PROCEDURE

The case originated in an application (no. 19165/08) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr Kenneth Donohoe (“the applicant”), on 8 April 2008.

The applicant was represented by Ms C. Almond, a lawyer practising in Dublin. The Irish Government (“the Government”) were represented by their Agent, Mr P. White, of the Department of Foreign Affairs.

The applicant complained under Article 6 of the Convention that his trial was unfair because of the non-disclosure of the sources of the evidence of a Chief Superintendent without adequate counterbalancing measures.

On 4 January 2012 the application was communicated to the Government.

Written submissions were received from the Irish Human Rights Commission, which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court, as in force at the material time).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1978 and has a permanent address in Dublin.

A. Background facts

The criminal proceedings against the applicant to which this application relates arose, inter alia, from his association with the following events.

On 10 October 2002, an off-duty Garda (police) detective attached to the Special Detective Unit - who lived in a housing estate near Dublin called Corke Abbey - noticed suspicious activity and contacted a local Garda station. From shortly after 11 pm, he watched the movements of three cars (a blue Nissan Almera, a dark Nissan Micra and a yellow Transit van) and he noticed the occupants of the three cars acting in what appeared to be a coordinated manner. At one stage, five men got out of the Nissan Micra and three of them got into the back of the yellow Transit van, where there was already a driver and a man in the passenger seat. The other two got back into the Nissan Micra and it was driven off. A taxi arrived and its sole passenger got out and joined the other group. These six men were gathered together at the side of the Transit van. An unmarked Garda vehicle manned by two Gardaí arrived in response to the off-duty detective’s call and approached the van. One of the men walked away from the group while four of them got into the back of the van and one into the driver’s seat.

The Nissan Almera remained on the estate parked near the Transit van. One Garda spoke to the driver of the Transit van who gave a false name (referred to below as PB). While speaking with him, the Gardaí noted a black balaclava and the handset of a portable radio on the floor of the van. The other Garda opened the back door of the van and saw the other four men, sitting on the floor, as well as a number of items (which the trial court later regarded as “ significant pieces of evidence” see § 11 below): a lump/sledge hammer; two pickaxe handles; a torch; eight plastic bags of cable ties; black balaclavas with single or double openings; two identical navy ties resembling those worn by members of An Garda Síochána; woollen gloves; rolls of masking tape; a sky blue shirt marked ‘security’; a yellow fluorescent jacket with the word “GARDA” labelled on it; black woollen gloves and plastic industrial gloves; a number of remote controlled radios and election posters in respect of a man named O’Snodaigh. Two of the men in the back of the van were dressed in clothing that gave the appearance of, and made them look like members of An Garda Síochána including, yellow fluorescent jackets on which was printed or marked “GARDA”.

When the Nissan Almera was later examined by the police they found it contained false registration plates which corresponded to its tax and insurance discs, these, in fact, being those of an identical car that had previously been stolen; the genuine registration plates for the Nisssan Almera; a ‘Long Kesh’ baseball cap; a quantity of ties and a plastic bag which contained a stun gun and a canister of CS gas; a blue flashing light and beacon which would give the appearance of belonging to an official police car; and a roll of black binding tape. The owner of the car was later identified as being MB.

The five men of the original eight who remained in the estate, and who were in the Ford Transit van, were arrested and charged with being members of an illegal organisation. During police investigations, the Nissan Micra car which had left Corke Abbey after dropping off three of the five men who had been in it, was later traced back to a Ms K., the partner of the applicant (see paragraph 22 below). On 24 October 2002 a lawful search of the applicant’s home took place. Papers were found which contained the phone number of the owner of the Nissan Almera (MB) and the phone number of the man in the driver’s seat of the Transit van (PB). The trial court later found established that, at the very least, the applicant was acquainted with one of the men arrested on 10 October 2002 and with the owner of the Nissan Almera car (see paragraph 22 below).

On 24 October 2002 the applicant was arrested under section 30 of the Offences against the State Act 1939, as amended (“the 1939 Act”). He was brought to the police station where he was questioned about membership, contrary to section 21 of the 1939 Act, of an unlawful organisation (the Irish Republican Army, “IRA”). The applicant did not make a statement and was released from custody.

