DPP v Hannaway, Shannon, Hannaway, Nooney, O'Brien

JurisdictionIreland
JudgeMr Justice Edwards
Judgment Date06 February 2020
Neutral Citation[2020] IECA 38
CourtCourt of Appeal (Ireland)
Docket NumberRecord Nos: 251/18, 254/18, 240/18, 226/18, 241/18
Date06 February 2020
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
KEVIN HANNAWAY, EVA SHANNON, SEAN HANNAWAY, DAVID NOONEY

AND

EDWARD O'BRIEN
APPELLANTS

[2020] IECA 38

The President

Edwards J.

McCarthy J.

Record Nos: 251/18, 254/18, 240/18, 226/18, 241/18

THE COURT OF APPEAL

Conviction – Providing assistance to an unlawful organisation – Unsatisfactory trial – Appellants seeking to appeal against convictions – Whether the appellants’ trials were satisfactory

Facts: The first and second appellants, Mr K Hannaway and Ms Shannon, on 29th June 2018, following a fifty-day trial, were convicted of the offence of providing assistance to an unlawful organisation contrary to s. 21A of the Offences Against the State Act 1939, as inserted. The other appellants, Mr S Hannaway, Mr Nooney and Mr O’Brien, were convicted of the offence of membership of an unlawful organisation. Following a sentence hearing which took place on 24th July 2018, the Special Criminal Court, on 31st July 2018, sentenced Mr K Hannaway to a term of three years and nine months’ imprisonment, Ms Shannon to a term of four years imprisonment, Mr S Hannaway to a term of five years and six months imprisonment, Mr Nooney to a term of three years and nine months imprisonment, and Mr O’Brien to a term of sixteen months imprisonment. All five appellants appealed to the Court of Appeal against conviction. The appellants each lodged a separate Notice of Appeal, relying on distinct grounds of appeal therein. There was a great degree of thematic overlap within the grounds of appeal advanced, something which the appellants themselves had recognised both in their written and oral submissions. As such, it was possible to condense and summarise the grounds of appeal into the following issues: (i) the prosecution’s reliance on belief evidence; (ii) the refusal to disclose surveillance devices and associated items; (iii) the admissibility of the “PB1” audio recording, and the transcript of it; (iv) the lawfulness of the initial search, detention, and arrests of the respective appellants; (v) the failure to direct an acquittal or stay the trial at the end of the prosecution’s case; (vi) the purported identification or attribution made during the prosecution’s closing speech; (vii) the jurisdiction of the Special Criminal Court (Mr O’Brien only); and (viii) the interviews conducted under s. 2 of the Offences Against the State (Amendment) Act 1998 (Mr O’Brien only).

Held by the Court that, in circumstances where it had not been disposed to uphold any of the appellants’ complaints, it was satisfied that their trials were satisfactory and that their verdicts were safe.

The Court held that it would dismiss the appeals of each of the appellants against their respective convictions.

Appeals dismissed.

JUDGMENT of the Court delivered on the 6th of February 2020 by Mr Justice Edwards .
1

On 29th June 2018, following a fifty-day trial the appellants, Kevin Hannaway and Eva Shannon, were convicted of the offence of providing assistance to an unlawful organisation contrary to s. 21A of the Offences Against the State Act 1939, as inserted. The other appellants, Sean Hannaway, David Nooney and Edward O'Brien, were convicted of the offence of membership of an unlawful organisation. Following a sentence hearing which took place on 24th July 2018, the Special Criminal Court, on 31st July 2018, sentenced Kevin Hannaway to a term of three years and nine months' imprisonment, Eva Shannon to a term of four years imprisonment, Sean Hannaway to a term of five years and six months imprisonment, David Nooney to a term of three years and nine months imprisonment, and Edward O'Brien to a term of sixteen months imprisonment. All five appellants have appealed against conviction. Kevin Hannaway, Eva Shannon and Sean Hannaway have lodged appeals against severity of sentence. In the case of David Nooney and Edward O'Brien, the Director of Public Prosecutions has sought to review the sentences imposed on grounds of undue leniency. This judgment deals with the conviction aspect only and so for that reason it is convenient to collectively refer to the five persons convicted by the Special Criminal Court as the appellants.

Factual Background
2

The trial was an extraordinarily lengthy one and the appeal hearing took three days. However, the background facts were quite straightforward. The case was primarily concerned with events that occurred on 7th and 8th August 2015 at No. 10 Riverwood Park, Castleknock, Dublin, a rental property that was vacant at the time. Information relating to No. 10, Riverwood Park came into the possession of the Special Detective Unit of An Garda Síochána who were investigating the activities of the unlawful organisation styling itself as the “Irish Republican Army” or the “IRA”. In these circumstances, Detective Superintendent (now Detective Chief Superintendent) Cliona Richardson of the Crime and Security Branch at Garda Headquarters, applied to a judge of the District Court by way of information on Oath for an authorisation pursuant to the Criminal Justice (Surveillance) Act, 2009 (“the Act of 2009”). An authorisation issued. In accordance with the authorisation, an audio surveillance device or devices, capable of recording conversations within No. 10, Riverwood Park was or were deployed by the National Surveillance Unit. The movements of persons and vehicles to and from No 10, Riverwood Park (“the premises”) were monitored over 7th and 8th August by members of the National Surveillance Unit (“NSU”), and in particular, were observed by a member of that unit referred to at trial as Detective Garda BK.

