directions of the trial judge

and by other actions to make the trial process fair, the trial should be prohibited; see Nash v DPP (Supreme Court, unreported, 29

January 2015) at paras. 14 and 15. While the community has the right to be protected from the recurrence of crime and while the

substance of this right must embrace the detection and prosecution of offenders, any ruling as to where the balance of fairness has

been overstepped in legislation must take into account the nature of the threat involved which the offence seeks to prohibit, the

responses open to an accused facing such a charge and whether the danger of unfairness complained of is, on the one hand, real or,

on the other hand, unsubstantiated. Where it is demonstrated, however, that the admission of particular categories of evidence takes

a criminal trial out of the core guarantees of the rights of a person accused of crime and presumed to be innocent, legislation enabling

that step cannot conform to Article 38.1 establishing that trials shall “be in due course of law”. In the balance of rights as between

the community and the accused, demonstrated unfairness in consequence of the admission of particular categories of evidence will

mean that the community’s right to ensure that offences are prosecuted must yield to the constitutional requirement that such

prosecutions embrace due process; see B v DPP [1997] 3 IR 140 per Denham J.

24. The Constitution, it must be remembered, always contemplated that threats to the State such as those represented by the

various iterations of the self-styled IRA could occur. Thus, Article 38 derogates from the ordinary rule that criminal charges should be

tried in the ordinary way either by judges in courts of summary jurisdiction or by a judge sitting with the jury where the charge was

serious. Article 38.3.1º provides:

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.

25. In that context, s. 3(2) of the Act of 1972 is operative only while Part V of the Offences Against the State Act 1939 is in force.

Only where the Government makes a declaration in accordance with Article 38.3.1º of the Constitution can Part V of the Act of 1939

be operative. The structure and organisation of those special courts before which alone a charge of membership of an unlawful

organisation can be tried, of which the only one is the Special Criminal Court, are a matter of law under with Article 38.3.2º. Under

the now current Rules of the Special Criminal Court 1972, the trial bench will consist of three judges from the three jurisdictions in

which crime is tried in the State, namely the High Court, the Circuit Court and the District Court. Such judges are likely to be criminal

law experts. Decisions as to conviction or acquittal are given by way of written ruling, in contrast to the declaration of a verdict of

guilty or not guilty by a jury in the ordinary way or, exceptionally, where it may be necessary to have an answer to a question from

the jury as posed by the trial judge.

Operation of the section

26. No comment is made hereby as to civil proceedings or as to the admissibility of opinion or belief evidence where the standard of

proof is that of probability. These comments are confined to criminal charges in the context of Article 38.1 of the Constitution. It is

established that proof beyond reasonable doubt of the offence of membership of an unlawful organisation is not otherwise available

save through the reception of evidence from a Chief Superintendent that the accused is in that officer’s belief a member of an

unlawful organisation. It is also clear that the proscribed unlawful organisation constitutes a usurpation of the authority of the State

and remains a threat to the entire community. Any source of evidence as to membership of that secret terrorist organisation cannot

come, as in the ordinary way, from witnesses to the commission of crimes or from surviving victims of crime. The evidence as

accepted by McMahon J establishes that were any person to leave the self-styled IRA and turn State’s evidence against his or her

comrades, the result would probably be murder. Hence, the source of evidence in these unique circumstances can only be from the

expertise of a small number of very senior police officers who are tasked with the role of intelligence in order to penetrate this closed

and retributive sphere. No other criminal charge carries, or could ever be predicted to carry, those unique challenges. As may readily

be appreciated, other crimes may be opportunistic or planned, spontaneous or organised, but such crimes leave physical signs in their

wake or can be testified to by those unfortunate enough to be their victims or by those who have otherwise relevant evidence to

give. Membership is the only crime in respect of which such belief evidence may be given; and rightly so. The unique set of challenges

and dangers which this necessary prohibition represents is not reproduced or echoed in any other criminal offence. Any endorsement

of constitutionality from this Court cannot therefore be adopted as a precedent for use in relation to any other area of criminal

evidence or procedure. Further, it is in the context of it being open for an accused to defend himself or herself against the charge

and the multiple safeguards available, that the impugned section of the Act of 1972 must be judged.