On 30 October 2002 he was arrested on suspicion that, on 10 October 2002, he was a member of the IRA contrary to section 21 of the 1939 Act. He and a co-accused (NB) were interviewed at length by police officers. Numerous questions were put to them concerning the events in Corke Abbey and the evidence gathered by the police. Section 2 of the Offences Against the State (Amendment) Act 1998 (“the 1998 Act”) was invoked by the interviewing officers and each accused was informed of the consequences of a failure to answer the questions. Neither answered any question. The trial court later noted that the two accused accepted that they had had full access to legal advice and found that each had availed himself of the opportunity to consult a solicitor before and during several police interviews. Those interviews were also recorded on video.

The applicant was brought before the Special Criminal Court (“SCC”) and charged with membership on 10 October 2002 of an unlawful organisation, the IRA, contrary to section 21 of the 1939 Act.

B. The SCC

In October 2004 the applicant and NB were tried before the SCC. The trial lasted 8 days. 54 prosecution witnesses were heard. The accused did not give any evidence at trial nor was any other evidence tendered on his behalf.

On 18 November 2004 the SCC delivered its judgment convicting the applicant and his co-accused. In so doing, it identified four strands of evidence tendered by the prosecution: (i) the sworn testimony of Chief Superintendent PK that it was his belief that, independently of any matter discovered at the time of the Corke Abbey events or any matters following those events, the applicant was a member of the IRA; (ii) evidence that associated each of the accused with the activities at Corke Abbey which the prosecution contended were of a type usually associated with the IRA and which it claimed supported or corroborated PK’s evidence; (iii) evidence that, following a search of their homes, documentation was found which was said to be of a type one might expect to find in the possession of an active member of an organisation like the IRA; and (iv) inferences, it argued, that could properly be drawn, pursuant to statute, arising from the failure of the applicant to answer questions material to the investigation of the offence in question.

The trial court considered the first strand, which comprised the evidence of a Chief Superintendent who testified that he believed that, on 10 October 2002, the applicant was a member of the IRA. He stated that his belief was based on confidential information available to him, of an oral and written nature, from police and civilian sources. This information was independent of any matters discovered when five persons were arrested for unlawful activity at Corke Abbey and also independent of any matters discovered following those events. When asked to identify his sources, he claimed privilege stating that disclosure would endanger lives and State security.

The applicant made an application for an inquiry into PK’s sources arguing that his trial would be unfair if he did not know these sources and the evidence against him (Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000-II). The prosecution, which had no access to the confidential source material, opposed the applicant’s request on the basis of the principle of informer privilege. Reviewing this Court’s case-law (inter alia, Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, ECHR 2004-X), the SCC found that, while it was unthinkable that information that would threaten lives or State security would be disclosed, the admission of PK’s evidence without any inquiry into its basis would unfairly balance the trial in favour of the prosecution. The accused, it held, was entitled to some enquiry into the basis of PK’s belief in order to reconcile an order for privilege with defence rights. The SCC, therefore, directed the Chief Superintendent to produce all relevant documentation which, he asserted, informed him that the accused were members of the IRA. In compliance with the direction, files relating to both the applicant and his co-accused and covering a lengthy period prior to 10 October 2002 were produced to the trial court, but not disclosed to the prosecution or to the defence. The Court conducted a review of those files considering this to be the most appropriate solution in the interests of justice. Its competence to do so had been considered and confirmed previously by the Supreme Court and, as such, it was authorised by domestic law (DPP v Ward [1999] 1 I.R. 60).

Following the review of PK’s files, the SCC was satisfied that PK had “adequate and reliable information” on which he could legitimately form the opinion that each accused was a member of the IRA. It found that there was nothing in the files that would assist the defence in proving the innocence of their clients. Later, in weighing PK’s evidence, the SCC confirmed that it had excluded any information to which it had become privy during its review of the files he had produced to the court. The SCC also noted that the demeanour of PK was such that the court was persuaded that he was an “honest and reliable” witness. He had 25 years’ service as a police officer most of which was devoted to combating subversion and, as the head of the Special Detective Unit (concerned with the State security and monitoring subversive organisations), PK was the person best placed to learn of the activities of the accused. It was difficult to imagine anyone better informed on the subject in the country. The SCC was persuaded beyond any doubt by the belief evidence of PK that the accused were members of the IRA as charged. Moreover, the trial court was satisfied that PK had formed that belief ever before the ‘Corke Abbey’ events of 10 October 2002 or any matters discovered following the arrest of five persons on that occasion. The SCC totally rejected a suggestion put to the Chief Superintendent PK, in cross-examination that his evidence was a fiction.

