DPP v Farrell
| Jurisdiction | Ireland |
| Judge | Hardiman J. |
| Judgment Date | 10 April 2014 |
| Neutral Citation | [2014] IECCA 37 |
| Court | Court of Criminal Appeal |
| Date | 10 April 2014 |
Between:
and
[2014] IECCA 37
Hardiman J.
Herbert J.
McDermott J.
THE COURT OF CRIMINAL APPEAL
Crime & sentencing – Offences against the state –Óglaigh na Éireann – Membership of
Facts: The appellant had been charged with membership of an unlawful organisation, namely Óglaigh na Éireann. Evidence was adduced at the Special Criminal Court trial that a Garda Síochána Chief Superintendent considered that the appellant was a member of that organisation, albeit not by the member of the Gardaí initially scheduled to attend. This evidence went beyond the statement of proposed evidence, and the appellant now sought to appeal, inter alia, on the basis of the lack of notice of the evidence to be given.
Held by Hardiman J, that there were distinctions between the instant case and earlier case law where convictions had been set aside. However, the salient point was that the appellant had not been given sufficient, or indeed any, notice of the matters the Chief Superintendent wished to put before the Court. Where the prosecution sought to rely on this material, sufficient disclosure of the additional evidence was required. As this did not occur in the instant case, the conviction would be quashed. DPP v Cull (1980) 2 Frewen 36 considered.
OFFENCES AGAINST THE STATE ACT 1939 S21
CRIMINAL LAW ACT 1976 S2
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S48
OFFENCES AGAINST THE STATE ACT 1939 S19(1)
OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3
OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2
DPP v KELLY 2006 3 IR 115 2006 2 ILRM 321 2006/19/3876 2006 IESC 20
OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3(2)
DPP v DONNELLY & ORS UNREP CCA 30.7.2012 2012/11/3180 2012 IECCA 78
DPP v CULL 2 FREWEN 36 1981/2/254
On the 18 th May, 2012, the appellant (Mr. Farrell) was convicted by the Special Criminal Court on a charge of membership of an unlawful organisation contrary to s.21 of the Offences Against the State Act, 1939 as amended by s.2 of the Criminal Law Act, 1976 and as amended by s.48 of the Criminal Justice (Terrorist Offences) Act 2005.
The indictment alleged that he was on the 7 th July, 2011, within the State, a member of an unlawful organisation to wit an organisation styling itself the Irish Republican Army, otherwise known as Óglaigh na hEireann, otherwise the IRA. There is no dispute that the organisation so denominated is an unlawful organisation and has been the subject of a suppression order pursuant to s. 19(1) of the Offences Against the State Act, 1939.
Mr. Farrell was arrested in the late afternoon of the 7 th July, 2011 in Clanbrassil Street, Dublin. Earlier that day there had been text communication between him and a Mr. Paul May in which it had been arranged that Mr. Farrell would call down to the home of Mr. May, in Bride Road, Dublin 8. He did this and remained there for about ten minutes. Shortly after leaving the property he was arrested. He had in his possession at that time a mobile phone which was registered in the name of Séan Lynch with an address in Crumlin. This was the phone which had been used in the earlier texts. He also had a bag containing tools and DVDs.
The applicant was taken to Kevin Street Garda Station where he was interviewed on six occasions. His detention concluded at 1.48pm on the 9 th July, 2011. On release, however, he was re-arrested and taken before the Special Criminal Court charged with the membership offence.
The trial of the applicant commenced on the 19 th April, 2012 before the Special Criminal Court. The substantive evidence against him was the opinion of a Garda Chief Superintendent which was adduced in evidence pursuant to s.3 of the Offences Against the State (Amendment) Act, 1972 as amended:
"(2) Where an officer of the Garda Síochána not below the rank of Chief Superintendent in giving evidence in proceedings relating to an offence under the said s.21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidenced that he was then such a member."
This evidence was supported by the terms of the six interviews with the appellant which took place in Kevin Street Garda Station. In the course of these interviews the provisions of s.2 of the Offences Against the State (Amendment) Act 1998 were invoked. In the main, the applicant confined his response to questions to "no comment". However, he denied membership of an unlawful organisation.
