DPP v Campbell

• Jurisdiction: Ireland
• Judge: Kearns J.
• Judgment Date: 04 March 2005
• Neutral Citation: [2005] IECCA 27
• Court: Court of Criminal Appeal
• Date: 04 March 2005

[2005] IECCA 27

THE COURT OF CRIMINAL APPEAL

Kearns J.

Herbert J.

Butler J.

[119&120/04]

DPP v CAMPBELL

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

LIAM CAMPBELL

APPELLANT

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT 1976 S2(6)

OFFENCES AGAINST THE STATE (SCHEDULED OFFENCES) ORDER 1972 S R & O 142/1942

UNLAWFUL ORGANISATION (SUPPRESSION) ORDER 1939 S R & O 162/1939

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2

OFFENCES AGAINST THE STATE ACT 1939 S2

CRIMINAL LAW ACT 1997 S4

OFFENCES AGAINST THE STATE ACT 1939 S19

COURTS OF JUSTICE ACT 1924 S29

COURTS OF JUSTICE ACT 1928 S5(1)(b)

UNLAWFUL ORGANISATION (SUPPRESSION) ORDER 1983 SI 7/1983

DPP v CAMPBELL 2004 2 ILRM 412

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S3

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S12

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

OFFENCES AGAINST THE STATE ACT 1939 S44

COURTS OF JUSTICE ACT 1924 S32

COURTS OF JUSTICE ACT 1924 S34

CRIMINAL PROCEDURE ACT 1993 S3

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S7

COURTS OF JUSTICE ACT 1924 S33

COURTS OF JUSTICE ACT 1924 S33(1)

WOODS, STATE v AG 1969 IR 385

DPP v CUNNINGHAM 2002 2 1R 712 2003 1 ILRM 124

DPP v BROWN UNREP CCA 21.2.2005

DPP v REDMOND UNREP CCA 28.7.2004

DPP v WILLOUGHBY UNREP CCA 18.2.2005

DPP, PEOPLE v MADDEN 1977 IR 336

DPP v NOONAN 1998 2 IR 439 1998 1 ILRM 154

DPP v MOLONEY UNREP CCA 2.3.1992 2001/15/4270

DPP v CRONIN UNREP CCA 16.5.2003 2003/15/3202

CRIMINAL LAW

Appeal Ground of appeal not raised in lower court - Whether points not taken at trial to be argued on appeal - Proscribed organisation - Whether organisation proscribed - Unlawful Organisation (Suppression) Order 1939 (SR&O 162/1939) - Criminal Procedure Act 1993 (No 40), s 3 - Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4), s 7 - State (Woods) v AG [1969] IR 385, People (DPP) v Moloney (Unrep, CCA, 2/3/1992) and People (DPP) v Cunningham [2002] 2 IR 712 considered - Leave to appeal refused (2004/119 & 120 - CCA - 4/3/2005) [2005] IECCA 27 People (DPP) v Campbell

the Unlawful Organisation (Suppression) Order 1939 declared that the organisation styling itself the Irish Republican Army, also the IRA and Oglaigh Na hÉireann, was an unlawful organisation. The applicant was convicted by the Special Criminal Court of membership of an unlawful organisation styling itself the Irish Republican Army, otherwise the IRA, otherwise Oglaigh Na hÉireann, contrary to section 21 of the Offences Against the State Act 1939, as amended. The applicant applied for leave to appeal the convictions on the ground that the Court erred in holding that the Real IRA, an organisation said to have come into existence in 1997, was a proscribed organisation within the terms of the Order of 1939 published pursuant to the Offences Against the State Act 1939. The prosecution contended that the accused could not rely upon that point as a ground of appeal as it had not been canvassed during the trial before the Special Criminal Court. At the hearing of the leave application, the accused accepted that the appeals would have to be dismissed but sought a ruling from the Court on the point so as to provide a vehicle for a reference to the Supreme Court on a point of law pursuant to section 29 of the Courts of Justice Act 1924 as to whether the Order of 1939 had application to an organisation which came into existence in 1997.

Held by the Court of Criminal Appeal in dismissing the applications for leave to appeal that,

1, the Court of Criminal Appeal was a creature of statute and a court of limited jurisdiction which could, in limited circumstances, receive new or additional evidence during an appeal.

2. That the ground of appeal sought to be agitated had not been raised in the court of trial, which was a necessary pre-condition to arguing the point on appeal. The reason for such a principle was to ensure a proper relationship between the conduct of an appeal and the task of the Court of Criminal Appeal which was to determine whether the trial was a safe or satisfactory one.

3. That the decision not to contest the State’s case or adduce evidence which could ground the appeal was a strategic decision which did not amount to an error or oversight on the part of the accused’s legal advisers.

