DPP v James Joseph Cassidy

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 13 September 2021
• Neutral Citation: [2021] IESC 60
• Court: Supreme Court
• Docket Number: [Appeal No. 2020/100],[S.C. No. 100 of 2020]

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

James Joseph Cassidy

Appellant

[2021] IESC 60

Clarke C.J.

MacMenamin J.

O'Malley J.

Baker J.

Woulfe J.

[Appeal No. 2020/100]

THE SUPREME COURT

Conviction – Membership of an unlawful organisation – Evidence – Appellant appealing against conviction – Whether, given the breadth of the claim of privilege, the requisite independent, supportive evidence needed to be relatively strong

Facts: The appellant, Mr Cassidy, was convicted of the offence of membership of an unlawful organisation styling itself the Irish Republican Army. That offence was created by the Offences Against the State Act 1939, as amended. In the trial of the appellant, evidence was given by a chief superintendent as to his belief that the accused was a member of the unlawful organisation. Chief Superintendent Mangan stated in evidence that his belief was not based on the arrest or on anything that occurred during the detention of the appellant, but only on material relating to events prior to the arrest. He also stated that he had not read either the book of evidence or the disclosure material that had been furnished to the defence. The chief superintendent made, and maintained throughout his evidence, a very broad claim of privilege over the sources of his information. He could not, when asked directly by the trial court, eliminate the possibility that some of the evidence being relied upon by the prosecution to support his belief had in fact contributed to that belief. Accordingly, the Special Criminal Court determined that, given the breadth of the claim of privilege, the requisite independent, supportive evidence would need to be relatively strong or, as it put it, “relatively speaking, to be high on the scale”. It also determined that, in order to avoid double counting, any evidence of events prior to the arrest of the appellant should be disregarded for the purposes of deciding whether or not there was such evidence. However, having accepted the evidence of Chief Superintendent Mangan that he had not based his belief in any way on the appellant’s responses to questioning, the court considered that it was entitled to take the evidence of the prior events into account for the different purpose of determining the “materiality” of the questions put to the appellant in the s.2 interviews. Having carried out an assessment of the evidence, the court concluded that the questions asked in interview had been material and consequently drew inferences adverse to the appellant from his responses to them. It found that those inferences supported the belief of the chief superintendent, as did the circumstantial evidence, and convicted the appellant. The Court of Appeal considered that the trial court had proceeded correctly. The primary issue in the appeal to the Supreme Court was whether the analysis of the Special Criminal Court and Court of Appeal was correct, or whether, as the appellant argued, the approach taken let excluded evidence in “through the backdoor” and did entail double counting. The issue was rendered more complex by the extensive claim of privilege made by the chief superintendent, which the appellant contended had the effect that there was no “examinable reality” in cross-examination on the question of what information had been taken into account in the belief evidence.

Held by the Court that if there is a very wide claim of privilege, there will be a correspondingly greater need for strong supportive evidence that clearly did not form part of the basis for the belief. The Court held that it would remain necessary to disregard any individual piece of evidence for that purpose, if it is unclear to the court whether it was or was not the basis, or part of the basis, for the belief; this was the approach taken by the trial court in this case. The Court found that the judgment made it clear that, in view of the breadth of the privilege claim and the effect thereof on the defence ability to cross-examine, the strength of the supporting evidence had to be high on the scale. It found that standard to have been met and the Court saw no reason to disagree; in particular, the evidence about the booster tube, combined with the USB stick and the s.2 interviews, presented a clear picture of, as the court said, a linked pattern rather than a series of coincidences. In the Court’s view the court was entitled to find that the case was proved beyond reasonable doubt.

The Court held that the appeal would be dismissed.

Appeal dismissed.

Judgment of Ms. Justice Iseult O'Malley delivered the 13 ^th September, 2021

Introduction and overview

1 The appellant has been convicted of the offence of membership of an unlawful organisation styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann, otherwise the I.R.A. That offence is created by the Offences Against the State Act 1939, as amended.

