DPP v Donnelly

JurisdictionIreland
JudgeO'Donnell J.
Judgment Date30 July 2012
Neutral Citation[2012] IECCA 78
CourtCourt of Criminal Appeal
Date30 July 2012
DPP v Donnelly & Ors

Between:

The People at the Suit of the Director of Public Prosecutions
Respondent

And

Desmond Donnelly, Gerard McGarrigle and James Murphy
Appellants/Accused

[2012] IECCA 78

O'Donnell J.

Birmingham J.

Hogan J.

[C.C.A. No. 3, 4 & 5 of 2011]

COURT OF CRIMINAL APPEAL

Criminal law - Appeal - Right to silence - Powers of Arrest - Privileged information - Belief of Superintendent as to membership of unlawful organisation - Whether appellants lawfully arrested - Whether evidence admissible - Offences Against the State Act, 1939 - Criminal Justice (Terrorist Offences) Act, 2005 - Offences Against the State (Amendment) Act, 1972 - 1998 - European Convention on Human Rights.Criminal law - Appeal - Right to silence - Powers of Arrest - Privileged information - Belief of Superintendent as to membership of unlawful organisation - Whether appellants lawfully arrested - Whether evidence admissible - Offences Against the State Act, 1939 - Criminal Justice (Terrorist Offences) Act, 2005 - Offences Against the State (Amendment) Act, 1972 - 1998 - European Convention on Human Rights.

Facts The appellants were all arrested after a car in which they were travelling was stopped in the early hours of the morning and a number of incriminating items were found. The Gardai had received information that dissident republicans were planning to commit a crime and had accordingly set-up a number of checkpoints. The three appellants were subsequently convicted by the Special Criminal Court of membership of an unlawful organisation (Ã"glaigh na hÉireann) contrary to s.21 of the Offences Against the State Act, 1939. While detained the appellants refused to answer a number of questions and the trial court was satisfied that inferences could be drawn from same. The appellants sought to appeal the conviction on the basis that their arrest was unlawful and contested evidence arising therefore was inadmissible. A challenge was also made to the inferences drawn from the refusal to answer questions and its incompatibility with the European Convention of Human Rights. Issue was also taken with the defence contending that no opportunity was afforded to them to test the evidence upon which the Gardai had relied.

Held by the Court of Criminal Appeal (O'Donnell J delivering judgment) in dismissing the appeal: The appellants were correctly informed of the offences for which they were being arrested for. The belief by a senior garda pursuant to s.3 of the Offences Against the State (Amendment) Act, 1972 that a person was a member of an illegal organisation was based on a variety of informed sources. The drawing of inferences from failure to answer questions (pursuant to section 2 of the Offences Against the State (Amendment) Act 1998) was subject to a number of safeguards. The trial court was entitled to draw the inference which it had. Each accused had failed to answer a number of material questions concerning the items found and their movements that night. The court had been entitled to conclude that the failure to answer questions material to the investigation was capable of amounting to corroboration of the evidence of the belief of the chief superintendent. The accused men had made no effort to challenge the assertion that they were members of an illegal organisation, or to offer any explanation for their conduct.

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S48

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2

PEOPLE (DPP) v TOWSON 1978 ILRM 122

CHRISTIE v LEACHINSKY 1947 AC 573

PEOPLE (DPP) v QUILLIGAN & O'REILLY 1986 IR 495

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3

DOORSON v THE NETHERLANDS 1996 22 EHRR 330

AL-KHAWAJA & TAHERY v UK 2011 54 EHRR 23

MURRAY v UK 1996 EHRR 3

R v HORNCASTLE 2010 2 AC 373

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

CONSTITUTION ART 38

MCD (J) v L (P) 2010 2 IR 199

O'LEARY v AG 1993 1 IR 102

DPP v KELLY 2006 3 IR 115

DPP v BINÉAD & DONOHUE 2007 1 IR 374

REDMOND v IRELAND 2009 2 ILRM 419

PEOPLE (DPP) v CULL 1980 2 FREWEN 36

OFFENCES AGAINST THE STATE ACT 1939 PART V

MARKS v BEYFUS 1890 25 QB 494

HOWLIN v MORRIS 2006 2 IR 321

MURRAY v UK 1996 22 EHRR 29

PREVENTION OF TERRORISM (TEMPORARY PROVISION) ACT 1989

R v LUCAS 1981 QB 720

DPP v DEVLIN UNREP CCA 6.7.2012 2012 IECCA 70

CRIMINAL JUSTICE ACT 1984 S18

CRIMINAL JUSTICE ACT 2007 S28

DPP v GILLIGAN 2006 1 IR 107

CRIMINAL JUSTICE ACT 1984 S18

KELLY v IRELAND 2010 ECHR 2215

1

Judgment of the Court delivered on the 30th day of July, 2012, by O'Donnell J.