Safeguards

27. Through any claim of privilege on any kind of criminal charge, the normal entitlement of an accused to see all evidence relevant to

a charge is infringed. This does not mean that the result is necessarily an unfair trial. 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. Through the invocation

of a challenge, the accused may require first the prosecution and then the judge, if it is a jury trial, or judge where it is a summary

offence tried without a jury, or judges, where the Special Criminal Court is the court of trial, to examine the documents in question

with a view to scrutinising whether the innocence at stake exception should overrule the privilege. As the Supreme Court stated per

Geoghegan J in Kelly at p. 121, the section of the Act of 1972 impugned in these proceedings authorises the giving of evidence about

the basis for the Chief Superintendent’s belief but not to the extent that it interferes with or defeats a legitimate plea of privilege:

“As the normal rights of an accused are being infringed, it would seem to me that there must be a constitutional requirement that

such limitation be kept to a minimum.”

28. As a matter of the development of the common law, some categories of evidence are subject to a warning by the trial judge to

the jury of the dangers of acting on such evidence alone. Such categories include visual identification and accomplice to crime

evidence. While there is no requirement in the Act of 1972 that the belief of the Chief Superintendent be corroborated, or be

supported by, other external evidence to that belief, it is clear that over the decades of the operation of the section, a practice has

developed in the office of the Director of Public Prosecutions that such a charge should not be brought without supporting evidence.

While in the past it has seemed possible that such evidence alone might ground a conviction for membership of the self-styled IRA, it

is also clear that any bench of judges in the Special Criminal Court proposing to adopt such a course would be cognisant of how

serious a step this would be. While it does not assist to decide that a formal warning should be recorded in any such judgment of the

Special Criminal Court dependant only on such belief evidence, what matters is that this step would have been regarded as

extraordinary. As Geoghegan J noted in Kelly at p. 122:

It has been the practice apparently of the Special Criminal 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. Equally commendable is the

practice of the Director of Public Prosecutions of which the court has been informed, not to initiate a prosecution based

solely on the belief evidence. These self-imposed restrictions by the Special Criminal Court and by the Director of Public

Prosecutions are with a view to ensuring a fair trial. In this case, there was plenty of outside evidence and it was well

within the discretion of the Special Criminal Court to convict the appellant for the reasons given by the Court of Criminal

Appeal.

As is apparent, both in Kelly and in this case, there was supporting evidence. It is inappropriate to comment thereon as the weight to

be attached to evidence depends on the building blocks of the prosecution case, any challenge or evidence offered by the accused

and how such evidence fits into the particular factual matrix of any case. Peculiarly, this is a matter for the court of trial. Weighing

the evidence in the context of the particular building blocks of the prosecution case, in the context of any matter pointed to by the

accused and in the light of any evidence offered by the accused, is a matter of considering whether when the tribunal of fact retires

it comes to the conclusion that there is evidence there to convict on that charge or whether proof beyond reasonable doubt is

lacking.

29. In terms of how it may operate, only on a charge of membership of an unlawful organisation, only in the context of a declaration

by the Government that the ordinary courts are inadequate to secure the effective administration of justice, only before a bench of

three professional judges in the Special Criminal Court, only where a written ruling explains the acceptance or rejection of that

evidence, the impugned section of the Act of 1972 is bounded by safeguards which point to its exceptional nature and which support

the guarantee of a trial in due course of law in Article 38.1. Whereas, in argument on this appeal on behalf of Thomas Redmond, it has

been asserted that the very small number of gardaí with the necessary rank to give such evidence may be deceived, it is significant

that on the evidence before McMahon J, rank is not of itself regarded as sufficient without the officer possessing also the necessary

experience. The nature of that expertise and experience may, of course, be challenged through cross-examination on behalf of the

accused. As Geoghegan J commented in Kelly at pp. 120 to 121:

