DPP v Maguire
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 23 April 2018 |
| Neutral Citation | [2018] IECA 107 |
| Docket Number | Record No: 162/2006 |
| Court | Court of Appeal (Ireland) |
| Date | 23 April 2018 |
[2018] IECA 107
THE COURT OF APPEAL
Edwards J.
Mahon J.
Edwards J.
Hedigan J.
Record No: 162/2006
Conviction – Membership of an unlawful organisation – Evidence – Appellant seeking to appeal against conviction – Whether trial judge erred in fact or/and in law in accepting evidence based on confidential information received
Facts: The appellant, Mr Maguire, was charged before the Special Criminal Court with the offence of membership of an unlawful organisation, to wit the Irish Republican Army (the IRA) on the 23rd of August 2005, contrary to s. 20(1) of the Offences Against the State Act 1939. The appellant’s trial commenced on the 4th of July 2006 and concluded on the 17th of July 2006. The Special Criminal Court delivered its verdict on the 25th of July 2006, and convicted the appellant. He was sentenced on the same date to a period of five years imprisonment, with the final year suspended on conditions. The appellant served the said sentence. The appellant appealed to the Court of Appeal against his conviction on the grounds that the trial judges: 1) erred in fact or/and in law in accepting the evidence offered by Chief Superintendent Kelly, which was based on confidential information received, and formed the basis of a belief that the appellant was a member of an unlawful organisation styling itself the IRA; 2) erred in fact or/and in law in failing to explain the weight, if any, that they attached to the evidence offered by Chief Superintendent Kelly of his belief that the appellant was a member of an unlawful organisation styling itself the IRA; 3) failed to explain in their judgment the process in which they engaged whereby they decided to rely upon the belief of the Chief Superintendent to convict the appellant in circumstances where the Chief Superintendent claimed privilege over the origins of his confidential information; 4) erred in deciding to rely upon the evidence of belief offered by the Chief Superintendent without explaining the weight they attached to the evidence of the Chief Superintendent, in view of the claim to privilege made and attached to the evidence, which was used to convict the appellant; 5) erred in fact and/or in law in failing to inquire adequately or at all into the origins of the confidential information relied upon by Chief Superintendent Kelly to base his belief that the appellant was a member of an unlawful organisation; 6) erred in law or in fact and/or in a mixture of law and fact in drawing adverse inferences, pursuant to s. 2 of the Offences Against the State Act 1998, from the manner in which the appellant answered and/or refused and/or failed to answer questions material to membership of an unlawful organisation; 7) erred in law and in fact and/or a mixture of both law and fact in failing to address in their judgment of the 25th of July 2006 submissions of counsel for the appellant in relation to the fact that the prosecution case was closed without proving that the Offences Against the State Act continued to have effect up to and including July of 2006; 8) erred in law in failing to have any or any sufficient regard for the decisions of the European Court of Human Rights in the cases of Kostovski v Netherlands (1990) 12 EHRR 434, Doorson v Netherlands (1996) 22 EHRR 330 and Vanmechelen.
Held by the Court that the appellant’s conviction was safe and that his trial was satisfactory. The Court would not uphold any of the appellant’s eight grounds of appeal.
The Court held that it would dismiss the appeal against conviction.
Appeal dismissed.
The appellant was charged before the Special Criminal Court with the offence of membership of an unlawful organisation, to wit the Irish Republican Army (‘the IRA’) on the 23rd of August 2005, contrary to s.20(1) of the Offences Against the State Act, 1939 (the ‘Act of 1939’).
The appellant's trial commenced on the 4th of July 2006 and concluded on the 17th of July 2006. The Special Criminal Court delivered its verdict on the 25th of July 2006, and convicted the appellant. He was sentenced on the same date to a period of five years imprisonment, with the final year suspended on conditions. The appellant has served the said sentence.
The appellant now appeals against his conviction.
The Special Criminal Court heard evidence from Detective Chief Superintendent Philip Kelly of his belief that the appellant was, on the relevant date i.e. the 23th of August 2005, and within the State, a member of an unlawful organisation, styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann, also known as the IRA. This evidence was offered pursuant to s.3 of the Offences against the State (Amendment) Act 1972 (the ‘Act of 1972’).
