DPP v Banks

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 20 December 2019
• Neutral Citation: [2019] IECA 319
• Date: 20 December 2019
• Docket Number: Record No: CA244/2017
• Court: Court of Appeal (Ireland)

[2019] IECA 319

THE COURT OF APPEAL

Birmingham P.

Edwards J.

Baker J.

Record No: CA244/2017

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

VINCENT BANKS

APPELLANT

Conviction – Membership of an unlawful organisation – Unsatisfactory trial – Appellant seeking to appeal against conviction – Whether the conviction was unsatisfactory and unsafe

Facts: The appellant, Mr Banks, on the 31st of July 2017, was convicted by the Special Criminal Court of the offence of Membership of an Unlawful Organisation, to wit an organisation styling itself the Irish Republican Army, otherwise known as Oglaigh na hÉireann, otherwise the IRA, on the 18th of December 2012, contrary to s. 21 of the Offences Against the State Act 1939 as amended by s. 48 of the Criminal Law (Terrorist Offences) Act 2005. He was thereafter sentenced to imprisonment for five years, to date from the 16th of April 2016. The appellant appealed to the Court of Appeal against his conviction. By his Notice of Appeal the appellant contended that his conviction was unsatisfactory and was unsafe on the following grounds: 1) that the trial judges erred in law and in fact in holding that Issue Estoppel did not operate in the circumstances of this particular case; 2) that the trial judges erred in law and in fact in finding that there was no unfairness to the appellant in re-opening the findings made about his alleged membership of an illegal organisation made in the trial for withholding information; 3) that the trial judges erred in law and in fact in holding that s. 34 of the Criminal Procedure Act 1967 as substituted by s. 21 of the Criminal Justice Act 2006 did not apply in the circumstances of this particular case and, in particular, did not have application in respect of an appeal against a determination of the Court made in the trial for withholding information; 4) that the trial judges erred in law and in fact in holding that the arrest of the accused on the 18th December 2012 was lawful and that no arrest warrant was required for that arrest; 5) that the trial judges erred in law and in fact in holding that the offence suspected in September 2012 was not the same offence for which he was arrested in December 2012 and that therefore, the arrest in December 2012 was a lawful arrest; 6) that the trial judges erred in law and in fact in holding in its ruling that the offence of membership in October 2012 with which the accused was charged was not the same offence of membership for which he had been arrested in September 2012; 7) that the trial judges erred in law in admitting the s. 2 interviews into evidence; 8) that the trial judges erred in law in admitting any interviews into evidence; 9) that the trial judges erred in law in refusing to exclude the evidence given by Chief Superintendent Russell in circumstances where the defence’s ability to cross-examine and test that evidence was hampered by the assertion of a claim of privilege; 10) that the trial judges erred in law and in fact in holding that the decision in DPP v Farrell did not apply to this case; 11) that the trial judges erred in law and in fact in finding that the evidence did not go beyond the evidence of which the defence were on notice; and 12) that the trial judges erred in law and in fact in ruling that it would not be unfair to the accused to admit the evidence of Chief Superintendent Russell.

Held by the Court that it had not been disposed to uphold any of the appellant’s grounds of appeal. The Court was satisfied that the appellant’s trial was satisfactory and that his conviction was safe.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered the 20th of December 2019 by Mr Justice Edwards .

Introduction

1 On the 31st of July 2017 the appellant was convicted by the Special Criminal Court of the offence of Membership of an Unlawful Organisation, to wit an organisation styling itself the Irish Republican Army, otherwise known as Oglaigh na hÉireann, otherwise the IRA, on the 18th of December 2012, contrary to s. 21 of the Offences Against the State Act, 1939 (the “Act of 1939”) as amended by s. 48 of the Criminal Law (Terrorist Offences) Act, 2005. He was thereafter sentenced to imprisonment for five years, to date from the 16th of April 2016.

2 The appellant now appeals against his conviction.

Procedural History

3 The appellant was initially charged and returned for trial before the Special Criminal Court in respect of two offences. The first was an offence of Withholding Information, between the 10th of October 2012 and the 20th of December 2012, in relation to the murder of a Northern Ireland Prison Officer, a Mr Black, contrary to s. 9 of the Offences Against the State Act, 1998 (the “Act of 1998”) as amended. The second offence concerned the subject matter of the conviction which is now being appealed, i.e., Membership of an Unlawful Organisation to wit an organisation styling itself the Irish Republican Army, otherwise known as Oglaigh na hÉireann, otherwise the IRA, (hereinafter “the offence of membership”) on the 18th of December 2012.