It is essential to consider the purpose of section 3(2) of the 1972 Act. Prima facie if the Garda Síochána have reliable

information that somebody is a member of a prescribed organisation there might be nothing to prevent them marshalling

the necessary witnesses to give direct proof of this. However, 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. The Special Court itself was established to avoid the mischief of

juror coercion and intimidation. In relation to all anti-terrorist offences, as a matter of common sense, there would be

equal apprehension about intimidation of witnesses. It is a reasonable inference to draw that the subsection was enacted

out of bitter experience. It is carefully crafted ensuring that the belief evidence must come from an officer of an Garda

Síochána not below the rank of Chief Superintendent. This is with a view to establishing trust and credibility as far as

possible. Counsel for the appellant accepts the concept of informer confidentiality but any extensive probing in relation to

the basis of the information irrespective of whether names are requested or not may inevitably undermine the protection

of the informer by affording clues to his identity. 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 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.

30. It was further urged on behalf of Thomas Redmond that cross-examination was so restricted by the section as to neutralise this

important aspect of fair procedures as a defence safeguard. This is not so. The experience and expertise of even a Chief

Superintendent claiming privilege can be challenged, and challenged with effect, where the underlying facts are exposed as grounding

the belief in an officer of insufficient standing. The life choices and activities of the accused as not supporting membership of the

self-styled IRA can be put to such a witness by the defence. Such questions have the potential to undermine belief evidence as may

evidence of denial by the accused or other relevant defence evidence. That senior officer, further, is constricted not to hold back

evidence with the purpose or effect of taking the defence unawares. In The People (DPP) v Cull [1980] 2 Frewen 36, an appeal in

respect of a conviction for membership of the self-styled IRA, evidence served prior to the trial only referred to the belief of the Chief

Superintendent. When the accused came to give evidence, material not disclosed through pre-trial service of documents by the

prosecution was put to him. This was regarded by the Court of Criminal Appeal as irrelevant and prejudicial. It is inherent in the

section that the rights of the accused be respected by proper disclosure to the accused in advance of the trial. In this, a trial for

membership of an unlawful organisation is no different to any other criminal trial. At p. 42, Gannon J commented:

The provisions of Part II of the Criminal Procedure Act, 1967, requiring that an accused person be informed of the nature

and substance of the evidence intended to be offered in support of the charge preferred against him, form part of the

essential requirements of a fair trial. From the transcript and the submissions on behalf of the Director of Public

Prosecutions in this Court it seems that at the time the statements of evidence were furnished to the applicant for his

trial, facts concerning his conduct of the nature indicated in section 3(1) of the 1972 Act were known to the Garda

Síochána and had been known for sufficient time to have had it determined whether evidence thereof could be offered in

support of the charge. From the submissions made it seems that such evidence as was available would not fulfil the

requirements of sub-section (1) of section 3 of the 1972 Act, and that no reference was made in the statement of

evidence furnished to the applicant to such facts on the grounds that to do so would be prejudicial to the defence of the

accused upon his intended trial. Having been then excluded upon such grounds, matters of that nature should not have

been put to the applicant for the first time in the course of his cross-examination. It appears from the transcript that the

Special Criminal Court disapproved of the introduction of these matters in this manner. But it appears to this Court that

the prejudicial effect was such that the Special Criminal Court found in these matters a basis for a disbelieving the denial

by the accused of membership of the illegal organisation alleged.

31. It is also claimed on behalf of Thomas Redmond that where supporting evidence indicating membership of the self-styled IRA is

coupled with the belief evidence of a Chief Superintendent, the accused must thereby be advised by counsel for the defence not to

give evidence. This, however, ignores the fact that the right of an accused to give evidence is inherent in the criminal trial process.