2

1 On the 24 th of November, 2010, the appellants herein were convicted by the Special Criminal Court of a charge of membership of an unlawful organisation contrary to s.21 of the Offences Against the State Act 1939 as amended by s.48 of the Criminal Justice (Terrorist Offences) Act 2005. The appellants were three of four men arrested after a car in which they were travelling was stopped at a garda checkpoint operating in the vicinity of Oldtown Bridge, Oldtown, Letterkenny, County Donegal, in the early hours of Sunday the 22 nd February, 2010. The fourth passenger in the vehicle was not charged.

3

2 The background facts are set out succinctly in the judgment of the Special Criminal Court as follows:

Background:
4

It is the prosecution case that on the night of February 2010 Superintendent Vincent O'Brien who was the officer in charge of Letterkenny Garda Division, was on duty at Letterkenny Garda Station when he received confidential information for what he described as "a reliable source" to the effect that dissident republicans were planning to commit a "tiger kidnapping" or a robbery in the Letterkenny area on Sunday the 21 st February 2010. As a result of that, he called a number of his staff to his office and briefed Superintendent Michael Finnan, who was the superintendent on call for that weekend. Also present at that meeting were Detective Inspector Kevin English and Detective Sergeant Michael Carroll. They were informed of the information and Detective inspector English was directed to prepare an operational order or briefing document. That order was for a two phase operation. Phase one was to be a covert and phase two was to be overt. It was directed that a number of check points be established in the overt stage of the plan, around the town of Letterkenny. Superintendent English said that the information that he had received that named members of Óglaigh na hÉireann, namely the three defendants and a number of others were to travel to Letterkenny on that Sunday to conduct that "tiger kidnapping" or robbery. He was supplied with details of a number of cars that might be used in the operation. He had no information as to the intended target."

5

It should be stated at this point that these matters emerged in evidence because they were relevant to the question agitated at the trial as to the lawfulness of the arrest of the accused. The judgment continues:

"As part of that operation a garda check point was set up outside Letterkenny, in an area called Oldtown. The car was stopped at about 12.30 am on the 22 nd of February 2010. It was a dark coloured Mercedes with four occupants. They were asked about their identity and when it was ascertained that, in particular, the identity of the driver was Mr Donnelly, one of the accused, each of the men was informed that they would be detained for the purposes of a search under s.30 of the Offences Against the State Act aforesaid. A cursory brief inspection of the car revealed certain items in the boot comprising cable ties. Each of the four men including the three accused were arrested, pursuant to s.30 of the Offences Against the State Act aforesaid."

6

It is necessary here to interpolate that the men were arrested on suspicion of the offence of membership of an illegal organisation contrary to s.21 of the Offences Against the State Act 1939.

7

The judgment continued:

"Subsequently there was full search of the car and this revealed that there were a number of further items in it, including what appeared to be an imitation fire arm in the left rear foot well, four pairs of gloves three of which were black latex gloves, a hat described as a "beanie" hat, the aforesaid cable ties of which there were nine, and a number of black bin liners."

"Each of the accused were required to answer questions pursuant to s.2 of the Offences Against the State Act aforesaid, and it is alleged that each failed to answer a number of material questions put to them thereunder."

8

3 In relation to the accused Gerard Donnelly he was interviewed on seven occasions during his detention following arrest. During five of the interviews the gardaí invoked the provisions of s.2 of the Offences Against the State (Amendment) Act 1998. For the most part on each occasion and to each question, the appellant refused to answer, and indeed said nothing. However, on two occasions he did speak. In interview three on the first day of his detention he said "I wish to make a statement, I was in Letterkenny with friends. I have been accused of membership of an illegal organisation; I am not and have not been involved in any illegal activity; I am not associated with, or a member of any illegal organisation." At interview five, and after an interview in which he had been shown various items recovered from the car, he said "regarding the last interview, I know nothing about any article shown to me. Any DNA or anything after is pure accidental." In the case of the appellant Jim Murphy, he was interviewed on eight occasions and on each occasion and to each question the appellant did not answer. Finally, in relation to Gerard McGarrigle, in his first interview he was...

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