Reporter: P.C.

1 JUDGMENT of the Court delivered the 4th day of March, 2005 by Kearns J.

2 On 18 ^th May, 2004, the appellant stood trial at the Special Criminal Court charged with membership of an unlawful organisation, contrary to s.21 of the Offences Against the State Act, 1939, as amended by s.2(6) of the Criminal Law Act, 1976. The particulars of the offence charged were that Liam Campbell was, on the 3 ^rd October, 2000, within the State, a member of an unlawful organisation, to wit: an organisation styling itself the Irish Republican Army, otherwise Oglaigh Na hÉireann, otherwise the IRA.

3 After the appellant had pleaded not guilty, counsel for the Director of Public Prosecutions handed into court by way of formal proof The Offences against the State Act Scheduled Offences Order, (S.R. & O. No. 142 of 1942) and also the Unlawful Organisation (Suppression) Order, 1939 (S.R. & O. No. 162 of1939) by virtue of which it was declared that the organisation styling itself the Irish Republican Army, also the IRA and Oglaigh Na hÉireann, was an unlawful organisation which ought in the public interest to be suppressed. Counsel in addition handed into court a copy of Iris Oifigiuil of 30 ^th May, 1972, recording the decision of the Government to establish the Special Criminal Court.

4 Thereafter, the court heard brief evidence for the prosecution from Chief Superintendent Michael Finnegan and Detective Garda Hanrahan. No evidence was called on behalf of the appellant.

5 Chief Superintendent Finnegan gave evidence that he had known the appellant for about 23/24 years and that Liam Campbell was a member of an unlawful organisation styling itself the Irish Republican Army, otherwise the IRA, otherwise Oglaigh Na hÉireann, and that he was a member of that organisation within the State on 3 ^rd October, 2000. He further gave evidence that this opinion or belief was based on confidential information. He gave further evidence of a search carried out at Mr. Campbell's home on the 3 ^rd October, 2000, and of the arrest of Mr. Campbell on that date. He further gave evidence that nothing found in the course of the search of Mr. Campbell's home contributed in any way to the formation of his belief or opinion.

6 Chief Superintendent Finnegan was not cross-examined.

7 Detective Sergeant William Hanrahan then gave evidence in relation to certain interviews conducted with the appellant subsequent to his arrest when he was brought to Kells Garda Station. He gave evidence that the appellant was specifically advised that he had been arrested under s.30 of the Offences against the State Act, 1939, for membership of the Irish Republican Army and would accordingly be questioned about his membership of that organisation. He further gave evidence that the provision of s.2 of the Offences against the State (Amendment) Act, 1939 - 1998 was read over to the appellant and explained in layman's terms to him and that a proper caution was administered to him. Detective Sergeant Hanrahan told the court that he explained the caution to Liam Campbell by telling him that if he failed or refused to answer questions under s.2 of the Offences against the State Act, 1939, his failure or refusal to answer material questions could have consequences for him at his trial.

8 He then gave evidence that the following specific questions were put to the appellant:-

"Our investigations to date satisfied us that you are a member of the Irish Republican Army, otherwise Oglaigh Na hÉireann, otherwise the IRA. Have you anything to say about that?"

9 He stated in evidence that Liam Campbell made no reply to this question.

10 He then asked the following question:-

"When did you join the IRA, otherwise Oglaigh Na hÉireann, otherwise Irish Republican Army?"

11 He gave evidence that Liam Campbell made no reply to this question.

12 He also gave evidence of asking the following question:-

"I now wish to remind you that I am investing the reports that you are a leading member of the IRA, otherwise Oglaigh Na hÉireann, otherwise Irish Republican Army."

13 Detective Sergeant Hanrahan gave evidence that Liam Campbell made no reply to this question or statement.

14 The remaining interviews followed precisely the same procedure and the prosecution relied on 6 interviews to provide corroboration for the evidence of Chief Superintendent Finnegan.

15 Detective Sergeant Hanrahan was not cross-examined or challenged in respect of any of these matters nor was he questioned about the origin, aims, composition or leadership of subversive groups including the IRA, Óglaigh Na hEireann, otherwise the Irish Republican Army or any groups believed to have split away from same. No submissions were made to the court at the conclusion of the prosecution case and, in particular, no rulings were sought about the applicability or otherwise of the 1939 Suppression Order in the case of the appellant.

16 Having found the appellant guilty as charged, the court then embarked upon the further trial of the appellant in Bill No. 11S/2001 whereunder the appellant stood charged with membership of an unlawful organisation contrary to s.21 of the Offences Against the State Act, 1939, as amended by s.2(6) of the Criminal Law Act, 1976, the particulars whereof being that Liam Campbell was, on the 29 ^th July, 2001, within the State, a member...