That right was first conferred in England in 1898 in the Criminal Evidence Act of that year but was not passed in respect of Ireland

until independence in 1924 with the Criminal Evidence Act of the same year. In considering whether to give evidence or not, an

accused is in no different a position on being prosecuted for membership of an illegal organisation than being prosecuted for any other

crime. Advice or not, the final decision as to giving evidence or merely testing the prosecution case is one for the accused. That

choice will depend upon a myriad of factors, perhaps the most important of which is the degree to which the accused can confront or

deny the prosecution case. It is clear from the decision of the Special Criminal Court that the ordinary rule applicable to every criminal

trial that no inference is to be drawn from the failure of an accused to give evidence was applied when Thomas Redmond chose not

to enter the witness box. That choice was his. The fact that the prosecution had produced supporting evidence to the belief of the

Chief Superintendent is simply a circumstance of the trial and not in any way attributable to any constitutional infirmity in the

impugned section.

32. It has also been suggested on behalf of Thomas Redmond that there is a presumption that any Chief Superintendent giving

evidence is, firstly, truthful and, secondly, reliable. That is incorrect. While Fennelly J in the Kelly case suggests that p. 135 that a

court of trial was entitled to assume that an officer of the rank of Chief Superintendent would give evidence of his belief that an

accused person was a member of an unlawful organisation only when he had satisfied himself of this fact beyond reasonable doubt,

this is no more than saying that the Special Criminal Court is entitled to enquire into such a factor and that the accused is entitled to

cross-examine in that regard. Insofar as it has been suggested on behalf of Thomas Redmond that thereby some kind of onus is put

upon an accused person when charged with membership of an unlawful organisation, this is completely misplaced.

33. This Court in the Kelly decision made it clear that there is no special status to such evidence. Furthermore, there is not the

slightest indication in the Act of 1939 or otherwise in the Act of 1972 that any presumption, evidential or substantive, has been

created. In terms of other legislation, it is clear that in appropriate circumstances presumptions which reverse the ordinary burden of

proof may be created through clear words or may already exist at common law. Examples of the latter are the presumption that a

person committing a crime is not insane and that an offender intends the natural and probable consequences of their action. Such

presumptions can be rebutted and as regards the latter presumption, the burden is on the prosecution to show that it has not been

rebutted. There is no such thing as an irreversible presumption against an accused in criminal law; DPP v Ennis [2011] IESC 46. There

is no such presumption here. Geoghegan J in Kelly made this plain when, at p. 122 of the report, he stated:

I agree with the view taken by the Court of Criminal Appeal in this case that the balancing of the conflicting rights and

interests can only be determined by the court of trial. The Chief Superintendent’s belief has no special status but is

merely a piece of admissible evidence. As the Court of Criminal Appeal pointed out, although the Special Criminal Court

was entitled to take into account the fact that the Chief Superintendent refused to identify the basis of his belief, it was

also entitled to take into account the fact that the accused made a false statement to the gardaí and the other

corroborating evidence of other witnesses … which was accepted.

34. Indeed, it has been commented by this Court in The People (DPP) v Connolly [2015] IESC 40, at para. 37, and by the European

Court of Human Rights in the case of Donohoe v Ireland that courts of trial are alert to the need for caution. That is their function.

Individual circumstances will vary but, for example, in that case before the European Court of Human Rights at para 88 of the decision

it was commented:

… [T]he trial court was alert to the need to approach the Chief Superintendent’s evidence with caution having regard to

his claim of privilege and was aware of the necessity to counterbalance the restriction imposed on the defence as a result

of its decision upholding that claim. It proceeded to adopt a number of measures having regard to the rights of the

defence.

Firstly, the court reviewed the documentary material upon which [the Chief Superintendent’s] sources were based in order

to assess the adequacy and reliability of his belief. While the Court does not regard such a review, in itself, to be

sufficient to safeguard the rights of the defence … It nevertheless considers that the exercise of judicial control over the

question of disclosure in this case provided an important safeguard in that it enabled the trial judges to monitor

throughout the trial the fairness or otherwise of upholding the claim of privilege in respect of the non-disclosed material …

.