However, the trial court held that the demands of justice required that it should not convict solely on the basis of PK’s evidence so the SCC went on to examine whether there was evidence which supported and corroborated the belief of PK.

The second strand of the prosecution case to which the trial court had regard was evidence which, it was satisfied, established that each of the accused was associated with the other and with the activities at Corke Abbey, activities which, according to the prosecution, were of a type associated with the IRA. Police officers gave detailed evidence about the events and the suspicious activities in Corke Abbey on the night of 10 October 2002 and about the items that had been found following a search of the vehicles involved (see paragraphs 7, 8 and 9 above).

Packaging from a Rayovac torch and a receipt dated 10 October 2002 were later found in the Nissan Micra when it was searched. The SCC was satisfied beyond any doubt that this packaging and receipt matched the torch found in the Transit van. It was further satisfied that the dark green Nissan Micra observed by the police at Corke Abbey was the property of Ms K, the partner of the applicant, and that he, the applicant, had had control of the motor vehicle on the evening in question. His partner had testified that she had given the keys of her Nissan Micra to the applicant around 8pm on 10 October 2002; that neither he nor the car was back when she returned home later that night; and that when she awoke the next morning both he and the car were back at the house they shared. The trial court had no doubt that the applicant was either one of the male drivers of the Nissan Micra at Corke Abbey or that he was aware of and acquiesced in the use to which it was being put. It was also satisfied, having heard abundant evidence which included sightings of the applicant and his co-accused together in the middle of the night when the applicant’s home was being searched, that they were ‘well known’ to each other.

The SCC considered that the above evidence showed that both accused were aware of, or acquiesced in, unlawful activities in Corke Abbey. However, it was of the view that those activities could equally be ascribed to persons engaged in organised crime as opposed to those engaged in subversive crime.

The third strand of the prosecution case concerned documentation found upon a search of the applicant’s home on 24 October 2002. On the one hand, there was a piece of paper containing the drawing of a key and a telephone number which the court accepted was that of MB, the owner of the Nissan Almera with the false number plates. They also found a piece of paper with the telephone number of PB whom the Court had no doubt was the person found to be driving the Ford Transit van on the night of the 10 October 2002. During an earlier search of the co-accused’s home, police had found documents which contained notes of the actions and movements of a number of elected politicians from different political parties plus documents recording the names and addresses of persons involved in serious crime and documents noting the names of persons linked to the Irish National Liberation Army (“INLA”), another unlawful organisation (paragraph 39 below). A thumb print on black tape found in the Almera was accepted as being that of the co-accused. The trial court accepted that the documentation established that the applicant was, at the very least, acquainted with the driver of the Transit van (PB) and the owner of the Nissan Almera (MB). However, it was not, of itself, supportive of Chief Superintendent PK’s evidence that the applicant was a member of the IRA.

The fourth strand of the prosecution case against the applicant and his co-accused was that, in the course of a number of interviews by police officers following their arrest during which the provisions of s.2 of the Offences Against the State (Amendment) Act, 1998 were invoked and explained to them, each man failed to answer a variety of questions which, the court maintained, were very material to the investigation of the offences with which each was charged. It was accepted by the defence that each accused was afforded all the rights and privileges to which they were legally entitled during their detention and, in particular, that each of them had full access to legal advice. The court noted that each availed of the opportunity to consult a solicitor before and in the course of several police interviews. The video-recordings of the interviews were shown to the trial court. It noted that, not only did each remain totally silent during the course of interview, but each appeared to take no ostensible interest whatsoever in what was going on. They sat bolt upright showing remarkable self-control throughout, in that their only movement was an occasional blink of the eyes but they made no effort to engage with the interviewers. It was clear to the court that each was deliberately and offensively ignoring all that was being asked of them. The court was satisfied that not only were the relevant statutory provisions invoked and adequately explained to each accused but each was given an opportunity to protest in the event that he had not understood that explanation, an opportunity which was ignored. Each question material to the charge was met with a stony silence. For example, each accused was asked to affirm or deny that he was a member of the IRA. Each was asked whether he knew the men arrested at Corke Abbey on the night of 10 October 2002, it being clear that each knew one or more of them. Each was asked to explain why they kept the documentation found when their houses were searched and each was asked whether they had any involvement with the aforesaid events. The applicant, in particular, was specifically asked about his use of his partner’s car on the night of 10 October 2002 and to explain how it had been seen at Corke Abbey on that night, it being the evidence of his partner that he had been in possession of the car.

