DPP v Palmer

JudgeEdwards J.,Birmingham J.
Judgment Date20 July 2015
Neutral Citation[2015] IECA 153
Date20 July 2015
CourtCourt of Appeal (Ireland)
Docket NumberCCA Ref: [2013/30] Bill No. SCC 12/2011
The Director of Public Prosecutions
Derek Palmer

[2015] IECA 153

CCA Ref: [2013/30]

Bill No. SCC 12/2011


Criminal Law - s. 21 of the Offences Against the State Act 1939, as amended by s. 48 of the Criminal Justice (Terrorist Offences) Act 2005 – Appeal against Conviction

Facts: The appellant was sentenced to six and a half years imprisonment with one year suspended for 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. He appealed against his conviction. The appellant contended that that the Special Criminal Court should not have admitted the belief evidence of the Garda Chief Superintendent because the Director of Public Prosecutions had not been able to assess the reliability of that evidence. Secondly, the appellant contended that the court should not have given weight to that evidence when the officer refused to give any basis for his belief. Lastly, the trial Court erred in determining that the appellant refused to answer questions and for drawing inferences from that.

Held by President Ryan P: The Superintendent claimed privilege at the trial and submitted that his belief was based on confidential information that was made available to him. The Special Criminal Court held that it would not proceed on the evidence of the Chief Superintendent”s belief alone. The court required independent corroboration, which it found in the evidence of the accused”s failure to answer questions within the meaning of s. 2 of the 1998 Act. Furthermore, the Director”s functions in regard to the prosecution did not include consideration of the confidential material on which the Chief Superintendent”s belief was based. The President accepted the Director”s submissions on this issue and rejected this ground of appeal. The Special Criminal Court was satisfied to draw the inference that the appellant was a member of the IRA from his failure to answer questions. The President was of the view that the Special Criminal Court considered the questioning of the accused carefully and arrived at a conclusion that was unchallengeable on appeal. The court found no basis on which it would be entitled to interfere with the judgement of the Special Criminal Court on this matter. The court dismissed the appeal against conviction.

JUDGMENT of the Court delivered by the President on 20th July 2015

The appellant and another man were tried in 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. 48 of the Criminal Justice (Terrorist Offences) Act 2005. The particulars of the offence alleged that each man was, on 14th of July 2011, within the State and a member of an unlawful organisation, to wit, an organisation styling itself the Irish Republican Army, otherwise known as Oglaigh na hÉireann, otherwise known as the IRA.


On 14th December 2012, the appellant was found guilty, as was his co-accused, Mr. Clarke. He was sentenced to 6 1/2 years imprisonment with one year suspended. He now appeals against his conviction, and if he is unsuccessful in that, against the sentence imposed on the ground of severity.


Counsel for the appellant distilled the grounds of appeal down to three at the hearing before this Court. First, it is contended that the belief evidence of the Garda Chief Superintendent should not have been admitted by the Special Criminal Court because the Director of Public Prosecutions had not been able to assess the reliability of that evidence. Secondly, the trial Court should not have accorded weight to that evidence when the officer refused to give any information as to the basis of his belief. Thirdly, the appellant submits that the trial Court erred in determining that the appellant had refused to answer questions and in drawing inferences from such erroneous determination.

The Crime and the Investigation

On 14th July 2011, Garda Michael McCabe was travelling on the M1 Motorway when he noticed two vehicles travelling together in convoy. He noticed that there were ten men in all, five in each vehicle, and his suspicions were aroused by these observations. He followed the cars for a short distance and radioed into Command and Control and reported what he had seen. Arising out of this, additional Garda units were dispatched to the Balbriggan area. At about the same time, reports came in from one Ms. Lena Whitehouse, stating that there was activity outside the house of 65, Hampton Green, Balbriggan, and that some men outside were acting suspiciously and that they were in two vehicles. Ms. Whitehouse said in evidence that ‘there was cars there, there were men came to the house, they were covered up like in balaclavas, hoods. There were seven or eight people’.