Secondly, the trial court in considering the claim of privilege was alerted to the importance of the ‘innocent at stake’

exception to any grant of privilege. It confirmed, expressly, that there was nothing in what it had reviewed that could or

might assist the applicant in his defence and that, if there had been, then its response would have been different. …

Thirdly, in coming to its judgement the court stated, specifically, that it had expressly excluded from its consideration any

information it had reviewed when it was weighing the Chief Superintendent evidence in the light of the proceedings as a

whole. It further confirmed that it would not convicted the applicant on the basis of [that evidence] alone but that it

required his evidence to be corroborated and supported by other evidence.

This passage acknowledges the safeguards that are inherent in Article 38.1 of the Constitution and which experience indicates are

considered by the Special Criminal Court with especial caution in the application of the impugned section of the 1972 Act.

35. In prosecutions for membership of an unlawful organisation, as in every other case, the overall fairness of the trial is within the

command of the judges of the court of trial. Unfair trials are not acceptable under the Constitution. Every trial is subject to an appeal

system and, in that regard, the comments of O’Donnell J in the Donnelly case at para. 20 are apposite:

This Court accepts that the statutory provisions in issue are significant alterations to the common law and together with

the privilege which normally attaches to the identity of informers and indeed to methods of information gathering, make

more difficult the task of defending persons accused with the offence of membership of an unlawful organisation in

particular. However, a fair trial whether pursuant to Article 38 of the Constitution or Article 6 of the Convention is not

necessarily to be understood as a trial in which a defence is facilitated. The question at all times is whether a trial under

such conditions is fair. Nevertheless the Court accepts that the provisions of s.3 of the Act of 1972 and s.2 of the Act of

1998 require careful scrutiny. Even where it is accepted that the statutory provisions whether individually or cumulatively

do not offend at the level of principle, there remains in any given case an issue as to the fairness of the individual trial.

36. In terms of the fairness of belief evidence, it was correctly noted by the Court of Criminal Appeal in the Donnelly case that such

testimony was being applied not to a single individual act in the past, such as murder or sexual violence, but only to the kind of

continuing state of affairs where such a belief can rationally and securely build up over time. As O’Donnell J stated at para. 26:

[I]t is noteworthy that the evidence pursuant to s.3(2) can only be given in relation to one category of offence, that is

membership of an unlawful organisation. For the reasons set out in Kelly and Redmond, those organisations determined to

be unlawful organisations pursuant to the Act of 1939 are cell based, secretive, and violent organisations which invest

considerable resources in the enforcement of secrecy about the membership of such organisations, and do so by torture,

death, and by the inevitable fear that those methods engender. Membership is normally a continuing state of affairs,

rather than a single activity, and is accordingly more susceptible to belief evidence of a senior garda officer, based on a

variety of sources over a period of time, than if such evidence was admissible in respect of a single criminal activity.

Whatever the justification, it is certainly the case that such belief evidence is only admissible in respect of membership of

an unlawful organisation.

Gathering such evidence is, as the European Court of Human Rights, observed in Donohoe v Ireland at para. 90 “a complex intelligence

gathering and analytical exercise.” It continues over time and the analysis to which it must be subjected is likely to challenge error.

Special advocates

37. The concession on behalf of Thomas Redmond that some form of limited role for a special lawyer in examining documents on behalf

of the accused would not cure the argued-for unconstitutionality of the impugned section, means that only a brief comment is

required on this issue. In some jurisdictions where restrictions are placed on persons in the context of immigration or national security,

a special advocate may be appointed in order to secretly examine the papers which point to the concerns of the authorities and to

make representations on behalf of the restricted person. An example is Zaoui v Attorney General (No 2) [2005] NZSC 38. A case in

Canada where a specially authorised lawyer subject to a rigorous background check was similarly engaged was Charkaoui v Canada

(Citizenship and Immigration) [2007] 1 SCR 350.Akin to this, in relation to what appears to be combatant detention, or more properly

the suspicion of enemy status, certain elaborate procedures have been engaged in the United States of America; see Hamdi v

Rumsfeld 542 US 507 (2004). In our neighbouring jurisdiction other procedures have been applied; Secretary of State for the Home