The trial court had no doubt as to the materiality of a vast number of the questions put to each accused and it was clear that each had made no effort whatsoever to answer them. In those circumstances, the court had ‘no doubt’ that, as provided for by section 2 of the 1998 Act, it was entitled to and did, in fact, draw the inference from the failure of each accused to answer those questions that each had a guilty conscience insofar as the allegation of membership of an unlawful organisation was concerned. The court was satisfied that their silence amounted to corroboration of the belief evidence given by Chief Superintendent PK. As the court did not doubt the evidence of PK that he believed each was a member of the IRA and as the court was satisfied that the failure of each to answer material questions during police interviews was corroborative of that evidence, it was persuaded beyond all reasonable doubt that each of the accused was guilty of charged.

For the sake of completeness, the trial court added, that while it had indicated in delivering its judgment that it was not convinced that, standing alone, either the activities at Corke Abbey with which each of the accused was associated or the documentation found upon a search of their homes necessarily indicated activities or membership of an unlawful organisation, it was the opinion of the court that “when viewed in conjunction with the belief evidence of Chief Superintendent PK and the fact that each accused failed to answer questions while being interviewed by members of the Garda Siochana, those two pieces of evidence, i.e. the activities which took place at Corke Abbey ... and the documentation which was found on the premises of each accused is supportive to the allegation that each of them is a member of the IRA”.

The applicant was sentenced to four years’ imprisonment.

C. Appeal to the Court of Criminal Appeal (“CCA”)

The applicant sought leave to appeal against his conviction to the CCA claiming that the trial court had erred in law. In particular, he objected to any review by the trial judges, as adjudicators of guilt or innocence, of material underlying the belief of Chief Superintendent PK on the grounds that to do so was unlawful and contrary to the case-law of this Court.

On 28 November 2006 the CCA, having conducted an extensive review of the domestic jurisprudence and the case-law of this Court, gave judgment refusing leave to appeal. It was satisfied that a restriction on the ability to cross-examine the Chief Superintendent, arising from his claim of privilege in respect of the underlying sources of information upon which his belief was based because of a threat to life or to the on-going security of the State, did not ipso facto constitute a breach of Article 38 of the Constitution or of Article 6 of the Convention. The Supreme Court in DPP v. Kelly ([2006] IESC 20) had found this limitation necessary and properly counterbalanced by matters not dissimilar to those arising in the present case. The belief of Chief Superintendent PK was simply admitted as being evidence, no more and no less, and this was already well established in the prior jurisprudence. Such a witness could be cross-examined but he was entitled to claim privilege in respect of underlying facts or sources which led to his belief that disclosure of same could cause a credible threat to life or to state security. By ruling that it would not convict without evidence that supported or corroborated that belief, the trial court had clearly recognised the disadvantage to the defence which flowed from the claim of privilege and it had correctly sought evidence corroborative of PK’s belief. The exercise of the trial court’s discretion to review the files furnished by the Chief Superintendent PK did not infringe the right to a fair trial. It found no evidence that would have assisted the accused and the material examined constituted a good basis for the belief of the Chief Superintendent. The trial court had confirmed that, if it had found otherwise, this would have led to a different outcome.

The CCA rejected the submission that the SCC, which decided on guilt or innocence, should not have carried out this review having regard to this Court’s case-law. It was not at all clear from the Convention case-law that any of the judgments relied upon by counsel in this case dealt with the issue of a claim to privilege based on a threat to life or to the on-going security of the State. In the applicant’s case, the CCA held that there was no reason to conclude that anything found in the material examined by the trial court was influential on that court in making its judgment, let alone inspiring anything determinative of the guilt of either accused. A statement to the contrary was explicitly made by the trial court and was to be found in the judgment itself. Nor could any of this material, had it been disclosed to the defence, have been considered to be in any way of assistance in establishing the innocence of the accused. A statement that no such exculpatory material existed was also found in the trial court’s judgment.

