DPP v Ciaran Maguire

JurisdictionIreland
JudgeMs. Justice Kennedy
Judgment Date30 July 2021
Neutral Citation[2021] IECA 223
Docket NumberRecord Number: 225/18
CourtCourt of Appeal (Ireland)
Between/
The People at the Suit of the Director of Public Prosecutions
Respondent
and
Ciaran Maguire
Appellant

[2021] IECA 223

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 225/18

THE COURT OF APPEAL

Conviction – Membership of an unlawful organisation – Unfair trial – Appellant seeking to appeal against conviction – Whether the trial of the appellant was unfair

Facts: The appellant, Mr Maguire, on the 30th May 2018, was convicted of a count of membership of an unlawful organisation contrary to s. 21 of the Offences Against the State Act 1939, as amended. He appealed to the Court of Appeal against conviction. He put forward four discrete areas in which it was argued that the trial of the appellant was unfair: (1) the arrest of the appellant was unlawful, in circumstances where no warrant was sought for his re-arrest, as required by s. 30(a)(1) of the 1939 Act; (2) the prosecution failed to prove the lawfulness of the surveillance evidence adduced against him, in circumstances where no evidence was given of approval granted by a senior officer to plant a surveillance device in the appellant’s car; (3) the trial process was rendered unfair due to the repeated interruption by the trial court of the cross-examination of a centrally relevant witness; (4) the trial court erred in admitting s. 19 inferences.

Held by the Court that the finding of fact that the activities in July 2017 were separate and distinct from the arrest in June 2015 as those activities only occurred in July 2017 and therefore were not in existence in June 2017 was one which was supported by the evidence. The Court held that there simply could not have been a connection between the two arrests as the events which gave rise to the August 2017 arrest only came about in July 2017; moreover, the offence of membership for which the appellant was arrested related to a single specified date. The Court found no error in the evaluation of the evidence and the ultimate conclusion by the court of trial and accordingly the first ground failed. The Court endorsed the opinion expressed by the court that the provisions of the Criminal Justice (Surveillance) Act 2009 (insofar as approval/authorisation is required) do not apply to visual observation evidence; that class of evidence is admissible subject to the ordinary rules of evidence and constitutional imperatives. The Court found no error in the trial court’s ruling in that respect and rejected the second ground of appeal. The Court was not persuaded that the interventions by the court of trial were unfair or impeded the cross-examination of the witness. Nor was the Court persuaded that the interventions by the court effectively protected the witness. The Court held that this was a court of extremely experienced judges who sought to ensure that the cross-examination of the witness was fair and within the rules of evidence. Accordingly, the Court rejected the third ground of appeal. The Court held that the court of trial carefully considered the submissions made on behalf of the parties and gave its reasoned judgment the following day and ruled that the statutory prerequisites for the proper invocation of s. 19 were met. The Court found no error in that regard and accordingly, the fourth ground of appeal failed.

The Court held that the appeal against conviction would be dismissed.

Appeal dismissed.

UNAPPROVED

JUDGMENT of the Court delivered on the 30th day of July 2021 by Ms. Justice Kennedy.

1

. This is an appeal against conviction. On the 30 th May 2018 the appellant was convicted of a count of membership of an unlawful organisation contrary to section 21 of the Offences Against the State Act 1939, as amended.

Background
2

. The prosecution case against the appellant was predicated on three strands: Firstly, there was the belief evidence. Detective Chief Superintendent Thomas Maguire gave evidence of his belief that Mr Maguire was a member of the Irish Republican Army, otherwise known as Óglaigh na hÉireann, otherwise known as the IRA, within the State, on the 2 nd of August 2017.

3

. Secondly, there was the conduct evidence. This evidence formed the trigger event which led to the appellant's arrest. Surveillance and CCTV evidence garnered on the 12 th and 13 th of July 2017 showed that the appellant participated in two journeys to the Oakleigh Estate at Longwood. The first of these, on the 12 th of July 2017, was for the purpose of reconnaissance and was preparatory to the second on the 13 th of July 2017 which was for the purpose of intimidating Robert Moore. Mr Moore was, at the time, in a dispute with his former employer over an injury suffered at work. Mr Moore gave evidence that two men called to his door told him to drop his claim against his employer. When he questioned them, one of the men stated, “We are the IRA, and the next time we come down to see you, we'll be coming down to shoot you.”