Department v MB [2008] 1 AC 440. Cases on control orders in that jurisdiction include Secretary of State for the Home Department v

MB [2008] AC 440 and Secretary of State for the Home Department v AF [2009] UKHL 28. In the latter, the three appellants were

subject to control orders involving significant restriction of liberty under s. 2 of the Prevention of Terrorism Act 2005 on the ground

that the Secretary of State had reasonable grounds for suspecting that the appellant involved in terrorism-related activity. The

decision of the European Court of Human Rights on 19th February, 2009 in A and others v United Kingdom (Application No 3455/05)

was also canvassed extensively. All such cases were not in the context of a criminal conviction but, rather, the placing of

administrative restraints on liberty, subject to judicial overview. The origin of any such cases in the Commonwealth is neither here nor

there.

38. In the High Court in Director of Public Prosecutions v Special Criminal Court [1999] 2 IR 60, Carney J made it clear that it is

fundamental to the relationship of accused and defence counsel in the context of representation in a criminal case that open

communication be untouched. In that case, the Special Criminal Court had made an order that documents withheld by the prosecution

should be disclosed to the legal representatives of the accused Paul Ward but not to Paul Ward himself. This, Carney J held, at p. 75,

undermined Article 38.1 of the Constitution because, as he said, “it does not seem to me that there would be a trial in accordance

with constitutional justice if any … legal representatives did not enjoy the full lawyer-client relationship with their client, but were

under an obligation to keep secrets from him.” On appeal to this Court, that point was accepted, O’Flaherty J pointing out that such

disclosure would destroy informer privilege and would remove from an accused the right to conduct his own defence; see p. 84.

39. It has not been argued that this decision was wrong and should be departed from in accordance with the established test laid

down by this Court as a matter of general principle, in non-constitutional matters, that a prior decision of the Supreme Court should

be followed by that Court unless it is demonstrably wrong and it is in the interests of justice to depart from the previously held

position; Mogul v Tipperary (North Riding) County Council [1976] IR 260, and as to constitutional issues see Jordan v Minister for

Children and Youth Affairs & ors [2015] IESC 33, O’Donnell J at para. 63.

Real issue

40. All of this argument on behalf of Thomas Redmond has been very much beside the point and speculative. A plain reading of the

impugned subsection of the Act of 1972 makes it clear that belief evidence is admissible within the safeguards so carefully

constructed by the legislature around the operation of the provision. Article 38 in guaranteeing that a trial on a criminal charge be in

“due course of law” addresses both substantive and procedural minimum standards and in doing so enforces the fundamental rule that

where reasonable people within the community with a complete knowledge of the facts might reasonably doubt that an accused had

committed a crime, that accused should be acquitted. Further, it has been acknowledged in several decisions that where a

prosecution consists of the bare evidence by a Chief Superintendent that an accused is a member of an unlawful organisation and

where the accused counters this by giving contradictory evidence, the possibility a conviction in those circumstances would be very

much undermined. In addition, 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. Prosecutions are dependent upon the evidence of a Chief Superintendent in order to

make the charge of membership of a prescribed organisation viable for prosecution. This charge is vital to the maintenance of the

democratic polity of this country. But, 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 within the

Special Criminal Court in approaching such belief evidence and the rightful reluctance of that 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 safeguard 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, as Hardiman J

states in his judgment.

41. While the categories of evidence calling for a warning to be given to a jury, or to be self -administered in the case of the District

Court or the Special Criminal Court, that it is dangerous to convict on particular classes of evidence without corroboration are not

closed, misstatement of case law in argument on that complex context is a real danger. With the necessary backdrop of Article 38 of

the Constitution, the Oireachtas in enacting subsection 3(2) of the Act of 1972 was merely adding to the categories of evidence

which might support a particular charge in a particular context. In so doing, they were not undermining the Constitutional guarantee

of substantive fairness in the ultimate result of a criminal trial. Consequently, where the belief evidence of a Chief Superintendent

that the accused is a member of an unlawful organisation is supported by some other evidence relevant to the charge, the

constitutional guarantee is supported. As to the particular weight to be attached to that belief evidence and the other evidence in

the trial, that is a matter for the court of trial. Such evidence is to be assessed in the context of all of the evidence in the case,

whether including testimony from the accused or not. In some cases, evidence other than the belief evidence will be weighed by the