2 As has been explained in many judgments of the appellate courts, it is clear from the experience of this State in dealing with secretive and violent organisations such as the IRA that direct evidence of membership will rarely be forthcoming by way of either admission by an accused person, sources within such an organisation or uninvolved civilians. The legislature has sought to deal with that situation by enacting particular evidential provisions that are applicable only to this offence.

3 The first relevant provision for the purposes of this appeal is s.3(2) of the Offences Against the State ( Amendment) Act 1972, which permits the admission, as direct evidence of membership, of the belief of a senior Garda officer. An officer not below the rank of chief superintendent (or a superintendent who has been given the necessary authorisation) may give “belief evidence” – that is, evidence that he or she believes the accused to have been, on the date particularised in the indictment, a member of a specified unlawful organisation. This provision is unique to the charge of membership – there are no other circumstances in Irish criminal law in which probative value is accorded to the belief of any witness in the guilt of the accused. While part of the justification for such a measure is the difficulty in adducing direct evidence, it is also the case that a belief held about an ongoing state of affairs (since membership is a continuing offence) by an experienced person may have more probative value than a belief in respect of a single event.

4 As a matter of practice, it is not seen as sufficient for the purposes of the section that the witness holds the requisite rank. The chief superintendent who gives belief evidence will be one of a relatively small group of officers at that rank who have the appropriate range of experience and expertise relating to unlawful organisations within the State. In some cases, the officer giving the belief evidence may have been operationally involved in the investigation giving rise to the charge or charges against the accused. In others, he or she may have had no involvement until requested to assess the intelligence available in respect of the accused, for the purpose of seeing whether or not it gives rise to a belief that would be of evidential value on a membership charge.

5 It is necessary to emphasise that it is the belief itself that constitutes evidence under the section, and not the factual grounds for the belief. Thus, belief evidence will always be admissible, and the trial court will not examine the validity of the belief by applying the administrative law concept of reasonableness, or by reference to its detailed factual or logical basis. However, the court may for a variety of reasons conclude that, in a particular case, a greater or lesser degree of weight should be attached to the belief. It is in that context that much of the debate about the impact on fair trial rights arises.

6 The jurisprudential history of this section shows a distinct evolution from a time when it was accepted that a conviction might, at least in theory, be properly grounded upon belief evidence alone (see ( People (DPP) v Ferguson unrep., Court of Criminal Appeal, 27th October 1975)) (“ Ferguson”). This theory was, however, always subject to the assessment by the trial court of the weight to be attached to the belief in the light of a variety of factors. In earlier years, the important factor here was whether there was any challenge to the belief by way of cross-examination or by a denial of membership on oath. The constitutionality of the provision was upheld by the High Court in O'Leary v Attorney General [1993] 1 I.R. 102, where Costello J. pointed out that it could not be construed as meaning that the court must convict in the absence of exculpatory evidence – the question was always whether the evidence established guilt beyond reasonable doubt.

7 It appears that, quite apart from the question of whether a challenge had been mounted to the belief, at least some formations of the Special Criminal Court were disinclined, as a matter of practice, to convict on the basis of a belief in the absence of corroborative evidence. However, the practice does not appear to have been uniform. In ( People (DPP) v. Gannon unrep., Court of Criminal Appeal, 2nd April 2003) (“ Gannon”) the Court of Criminal Appeal upheld a conviction where the trial court had found the evidence of belief to be sufficiently strong on its own. This case is now mainly noteworthy for the obiter comments in which the Court approved of a ruling by the trial court that it could not rely upon, as corroborative evidence, matters which might have formed a fundamental part of the basis for the belief.

8 Conversely, in People (DPP) v. Binéad [2007] 1 I.R. 374 the Court of Criminal Appeal acknowledged that, in ruling that it would not convict without supportive or corroborative evidence, the trial court had clearly...