4 On the 25th of February 2014, the respondent applied to sever the indictment. There was nothing unusual about this. It is the usual practice to do so in the Special Criminal Court where an accused is charged on the same indictment with the offence of membership and another offence or offences. The reason is that certain categories of evidence (namely belief evidence of a Chief Superintendent pursuant to s. 3(2) of the Offences Against the State (Amendment) Act 1972 (the “Act of 1972”), and also evidence entitling the court of trial to draw adverse inferences arising from the accused's failure or refusal to answer material questions, as provided for in s. 2 of the Act of 1998) are only admissible in a trial for the offence of membership. It has long been recognised that proceeding with both types of offences on the same indictment is procedurally unwieldly, and could potentially lead to unfairness to one, or other, or possibly both sides.

5 The respondent's application to sever was not opposed by counsel for the appellant, who indicated that it was a matter for the prosecution and that the defence could not oppose the application. Speaking for the Court, the senior presiding judge remarked in response to this: “It seems in ease of you, if anything.” The application was acceded to, following which prosecuting counsel informed the Court that it was proposed to proceed with the withholding information charge first and that the count charging the offence of membership would proceed immediately after the judgment of the court in the withholding information case.

6 The withholding information trial proceeded in March 2014 and the appellant was acquitted.

7 During that trial there had been a voir dire, in the course of which there had been a challenge to the arrest of the appellant on the 18th of December 2012. The evidence in regard to the arrest on that date was that the appellant had been arrested on suspicion of withholding information contrary to s. 9 of the Act of 1998 as amended and on suspicion of the offence of membership, contrary to s. 21 of the Act of 1939 as amended. However, there was evidence that the appellant had been arrested previously under s. 30 of the Act of 1939 on the 13th of September 2012. In the circumstances the defence relied on s. 30A of the Act of 1939, as amended, and contended that as the arrest at issue, i.e., the arrest on the 18th of December 2012 was less than three months since the earlier arrest under s. 30, i.e., on the 13th of September 2012, a warrant had been was required under s. 30A, absent which the later arrest was unlawful. The Special Criminal Court agreed and ruled the arrest on the 18th of December 2012 to have been unlawful in so far as it purported to have been made pursuant to s. 30 of the Act of 1939. However, the Special Criminal Court was satisfied that because the appellant was also arrested on suspicion of ‘withholding information’ contrary to s. 9 of the Act of 1998, as amended, his arrest and detention in connection that that matter had been lawful.

8 Importantly, no evidence was excluded at that trial because of the ruling that the s. 30 arrest on the 18th of December had been unlawful. Moreover, the ultimate acquittal of the appellant on the charge of withholding information had nothing to do with that ruling.

9 After the acquittal, counsel for the prosecution informed the Special Criminal Court that the respondent still intended to proceed with the prosecution for the offence of membership on the 18th of December 2012. This prompted the following exchanges:

“Senior Presiding Judge: Well, this is a membership charge where a decision has been made. I'm quite surprised that a decision has been made by the prosecution but we don't think that this case should have any priority. The man's on bail and we're certainly not going to disaccommodate people who are in custody because of him. So, we'll give you the first date available.

Prosecuting Counsel: May it please the Court.

Judge (Other): How long will it take?

Prosecuting Counsel: Certainly I would have thought from a prosecution perspective the last trial took over three sitting weeks. So, to be safe if we said six sitting days I'm sure –

Senior Presiding Judge: This Court has made a clear decision. A clear decision and a written decision –

Prosecuting Counsel: I appreciate that fully.

Senior Presiding Judge: – that the arrest was unlawful.

Defence Counsel: We'd be, on our side, happy with the same panel, my lords.

Senior Presiding Judge: I'm sure you would but –

Prosecuting Counsel: I don't think that would be appropriate.

Defence Counsel: Happy is the wrong words.

Senior Presiding Judge: Well, I think – yes. Sorry, I haven't discussed this with my colleagues but it...