Director of Public Prosecutions v Special Criminal Court and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 11 December 2023
• Neutral Citation: [2023] IEHC 664
• Court: High Court
• Docket Number: 2021 599 JR

Between

Director of Public Prosecutions

Applicant

and

Special Criminal Court

Michael Connolly

Respondents

[2023] IEHC 664

2021 599 JR

THE HIGH COURT

JUDICIAL REVIEW

Appearances

Brendan Grehan SC and Conor McKenna for the applicant instructed by the Chief Prosecution Solicitor

Hugh Hartnett SC, Philipp Rahn SC and Henry Kelly for the second respondent instructed by Thompson Solicitors

JUDGMENT ofMr. Justice Garrett Simonsdelivered on 11 December 2023

INTRODUCTION

1 The Director of Public Prosecutions seeks to quash a certificate issued by the Special Criminal Court to the effect that there has been a miscarriage of justice. The certificate was issued pursuant to Section 9 of the Criminal Procedure Act 1993. The certificate relates to the earlier conviction of an individual of an offence of membership of an unlawful organisation. This conviction was set aside on appeal and a subsequent retrial resulted in an acquittal.

2 The Director of Public Prosecutions seeks to challenge the issuance of the certificate under two broad headings as follows. First, it is said that the Special Criminal Court erred in purporting to find that there had been a miscarriage of justice in circumstances where that court had, supposedly, made a finding that the acquitted person was “ not factually innocent”. Secondly, it is said that the conduct of the prosecuting authorities, which had been criticised by the Special Criminal Court, had not given rise to a grave defect in the administration of justice such as might properly ground the issuance of a certificate.

3 It should be explained that there is no statutory right of appeal against the decision of the Special Criminal Court to issue a certificate. This matter thus comes before the High Court by way of an application for judicial review, with all of the limitations that that implies, rather than by way of appeal. The High Court is not considering de novo the question of whether or not there has been a miscarriage of justice. Rather, it is considering the legality of the decision of the Special Criminal Court.

PROCEDURAL HISTORY

4 Mr. Michael Connolly, the second respondent, had been convicted by the Special Criminal Court of an offence of membership of an unlawful organisation pursuant to Section 21 of the Offences against the State Act 1939. The date of conviction is 1 June 2017. The conviction was overturned by the Court of Appeal on 26 June 2018: Director of Public Prosecutions v. Connolly[2018] IECA 201. A retrial was directed and took place before a differently constituted division of the Special Criminal Court.

5 During the course of the retrial, a newly discovered fact emerged, namely that an assertion made by a high ranking garda officer while giving belief evidence was “ seriously incomplete and misleading”. The accused was acquitted, and his release directed, for the reasons stated in a judgment delivered on 24 June 2019. The accused had already served some fourteen months of a three year sentence of imprisonment.

6 In a written judgment of 12 April 2021, the Special Criminal Court subsequently certified, pursuant to Section 9 of the Criminal Procedure Act 1993, that there had been a miscarriage of justice. It is this decision which the Director of Public Prosecutions seeks to impugn in these judicial review proceedings.

7 Leave to apply for judicial review was granted by the High Court (Hyland J.) on 2 March 2022 following an inter partes hearing. The substantive application for judicial review subsequently came on for hearing before me. The second respondent has acted as legitimus contradictor to the proceedings. The Special Criminal Court has not participated in the proceedings.

8 The hearing was adjourned twice to allow the parties to file supplemental legal submissions as follows. First, the Director of Public Prosecutions was given leave to file revised legal submissions which more accurately reflected the findings made by the Special Criminal Court. Secondly, both parties were given leave to file submissions which addressed the implications, if any, of the case law of the European Court of Human Rights on the presumption of innocence. The parties were requested to address, in particular, the judgment of the ECtHR in Allen v. United Kingdom (Application No. 25424/09), [2013] ECHR 25424/09.

9 The DPP filed revised submissions on 13 June 2023. Both parties filed submissions addressing the ECtHR case law: these were filed on 20 September 2023 and 16 October 2023, respectively. The hearing resumed on 13 November 2023 and judgment was reserved until today's date.