4

. The third and final strand of the prosecution case against Mr Maguire rested on inferences to be drawn from the appellant's failure to respond to material questions put to him after the invocation of certain statutory inference provisions.

5

. The trial court found the appellant guilty and concluded as follows:-

“In considering the totality of the strands of the evidence put forward by the prosecution, the Court has likewise borne in mind the requirement that the belief evidence in Mr Maguire's case as to membership must be supported by some other evidence that implicates the accused in the offence charged and is independent of the witness giving the belief evidence. We refer again to the formulation of that requirement as set out by the late Hardiman J in Redmond, and we emphasise again that such independent support may be found in circumstantial evidence. We point out again that circumstantial evidence consists, as it does in this case, of individual strands that are insufficient in themselves to prove the proposition in issue but the cumulative weight of which may suffice for that purpose. It is in the nature of circumstantial evidence that it may be difficult to find one piece of such evidence which, of itself, sufficiently implicates the accused. Belief evidence in this case could not implicate the accused. Conduct evidence may be argued to be ambiguous as to context, in terms of membership. Inferences drawn pursuant to section 2 of the 1998 Act, or indeed in relation to section 19 of the 1984 Act, as a matter of law can only be corroborative or supportive of other evidence and can never be sufficient on a standalone basis to prove membership, and indeed may only be drawn if it is proper to do so under those sections.

In this case, the Court has taken the view that it is proper to draw an inference that the silence of the accused in response to material questions corroborate the other strands as they bear upon the issue of his membership of an unlawful organisation. Crucially, the conduct evidence and the statutory inferences from silence have the necessary quality of being independent of the belief evidence. The Court has reviewed the entirety of the evidence in Mr Maguire's case and has not found any fact or consideration in the conduct or inference evidence which is inconsistent with the premise of the belief evidence. On the contrary, the other two strands of evidence relied upon by the prosecution, when taken in combination with the belief evidence, are of such weight that, in our view, they point surely and inevitably to the conclusion that there remains no reasonable possibility consistent with the proposition that Mr Maguire was not a member of the IRA on the date in question. In view of our conclusion that membership is sufficiently and unambiguously established by the combined weight of the belief, conduct and inference strands of the evidence, the Court therefore convicts Mr Maguire on the sole count on the indictment and the Court will so order.”

Grounds of Appeal
6

. The appellant puts forward four discrete areas in which it is argued that the trial of the appellant was unfair:-

  • (1) The arrest of the Appellant was unlawful, in circumstances where no warrant was sought for his re-arrest, as required by S.30(a)(1) OASA, as amended.

  • (2) The prosecution failed to prove the lawfulness of the surveillance evidence adduced against him, in circumstances where no evidence was given of approval granted by a senior officer to plant a surveillance device in the Appellant's car.

  • (3) The trial process was rendered unfair due to the repeated interruption by the Trial Court of the cross-examination of a centrally relevant witness.

  • (4) The Trial Court erred in admitting s.19 inferences.

Ground One- The appellant's arrest
7

. This ground is concerned with the lawfulness of the appellant's arrest in August 2017. On the 2 nd August 2017 the appellant was arrested under the provisions of section 30 of the Offences Against the State Act 1939. During the trial the appellant argued that this arrest was not in accordance with law as the appellant had previously been arrested in June 2015 for the offence of membership of an unlawful organisation, but no charge had been directed.

8

. Section 30(a)(1) of the 1939 Act provides as follows:-

“(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 30 of this Act and is released without any charge having been made against him, he shall not—

(a) be arrested again in connection with the offence to which the detention related, or

(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Síochána by whom he was arrested, suspected, or ought reasonably to have suspected, him of having committed,

except under the authority of a warrant issued by a judge of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of...

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