DPP v Smyth
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 19 July 2018 |
| Neutral Citation | [2018] IECA 278 |
| Docket Number | Record No: 25/2018 |
| Court | Court of Appeal (Ireland) |
| Date | 19 July 2018 |
[2018] IECA 278
THE COURT OF APPEAL
Edwards J.
Birmingham P.
Edwards J.
McCarthy J.
Record No: 25/2018
Conviction – Membership of an unlawful organisation – Offences Against the State Act 1939 s. 30A – Appellant seeking to appeal against conviction – Whether the Special Criminal Court misapplied the test in The People (Director of Public Prosecutions) v AB [2015] IECA 139
Facts: The appellant, Mr Smyth, was tried in the Special Criminal Court on one count of membership of an unlawful organisation contrary to s. 21 of the Offences Against the State Act 1939. On the 1st of June 2017, after a trial lasting seven days, the appellant was convicted on the sole count on the indictment. On the 26th of June 2017, he was sentenced to three years’ imprisonment on foot of this conviction. The appellant appealed to the Court of Appeal against his conviction. He accepted that the test with respect to whether there is a need for a s. 30A warrant in any particular case before a lawful arrest can be made, is that set out in The People (Director of Public Prosecutions) v AB [2015] IECA 139. He submitted that the Special Criminal Court misapplied the test in the AB case in failing to adjudicate and consider whether it was appropriate for the Chief Superintendent to in effect ignore the requirements of s. 30A of the 1939 Act.
Held by the Court that the Special Criminal Court engaged fully with the issue raised by the defence and with the evidence relevant to that issue. The Court held that there was no basis for saying that it misapplied the test indicated in AB; the ruling delivered expressly acknowledged the AB case, thereby confirming that the trial court was aware of it.
The Court held that it would dismiss the appeal.
Appeal dismissed.
The appellant in this appeal was tried in the Special Criminal Court on one count of membership of an unlawful organisation contrary to s. 21 of the Offences Against the State Act, 1939, (‘the Act of 1939’) as amended by s. 48 of the Criminal Justice (Terrorist Offences) Act 2005. On the 1st of June 2017, after a trial lasting seven days, the appellant was convicted on the sole count on the indictment. On the 26th of June 2017, he was sentenced to three years' imprisonment on foot of this conviction.
The appellant now appeals against his conviction.
Detective Chief Superintendent Thomas Maguire, of the Special Detective Unit of An Garda Síochána, testified to the trial court that, on the afternoon of the 25th of November 2015, he convened a meeting at Monaghan Garda Station with various Garda colleagues, some of whom were attached to the Special Detective Unit and others of whom were locally based. At that meeting, Detective Chief Superintendent Maguire gave an overview to those present concerning certain confidential information in his possession in respect of the appellant and his activities as a member of the Irish Republican Army (‘IRA’), and with particular reference to the appellant's utilisation of lands close to his own home address at Aghalissabeagh, Scotstown County Monaghan, and also lands adjacent to his mother in law's house in Lenagh, Scotstown, County Monaghan. Privilege was claimed by all Garda witnesses at trial as to the source of this confidential information. Subsequent to the meeting, Detective Inspector Shay O'Leary, who was based at Monaghan Garda Station, sought and successfully obtained eleven search warrants pursuant to s. 29 of the Offences Against the State Act 1939 (the Act of 1939), as amended, at a special sitting of Monaghan District Court, presided over by Judge McLoughlin, for the purpose of searching the aforementioned lands.
Later, at around 8pm on the 25th of November 2015, a surveillance operation to be conducted by members of the Special Detective Unit was put in place in relation to the Aghalissabeagh lands, and a similar operation to be conducted by the same unit was also put in place at the Lenagh lands. Detective Chief Superintendent Maguire confirmed in cross-examination that at 8:50pm, the appellant was seen leaving the Aghalissabeagh lands and heading towards the Lenagh lands. Detective Sergeant O' Doherty of the Special Detective Unit received information via radio communication that the appellant was making his way up the laneway towards some derelict houses i.e. towards the place at which Detective Sergeant O' Doherty was stationed. Upon observing the appellant approaching the entrance of the derelict houses at around 9:30pm, Detective Sergeant O' Doherty confronted the appellant. He illuminated the appellant with his flashlight, pointed his weapon at him and shouted out ‘armed Gardaí, show me your hands’, an instruction which the appellant complied with. The appellant gave his name and address. He was carrying a flash light and a pair of gloves. The Special Criminal Court heard that, after giving the appellant the usual caution, Detective Sergeant O' Doherty informed the appellant that he was arresting him under s. 30 of the Act of 1939 on suspicion that he was a member of an unlawful organisation, namely the IRA.
At trial, Detective Sergeant O'Doherty's evidence was that he formed the suspicion on foot of which the arrest was made by reason of the confidential information communicated to him by Detective Chief Superintendent Maguire, and also on the basis of the movements and behaviour of the appellant on the night in question. Detective Sergeant O' Doherty's evidence was that when he asked the appellant where he was coming from, he said ‘Mass’, and that when asked what he was doing in that location, he said he was looking after his horses. Detective Sergeant O' Doherty formed the view that the information furnished to him by the appellant was false. Although nothing turns on it, it was accepted by the Detective Sergeant in cross-examination at the trial that horses were observed to be on the lands in the course of searches subsequently conducted, although not confined to any one particular place on the lands.
In the days following the arrest of the appellant, the lands concerned were thoroughly searched. Amongst the items found were pieces of mortar launcher, an improvised firing pin, spent shells, a timer power unit, a gun stock and barrel support, rifles, a magazine and ammunition, two AK 47's and detonators. None of the items found were connected by forensic or other evidence to the appellant. However, a square plastic container was recovered from a stone wall on one part of the lands. This item was secreted behind a loose stone and when opened contained assorted items, including four bulbs, a tube bearing black tape, two half tubes, and two tablet bottles one of which contained powder which, when analysed, was found to be an explosive substance. Detective Garda Damien Carroll, a Garda in the fingerprint section of the Garda Technical Bureau, gave evidence at trial that he conducted an analysis of a latent finger mark found on the empty tablet bottle which, when examined, was found to have been made by the right thumb of the appellant.
At his trial before the Special Criminal Court, the case against the appellant was based upon three core components. Firstly, it relied upon the belief evidence of a Chief Superintendent (Chief Superintendent Mangan). Secondly, it relied upon circumstantial evidence arising from the circumstances of the arrest, and the paraphanalia found in the follow up searches, one significant item of which, namely a tablet bottle, could be linked to the appellant by...
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Department of Justice and Equality v Gleeson
...to paragraph 18 of that judgment and to the later judgment of the Court of Appeal in People (Director of Public Prosecutions) v. Smyth (2018) IECA 278. 31 The respondent relies on a passage at paragraph 16 in the judgment of the Court of Criminal Appeal delivered by O'Donnell J. in People ......