The statutory provision under which this evidence is admissible has already been set out. In the present case the statements of proposed evidence indicated that the belief evidence relied upon would be that of Chief Superintendent Kevin Donohoe. But this witness was taken ill and was unable to give evidence. Accordingly, the prosecution served a notice of additional evidence on the defendant. This was the evidence of Chief Superintendent Diarmuid O'Sullivan. The Notice of Additional Evidence was in precisely the same terms (apart from personal details) as that of the Chief Superintendent originally scheduled to give evidence. The substance of his evidence, as set out on pages 13/14 of the judgment of the Special Criminal Court was:
"On the basis of confidential information available to me, I believe that Sean Farrell, bom on 29th September 1984, of 76 Kilfenora Road, Crumlin, Dublin 12, is, within the State, a member of an unlawful organisation, namely, the IRA, otherwise known as Óglaigh na hEireann, otherwise the Irish Republican Army and that he was a member of that organisation on 7 th July, 2011."
Unlike the Chief Superintendent originally scheduled to give evidence, Chief Superintendent O'Sullivan was intimately involved in the operation of which Mr. Farrell's arrest was part. But he confirmed that he did not base his belief on any matters disclosed at the time of that arrest, or after that arrest, or any conduct or admissions, statement or replies made by Mr. Farrell in the course of the investigation or during the course of his arrest and detention.
It will, of course, be apparent that evidence of the sort given by the Chief Superintendent is evidence of a most unusual nature. Opinion or belief evidence is normally confined to the evidence of experts and is only admissible on a charge such as this by special statutory dispensation, which is set out above. The extra-ordinary nature of the Chief Superintendent's opinion evidence was discussed by Fennelly J. in DPP v. Martin Kelly [2006] 3 IR 115 at 130:
"This is evidence of a quite exceptional kind. Whether or not an accused person is a member of an unlawful organisation is a question of fact. The Chief Superintendent gives evidence, not of fact, but of belief. His belief does not have to be based on direct knowledge of the involvement of the accused in the unlawful organisation in question. It is patently based on statements of others, whether inside or outside the force. It is probably frequently based on an intelligence available to An Garda Síochána. That is precisely what is permitted by the Section. Such evidence, if given openly, would infringe the hearsay rule, an objection which is circumvented by the Section. The Chief Superintendent simply says what his belief is."
It is quite clear from the extract from the Chief Superintendent's statement of evidence, which is set out above, that his opinion is based, in the terms in which it was notified, not on his own knowledge but on "confidential information". This gives rise to a considerable difficulty in testing or challenging it since of course the person who is the source of the information is not in court and (as in this case) enquiries as to the source will invariably lead to a claim of privilege, invariably upheld.
It is, of course, necessary to recall that this form of evidence is rendered admissible in connection with offences relating to membership of unlawful organisations. These organisations, notoriously, have been guilty of violence of an undiluted character and are capable of endangering the lives of persons whom they consider to be inimical to them. It is those undeniable facts which render necessarily the altogether extraordinary measure set out in s.3(2) of the Act of 1972, set out above.
From the defence point of view, the statutory power to receive evidence of this sort makes it extremely hard for a defendant who rejects the membership charge brought against him to cross-examine the Chief Superintendent with a view to undermining the credibility of his evidence. Though the entitlement to claim privilege is quite understandable, and indeed necessary, the entitlement can create a cocoon into which a challenged witness can retreat leaving very little scope for the necessary testing of the evidence by the Defence. If the Chief Superintendent is wrong there is a real risk of miscarriage of justice.
During the cross-examination of the opinion witness, Chief Superintendent O'Sullivan, on the seventh day of the trial (2nd May 2012) the following relevant exchanges took place:
(Emphasis added)
(Transcript, Day 7 pp 7/8)
| "Q. | Just first of all, in relation to your not basing it on anything that arose during the course of this investigation, you made a statement, Chief Superintendent, that in July 2011, last year, you were conducting an investigation or an operation targeting dissident republicans, words to that effect. Do you recall making that statement? |
| A. | Yes, Judges. |
| Q. | And since then, of course, you have been involved in this particular investigation and this prosecution, so,... |
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