Mr. Paul Doyle lives at 12, Castleland Court in Balbriggan and was living there on 14th July 2011 with his girlfriend. At about 9.30pm, he went out to get something from the car and saw two men who were calling to him from 400 or 500 metres away. He noticed two car loads full of men but he did not see their faces. He ran back straight into the apartment and exited through a window out the back. Mr. Doyle had Court appearances in July 2011 for possession and sale and supply of drugs.


Ms. Shauna Baxter is Mr. Paul Doyle's girlfriend and lives at 12, Castleland Court in Balbriggan. On 14th July 2011, she was at this address with Paul Doyle and her daughter watching TV. At some point, Paul left to get something out of the car and ran back in through the house and out the back window. A short time later, a few people called to the house. They informed her that they did not want to harm her: they just wanted to talk to Paul. She only spoke with one individual but she could not describe any of them. She then went and grabbed her daughter and left.


Shortly thereafter, some members of An Garda Síochána heard over the Garda airwaves that there was activity near the home of a Mr. Doyle at Castleland Court in Balbriggan, and they made their way to that location. When Gardaí arrived, they saw two cars trying to leave that particular housing estate. They stopped the vehicles; there were five men in each.


It was stated in evidence that Mr. Palmer, the appellant, was the driver of one of the vehicles and Mr. Clarke was the passenger in the same vehicle. When the appellant turned off the engine and got out of the vehicle, he gave his Driving License to Gardaí. He was asked what he was doing in the Castleland Court, Balbriggan area and the appellant replied: ‘I was on a bit of business’.


Other Gardaí arrived to assist and a search of the area ensued. The appellant was informed of a search of the vehicle under s. 30 of the Offences Against the State Act. Once the search was conducted, all the passengers of the vehicle moved to the wall where they remained. Various items were recovered from the vehicles as well as from the nearby area, including balaclavas, gloves and a pickaxe handle, and down a laneway in the locality, a copy of “Saoirse Nua” magazine was found and, it was alleged, a picture of the accused attending a Republican funeral.


Both men were arrested on suspicion of having committing a scheduled offence, namely, membership of an unlawful organisation, namely, the Irish Republican Army. Subsequent to the arrest, a number of interviews took place during which s. 2 of the Offences Against the State (Amendment) Act 1998, and s. 18, s.19 and s.19A, respectively, of the Criminal Justice Act 1984 (as amended) were all variously invoked. Both men denied membership of an unlawful organisation and the appellant's responses to questions put to him in the interviews are examined in detail below.

The Trial

During the course of their detention, the defendants were interviewed on a number of occasions. Section 2 of the Offences Against the State Act 1998 was invoked in some of those interviews. It was indicated that the prosecution would be relying on those interviews. The provisions of s. 2 are as follows:-

‘2. Membership of an unlawful organisation: inferences that may be drawn

(1) Where in any proceedings against a person for an offence under section 21 of the Act of 1939 evidence is given that the accused at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, failed to answer any question material to the investigation of the offence, then the court [ in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 ] or whether there is a case to answer and the court (or subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but [ a person shall not be convicted of the offence solely or mainly on an inference drawn from such a failure ].’

The Court, in its judgment, summarised as follows:-

‘Mr. Palmer was also interviewed a number of times. In the course of the first and second interviews he was interviewed under the normal caution. And he replied to questions asked, among his replies were strong denials of membership of the IRA or engagement in any of its activities. In the third interview, section 2 was invoked and again Mr Palmer answered a large number of questions, which included denials in respect of membership of the IRA or involvement in any of its activities. He said that he did remember the...

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4 cases
  • DPP v Flohr
    • Ireland
    • Court of Appeal (Ireland)
    • 12 March 2020
    ... ... As to the suggestion that the prosecution should be directed to review the material in the possession of the Gardaí, counsel accepted that there was direct authority against him on that point, the case of DPP V. Palmer [2015] IECA 155 , but argued that that case had been wrongly decided. The Special Criminal Court regarded the suggestion of convening a differently-constituted version of the court to consider the issue of privilege as novel. The trial court rejected the application not because it was novel, but ... ...
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