DPP v Campbell
| Jurisdiction | Ireland |
| Judge | McGuinness J. |
| Judgment Date | 23 February 2004 |
| Neutral Citation | 2004 WJSC-CCA 3324,2003 WJSC-CCA 3043 |
| Court | Court of Criminal Appeal |
| Date | 23 February 2004 |
BETWEEN
AND
2003 WJSC-CCA 3043
McGuinness J.
O'Donovan J.
Herbert J.
COURT OF CRIMINAL APPEAL
Synopsis:
CRIMINAL LAW
Evidence
Conviction of membership of IRA - Sentencing - Whether conviction should be quashed - Whether applicant received fair trial - Whether interviews should have been admitted into evidence - Unlawful Organisation (Suppression) Order, 1939 - Offences Against The State Acts, 1939–1998 (202/2001 - Court of Criminal Appeal - 19/12/2003)
DPP v Campbell
The applicant sought leave to appeal against his conviction of membership of an unlawful organisation, namely the Irish Republican Army, contrary to section 21 of the Offences Against The State Acts, 1939-1976. The applicant had principally three grounds of appeal. It was contended that the Suppression Order of 1939 was ineffective in the case of the applicant. The Suppression Order was directed against members of the IRA and did not operate in the case of the Real IRA which came into being after the Suppression Order was issued. In addition it was argued that the court of trial should not have admitted records of Garda interviews into evidence. In particular it was argued that the applicant had been confused by the withdrawal of the caution pursuant to section 2 of the Offences Against The State (Amendment) Act, 1998. Furthermore it was submitted that the applicant should not have been cross-examined in relation to a number of items found at his premises and in relation to his association with a particular person.
Held by the Court of Criminal Appeal (McGuinness J delivering judgment, O'Donovan J and Herbert J agreeing) in quashing the conviction and ordering a re-trial. Labels such as official, real, continuity were irrelevant in considering whether an organisation was within the ambit of the Suppression Order. There had not been any unfairness in the procedures followed by An Garda Síochána during the interviews conducted with the applicant which would have rendered the evidence inadmissible. The applicant had however been given no notice of the cross-examination of him with regard to his alleged connection with a particular person and this was in the nature of an ambush. This cross-examination was not relevant to the offence with which the applicant was charged and was clearly prejudicial. On this ground the applicant's conviction would be quashed and a re-trial ordered.
Reporter: R.F.
Citations:
OFFENCES AGAINST THE STATE ACT 1939 S21
CRIMINAL LAW ACT 1976 S2(6)
OFFENCES AGAINST THE STATE ACT 1939 S19
UNLAWFUL ORGANISATION (SUPPRESSION) ORDER 1939 SR& O 162/1939
UNLAWFUL ORGANISATION (SUPPRESSION) ORDER 1983 SI 7/1983
DPP, PEOPLE V QUILLIGAN 1986 IR 495
OFFENCES AGAINST THE STATE ACT 1939 PART III
O'BRADAIGH V FANNING UNREP KENNY 25.11.1972
OFFENCES AGAINST THE STATE ACT 1939 S18
OFFENCES AGAINST THE STATE ACT 1939 S30
OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S30
OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2
OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2(1)
OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2(2)
R V BASKERVILLE 1916 2 KB 658
AG, PEOPLE V PHELAN 1 FREWEN 98
RYAN & MAGEE THE IRISH CRIMINAL PROCESS 322
DPP V CULL 2 FREWEN 36
OFFENCES AGAINST THE STATE ACT 1939 PART IV
HEALY, STATE V DONOGHUE 1976 IR 325
COURTS OF JUSTICE ACT 1928 S5(1)(B)
Judgment of the Court delivered the 19th day of December 2003 by McGuinness J.
The applicant was convicted in the Special Criminal Court on the 23 rd October 2001 on a charge of membership of an unlawful organisation to wit an organisation styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann, otherwise the IRA contrary to section 21 of the Offences Against the State Act 1939as amended by section 2(6) of the Criminal Law Act 1976. He was sentenced to a term of five years imprisonment the last three months being suspended. Leave to appeal both conviction and sentence was refused by the Court. In this Court he now seeks leave to appeal both as regards conviction and sentence. His application for leave to appeal is treated as a substantive appeal.