The CCA also considered that the events at Corke Abbey and an association with those events, the vehicles and the contents of the vehicles, the materials found during searches as well as the meetings between both accused at the time when the applicant’s house was being searched, were all matters which came within the ambit of the phrase ‘movements, actions, activities, or associations on the part of an accused person’ found in section 3(1)(b)(i) of the Offences Against the State (Amendment) Act, 1972, as amended (“the 1972 Act”). The facts upon which the trial court relied were all proven beyond reasonable doubt and, indeed, the trial court had noted that there had been no serious challenge to the prosecution evidence of the facts, connections and associations so found. The trial court was fully entitled to have found that the applicant was associated with the events at Corke Abbey and its conclusion, in the circumstances, was a safe and valid one. Insofar as the appellants had complained about the trial court’s comment on the demeanour of each accused during police interviews, the CCA considered that their objection, against a background of a total failure to answer any question at all, was rather surreal. The evidence established a complete and utter failure to answer any question at all and the trial court made a finding on that failure. That court’s entitlement to draw inferences arose, precisely, from that failure. In the circumstances, the inferences were correctly and validly drawn. The commentary as to demeanour did not alter that in any way nor did it suggest that the right to silence did not apply.

The CCA confirmed the trial court’s conclusion that, while the association with events at Corke Abbey or the documents found on searches, for example, might not, in isolation, be indicative of membership of an illegal organisation, these matters, accepted as having been proven, when taken together with the inferences validly drawn, were supportive of the opinion of Chief Superintendent PK. When considered with his evidence, all the matters taken together were sufficient to establish beyond reasonable doubt that both appellants were members of the IRA on the date in question. The trial court was entitled to look at the established facts, when taken together, and also when taken in conjunction with the inferences which it had properly drawn to see whether these supported or corroborated the belief evidence of the Chief Superintendent. The trial court’s finding that the foregoing facts and inferences, when taken together with the belief evidence of the Chief Superintendent, established beyond reasonable doubt the charges against the accused was a correct finding and conclusion.

D. Section 29 of the Courts of Justice Act 1924 (“the 1924 Act”)

The applicant then brought an application to the CCA under section 29 of the 1924 Act, pursuant to which he requested the court to certify that its previous decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The question proposed by the applicant for the Supreme Court’s consideration was whether the receipt and examination of material concerning the applicant to which neither he nor his advisors had access was consistent with the State’s obligation to provide a fair trial pursuant to Article 6 of the Convention and Article 38 of the Constitution. On 26 October 2007 the CCA delivered its (second) judgment and refused the application for a section 29 certificate.

The CCA reviewed the case law of this Court upon which the applicant had relied. It summarised this Court’s findings in the above-cited case of Rowe and Davis v. the United Kingdom (in which it had found a violation of Article 6) to the effect that: (a) the entitlement to disclosure is not an absolute right and that, in any criminal proceedings, there may be competing interests, such as national security or the need to protect witnesses at risk of reprisal, which must be weighed against the rights of the accused; (b) in cases where evidence is withheld from the defence in the above circumstances it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary. Instead this Court’s role is to ascertain whether the decision-making procedure or process which was applied did comply, as far as possible, with the requirements of adversarial proceedings; (c) in the Rowe cases there was a failure by the prosecution to lay the evidence in question before the trial judge to permit him to rule on the question of disclosure and this deprived the applicant of a fair trial; and (d) the particular facts in that case differentiated it from the case of Edwards v. the United Kingdom (16 December 1992, Series A no. 247 B). Referring to Jasper v. the United Kingdom ([GC], no. 27052/95, 16 February 2000), in which these principles were repeated, the CCA noted that this Court had recognised that the trial judge held a supervisory role in determining the balance between the competing rights of the defence and of public interest immunity. It found that the fact that the need for disclosure was at all times under assessment by the trial judge provided a further important safeguard.

The CCA concluded that the approach taken by the trial court in the applicant’s case was clearly within the ambit of the case-law of the Strasbourg Court which required that the withholding of any such documentation had to remain at all times in the supervisory control of judges themselves. The CCA rejected the submission that the trial court’s approach involved a review of material which was determinative of guilt. Rather, the judges were considering whether PK’s evidence should be admitted without cross-examination as to its source in circumstances where privilege, based on the safety of the life of others, had been invoked. In weighing up the value of that belief evidence, the trial judges had had no regard at all to the documentary source material. There was no requirement to disclose documents which did not damage the prosecution or assist the defence and it was clear from the SCC’s review that there were no such documents: if the SCC had found documents of assistance to the applicant, its answer would have been different. Moreover, the undisclosed documents were demonstrably not determinative as the applicant had suggested and the trial court had explicitly stated this to be so in its judgment. Finally, the CCA noted that the applicant had not sought to have the appeal court examine or consider the Chief Superintendent’s documentation in order to ascertain whether the trial judges had misdirected themselves in respect of the documents or the material contained therein.