The court heard that Detective Chief Superintendent Kelly had been a member of An Garda Síochána for thirty-four years, twenty-eight of which were spent investigating subversive or terrorist crime. His duties included the ‘assessment of intelligence in relation to subversive crime’. His belief was based on confidential and privileged information he had received prior to the 23rd of August 2005. He did not base his belief on any information he obtained during the appellant's detention.
In relation to the evidence on which his opinion was based, Detective Chief Superintendent Kelly gave the following evidence:
‘A. I base my opinion, my lord, on confidential information available to me, in general terms, in general.
Q. Does that come from garda sources, or informant sources?
A. It comes from both, my lord.
Q. And claiming privileges, what interests are you protecting?
A. I am claiming privilege on it, my lord, in protecting the life of persons, the lives of persons involved in the security of the State, my lord. It would damage ongoing investigations into subversive activity within the State …’
7. Chief Superintendent Kelly was cross examined by the defence in relation to his claim of privilege. He told the court:
‘I formed my opinion, my lord, over a period of time…
During that period, my lord, I would have looked at reports and files concerning the accused, Colm Maguire.
Q. Is your belief based upon, as it were documentary sources such as reports, files and undocumented information?
A. It is based, my lord, on documented information and some, possibly undocumented as well, my lord. That is not available to me.
…
Q. And did this information come from persons who were not members of An Garda Siochana?
A. That would be correct, my lord, yes.
Q. Did you speak to any of those persons?
A. No my lord no.
Q. Do you know their identities?
A. I do, my lord, yes.
Q. Do you know whether some or all or any of them have criminal convictions?
A. My lord, no person that I know that supplied information has a criminal
conviction, my lord.
…
Q. The information that you are claiming privilege over, can you tell me about the, the number of pages of reports, the volume of material that you have considered at some time in the past?
A. The volume of information, my lord, it would be quite, quite large, my lord.
…
Q. Now, presumably most of these reports and material you have regard to relate to something like that; activities, associations or conduct of Mr Maguire, would that be fair to say?
A. Not necessarily, my lord, but where it would I would still be very reluctant to, I would be reluctant to disclose, my lord, for obviously if I disclose names or associations in confidential information given to me it would endanger life.
Q. And what I want to suggest to you that you are bypassing a statutory provision of the Act which allows membership to be proved by such matters by coming in here and giving second-hand, hearsay, privileged evidence, that you are asking the court to convict Mr Maguire?
A. As I say, my lord, information available to me, on the most part, didn't – it wasn't about associations or other people.
Q. Okay. For the most part it wasn't – just repeat that?
A. Wasn't about associations as you put it there.
Q. Conduct?
A. I suppose in the broadest sense, my lord, conduct.
Q. Well, are you talking about – you are not – hardly – talking about writings or incriminating documents are you?
A. No, my lord.’
The court also heard evidence that on the 23rd of August 2005, a Special Detective Unit (SDU) of An Garda Síochána was carrying out an investigation into the activities of the IRA in Dublin and in Limerick, and as part of that investigation were engaged in a surveillance operation in and around Jurys Inn Hotel at Christchurch in Dublin City. Mr Maguire was a person of interest to the Gardaí at the time and the court heard evidence that members of the surveillance team had been tasked ‘to enter the Jury's Inn Hotel in Christchurch and try and locate Colm Maguire and observe his movements within the hotel’.
The court further heard that at 1.50 pm on that day the appellant was observed by two Gardaí in the café area of Jurys Inn at Christchurch. He was accompanied by a man wearing a plaster cast on one arm, who was later established to be a Mr Patrick Kelly. Twenty minutes later, at 2.10 pm on that day, Mr Maguire left Jurys Inn, leaving behind Mr Kelly. However, he returned a short time later accompanied by another man, who was later established to be a Mr Alan Ryan from Limerick. The appellant and Mr Ryan joined Mr Kelly in the hotel.
At 2.20 pm the appellant and Mr Kelly were observed leaving Jurys Inn Hotel together. On this occasion Mr Ryan remained at the hotel. The appellant and Mr Kelly were observed to proceeding to a local laneway nearby, known as Back...
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Director of Public Prosecutions v Smith
...and in support of that the sentences handed down in the cases of cases of The People (Director of Public Prosecutions) v. Maguire [2018] IECA 107; The People (Director of Public Prosecutions) v. Connolly [2018] 3 I.R. 753; The People (Director of Public Prosecutions) v. Weldon [2018] IECA 1......