3

Over the course of the weekend, the premises were visited on two occasions by the owner, a Mr. Paul Keegan, who had agreed to a request from his letting agent to permit a person stated to be “the uncle” of the maintenance person stay over. The second such visit was at approximately 2.15 p.m. on 8th August 2015. Shortly after that visit, all of the appellants were observed leaving the premises. Having done so, Edward O'Brien was observed placing bags of rubbish brought from the premises into the boot of a vehicle linked to him, a Ford Mondeo, registered to his partner. The other four appellants left the premises together and having placed their luggage in the boot of a Ford Focus registered to David Nooney, they drove away. These four appellants were arrested at 2.25 p.m. in the car park of a McDonald's Restaurant in Blanchardstown Shopping Centre. At the time of her arrest, Eva Shannon was in possession of a book, ‘The Dirty War’ by Martin Dillon. The prosecution sought to attach some significance to this because the ‘Green Book’ or “Constitution of the IRA” appears as an appendix to the book. Whatever label is attached to the document, it deals with matters such as the procedure for holding internal inquiries, Court Martials, and the like.

4

At the heart of the prosecution case was the audio recording evidence obtained through the deployment of surveillance devices. The prosecution's case was that this unequivocally established that an internal IRA inquiry took place over 7th and 8th August 2015 at the premises the subject matter of the surveillance. Moreover, it was said to prove that the inquiry was focused on a foiled or failed IRA operation, and that three individuals were interviewed during it, i.e., Robert Day, Patrick Brennan, and Damien Metcalfe. The prosecution case was that the interviews were conducted by Kevin Hannaway, Sean Hannaway and Eva Shannon, that David Nooney had secured the premises used for the enquiry and had further facilitated the interviews, and that Edward O'Brien also had an involvement in the events of the weekend.

5

Much of the trial centred on the question of whether the audio recording of the events at No. 10 Riverwood Park were admissible in evidence or whether it should have been excluded at trial. The admissibility of the recording was challenged on a number of different grounds and the probative value of what was recorded was called into question. The audio recording has again been the primary focus of the appeal. It is the existence of this recording that differentiates this trial and this appeal from other membership cases that have come before the courts. It is, however, also the case that Detective Chief Superintendent Anthony Howard, then recently appointed Head of the Special Detective Unit, gave evidence pursuant to statute of his “belief” or opinion that Sean Hannaway, David Nooney, and Edward O'Brien were, on 8th August, 2015 members of the unlawful organisation styling itself the ‘IRA’ or the ‘Irish Republican Army’. Another element of the prosecution case was that the Special Criminal Court was urged to draw inferences from the failure on the part of David Nooney and Edward O'Brien, both charged with membership of the IRA, to answer material questions when interviewed pursuant to the provisions of s. 2 of the Offences Against the State (Amendment) Act 1998, when that provision was invoked.

Grounds of Appeal
6

These appeal proceedings are complicated somewhat by the number of appellants involved, all of whom are individually represented, and in circumstances where each has lodged a separate Notice of Appeal, relying on distinct grounds of appeal therein. It would be fair to say that there is a great degree of thematic overlap within the grounds of appeal advanced, something which the appellants themselves have recognised both in their written and oral submissions. As such, it is possible to condense and summarise the grounds of appeal into the following issues:

(i) the prosecution's reliance on belief evidence;

(ii) the refusal to disclose surveillance devices and associated items;

(iii) the admissibility of the “PB1” audio recording, and the transcript of it;

(iv) the lawfulness of the initial search, detention, and arrests of the...

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2 cases
  • DPP v Conor Metcalfe
    • Ireland
    • Court of Appeal (Ireland)
    • 18 February 2021
    ...been advanced in many other trials and on many other appeals. As pointed out recently by this Court in the case of DPP v. Hannaway & Ors [2020] IECA 38, the provision by statute for the opinion/belief evidence of an officer of An Garda Síochána not below the rank of Chief Superintendent has......
  • DPP v Metcalfe
    • Ireland
    • Court of Appeal (Ireland)
    • 1 July 2020
    ...proceeding with that application. 2 . The factual backdrop to the prosecution is the same as existed in the case of DPP v. Hannaway & Ors [2020] IECA 38, in which this Court delivered judgment on 6 th February 2020. Given the considerable detailed narrative set out in the body of that judgm......

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