Special Criminal Court as very important, while in other trials that belief evidence assumes prominence. For the avoidance of doubt,

there is no order in which each such piece of evidence is to be assessed. It is in the overall context of the state of admissible

evidence at the end of the trial that the Special Criminal Court may convict or may fail to be convinced by an entire body of

testimony. The judgment at trial in this case, indeed, while exemplary in its approach in terms of the summary cannot be regarded in

any way as setting down any particular methodology. The assessment of and weight to be attached to evidence is a matter for the

judges at trial. There is no legal formula in that regard.

Comment

42. At the end of his judgment in the High Court, McMahon J notes that issues as to declarations as to the rights of the accused

before the Special Criminal Court on a charge of membership of an unlawful organisation were not decided by him because of his

rejection of the first issue raised on behalf of Thomas Redmond. There was some unfortunate confusion in arguing this case for

Thomas Redmond as to what might yet be in the case, notwithstanding the manner in which it was argued on this appeal.

43. Cases can occur where points are so completely insubstantial as to not require individual ruling in the High Court in the context of

issues that have been seriously argued. It is also correct that issues of damages may be left over where liability is decided against a

litigant. Where, however, two or more issues of substance are raised and the first is decided against an applicant or plaintiff, it might

be borne in mind that it assists the appeal process for the judge that determines to dismiss the case, to also give a view as to any

other substantial points that were argued in the High Court and which might later be sought to be argued on appeal. Naturally, given

the dismissal of a central point of substance, any subsequent ruling on points that were argued in addition may be concise.

Conclusion

44. There is no presumption of special merit attaching to the evidence of a Chief Superintendent in giving evidence of his or her belief

on a trial of membership of an unlawful organisation contrary to s.21 of the Offences Against the State Act 1939 that an accused is

such a member. There is nothing in the text of s. 3(2) of the Offences Against the State (Amendment) Act 1972 which establishes

any element of favouritism towards such evidence or which in any way reverses the ordinary standard and burden of proof. Nor does

any decision of this Court or any other court. Such belief evidence is merely admissible evidence. As such, it may be rejected,

contradicted or challenged in the ordinary way. Article 38.1 of the Constitution establishes “due course of law” as a standard of

fairness which guarantees that criminal trials are conducted as a rigorous examination of the prosecution proofs and that guilt is not

pronounced unless the proof of the accused’s guilt is established beyond reasonable doubt within the context of fair procedures. The

impugned provision does not offend against that constitutional guarantee where such belief evidence is part of a body of evidence.

That is what happened in this case. No guarantee within Article 38 is offended where such belief evidence is supported by some other

piece of evidence or circumstance which supports the charge. The impugned subsection applies only: before the Special Criminal

Court; where a written ruling is given explaining the reasons for relying on such evidence; on an offence of membership of an unlawful

organisation; where the Government has made a proclamation that the ordinary courts are inadequate to secure the effective

administration of justice; where the accused may in the ordinary way give evidence; where privilege may be claimed as to sources

which are confidential, as in any other case, but which privilege is subject to review by the court of trial; where the nature of the

offence charged is continuing, allowing a belief to build up over time; where that belief may be challenged; and may be the subject of

rebutting evidence by the accused.

45. The Oireachtas has chosen to alter the rules of evidence only in respect of a particular offence within a particular legal context

and in which both common sense and experience demonstrate would make practical proof otherwise impossible in practical terms. It is

only within that context that the section should be analysed as meeting the standard of fairness in criminal trials which is guaranteed

by Article 38.1 of the Constitution.

46. The claim on behalf of Thomas Redmond that s.3(2) of the Offences Against the State (Amendment) Act 1972 is unconstitutional

is therefore dismissed.