The applicant's grounds of appeal, which were submitted to the Court of Trial at the application for leave to appeal, are set out in the Notice of Appeal as follows:
2 "1. The Court erred in holding that the "Real IRA" was a proscribed organisation within the terms of the Suppression Order published pursuant to Section 19 of the Offences Against the State Act 1939.
2. The Court erred, in law, in admitting interviews into evidence.
3. The Court erred in admitting the evidence of Chief Superintendent Finnegan, or alternatively acting upon such evidence on the basis that the opinion was based on privileged information.
4. The Court erred in relying of evidence upon any aspect of the search of the house to establish the offences proven.
5. The Court further erred in relying, as evidence, upon any item seized in the course of the search for the purpose of proving the offence.
6. The Court further erred in finding that the Section 2 interviews were capable of corroboration without first considering the Chief Superintendent's opinion, on its own merits, to establish whether it was capable of being acted upon.
7. The Court erred in permitting cross-examination in respect of items found at Mr Campbell's home.
8. The Court further erred in making an adverse finding in respect of credibility on questions based on such items.
9. The Court further erred in making a finding in connection with tubing found on Mr Campbell's premises which were:
(a) contrary to the expert evidence called by the Prosecution,
(b) in effect amounted to a fresh investigation into the items seized, which is in breach of the Court's ruling at the conclusion of the Prosecution case and further making findings in respect of such items which were never put to Mr Campbell in giving evidence.
10. The Court erred in failing to give any or any appropriate weight to the matters submitted by the Defendant in closing submissions.
11. The Court erred in permitting the Prosecution to introduce matters for the first time in cross-examination, the issue of Mr Sean Mulligan and a GPO poster and another matter.
12. The Court further erred, it is submitted in finding that the accused did not have a right to silence during the Section 2 interviews."
In his submissions to this Court senior counsel for the applicant, Mr O'Higgins, relied on three main grounds:
1. The Suppression Order of 1939 in regard to the IRA was ineffective in the case of the applicant who was in fact accused of membership of the Real IRA, an organisation which came into existence in 1997.
2. The Court of Trial should not have admitted into evidence the Garda records of a number of interviews with the applicant.
3. The Court of Trial should not have permitted cross-examination of the applicant in connection with a number of items found in a Garda search of his premises. Having permitted such cross-examination, the Court in its judgment should not have drawn inferences as to the applicant's credibility and as to his guilt or innocence from the applicant's replies during this cross-examination.
As to the first ground Mr O'Higgins submitted that it was a necessary proof in relation to the charge of membership of an unlawful organisation that the organisation has been correctly suppressed under the relevant legislation – in this instance by the making of a Suppression Order pursuant to section 19 of the Offences Against the State Act 1939.
The relevant section provides as follows:
"19(1) If and whenever the Government are of opinion that any particular organisation is an unlawful organisation, it shall be lawful for the Government by order (in this Act referred to as a suppression order) to declare that such organisation is an unlawful organisation and ought, in the public interest, to be suppressed.
(2) The Government may be order, whenever they so think proper, amend or revoke a suppression order.
2 (3)Every suppression order shall be published in the Iris Oifigiúil as soon as conveniently may be after the making thereof.
(4) A suppression order shall be conclusive evidence for all purposes other than an application for a declaration of legality that the organisation to which it relates is an unlawful organisation within the meaning of this Act."
The Suppression Order relied on by the prosecution – the Unlawful Organisation (Suppression) Order 1939 [SR & O No. 162 of 1939] – declares that:
"The organisation styling itself as the Irish Republican Army (also the IRA and Oglaigh na hÉireann is an unlawful organisation and ought, in the public interest, to be suppressed."
Mr O'Higgins pointed out that to date only two Suppression Orders had been issued by the Government, that of 1939 as quoted above and that of 1983 [S.I. No 7 of 1983] in respect of an organisation styling itself the "Irish National Liberation Army". The 1983 Suppression Order was clearly irrelevant in the case of the applicant.
Mr O'Higgins argued that in reality the applicant was accused of membership of the dissident republican group, the Real IRA. This group was distinct from other IRA groups such as the Official IRA, the Provisional IRA and the Continuity IRA in its membership, aims and tactics. It was a separate organisation which, as was accepted by Chief Superintendent Finnegan in his evidence, emerged in or about 1997. It was submitted that a Suppression Order made in 1939 based on the existence of "the IRA", in that year could not relate to an organisation that came into existence nearly sixty years after the Order was made.
Mr O'Higgins referred to the evidence given in...
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