“DOUBLE COUNTING” AND OFFENCE OF MEMBERSHIP

10 To assist the reader in better understanding the discussion which follows, it is necessary to pause here and to explain what is meant by the concept of “ double counting”. This concept played a pivotal role in the decision of the Special Criminal Court to issue a certificate.

11 The certificate related to a prosecution for an alleged offence of membership of an unlawful organisation. The offence is unique in that opinion evidence as to the guilt of the accused is admissible. More specifically, a statement of belief, by a member of An Garda Síochána not below the rank of Chief Superintendent, that the accused was at a material time a member of an unlawful organisation is admissible as evidence that he was then such a member. See Section 3 of the Offences against the State ( Amendment) Act 1972. Evidence of this type is often referred to by the shorthand “ belief evidence”.

12 The Supreme Court held, in Redmond v. Ireland[2015] IESC 98, [2015] 4 I.R. 84, [2016] 1 I.L.R.M. 301, that a constitutional construction of this provision requires that the belief evidence must be supported by some other evidence which implicates the accused in the offence charged, which is seen by the trial court as credible in itself, and which is independent of the witness who gives the belief evidence.

13 The concept of “ double counting” describes the risk that the evidence which has been put forward as independent evidence, intended to support the belief evidence, might actually have contributed to the formation of that belief. To avoid this risk, it has become the norm for the officer giving belief evidence to state that the belief is not based on anything that arose during the investigation of the offence or from the arrest and detention of the accused. The officer may, to emphasise this point, say that he or she has not read the book of evidence or disclosure material. The objective of this approach is to exclude, as a concern for the court, the possibility of double counting. ( Director of Public Prosecutions v. Cassidy[2021] IESC 60, [2021] 2 I.R. 710).

THE JUDGMENT OF THE SPECIAL CRIMINAL COURT

14 The Special Criminal Court delivered a written judgment on the application for a certificate of miscarriage of justice on 12 April 2021. The judgment explains the practical implications of the rule against “ double counting” as follows (at paragraph 8):

“As previously stated by this Court when delivering its judgment on 24 June 2019, the application of the rule does not mean that a high ranking garda officer is precluded from relying on an intelligence file merely because it makes reference to alleged supporting facts upon which the prosecution propose to rely as independent supporting evidence nor does it mean that such a garda officer is necessarily required in every case to disclose the existence of such references or to disclose the information that is contained in those references, a fortiori, where the information goes beyond matters disclosed in the Book of Evidence. What it does require, however, is that the Special Criminal Court should be astute to ensure that the evidence upon which the prosecution rely in order to show compliance with the rule against double counting is of such a nature as to allow a high degree of confidence that the rule has been properly adhered to and observed. Accordingly, where belief evidence arises solely from the reading of an intelligence file, there is an onus on the prosecution to produce clear and unambiguous evidence to establish that the high ranking garda officer was cognisant at all times of the rule against double counting when forming his or her belief and to further establish that the relevant garda officer was aware at least of the general nature of the alleged supporting facts upon which the prosecution propose to rely and to further establish that he or she consciously discounted those facts when forming his or her belief.”

15 The judgment then explains the circumstances leading up to the acquittal as follows (at paragraph 11):

“[…] the applicant was acquitted of the relevant charge primarily because an inspection of the intelligence file which the high ranking garda officer had considered prior to forming his belief disclosed the existence of material relating to matters which the prosecution had relied on as providing independent supporting evidence for the belief evidence of the garda officer in circumstances which caused this Court to have a reasonable doubt as to whether the garda officer had impermissibly double counted the relevant evidence in arriving at his belief.”

16 It should be explained that the prosecution had sought to rely on evidence in relation to events on a particular date as supposedly independent evidence capable of supporting the belief evidence of the high ranking garda officer. In brief, this supposedly independent evidence related to the movement of two vehicles on the evening of 16 December 2014. The two vehicles had been under surveillance and were ultimately intercepted by members of the emergency response unit. Two improvised explosive devices were found in one of the vehicles. The acquitted person is said to have been the driver of the other vehicle. The Special Criminal Court held, in its acquittal...