Redmond -v- Ireland & Anor, [2009] IEHC 201 (2009)

Docket Number:2006 5362 P
Party Name:Redmond, Ireland & Anor
Judge:McMahon J.
 
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THE HIGH COURT2006 5362 P

BETWEEN

THOMAS REDMONDPLAINTIFFAND

IRELAND AND THE ATTORNEY GENERAL DEFENDANTJUDGMENT of Mr. Justice McMahon delivered on the 30th day of April, 2009

Introduction

In a plenary summons issued by the plaintiff in 2006, the plaintiff seeks declarations that s. 3(2) of the Offences Against the State (Amendment) Act 1972, ("the Act of 1972") is unconstitutional and incompatible with the State's obligations under the European Convention on Human Rights ("the Convention") and also seeks such further or ancillary declaratory or other relief that the court deems appropriate as well as damages. It was agreed that the claim for damages and other ancillary orders would be postponed pending the court's decision on the substantive issue.

Facts and Background

On the 22nd April, 2002, the plaintiff, Thomas Redmond, was convicted by the Special Criminal Court of the offence of membership of an unlawful organisation contrary to s. 21 of the Offences Against the State Act 1939 as amended by s. 2 of the Criminal Law Act 1976. On the 24th February, 2004, the Court of Criminal Appeal refused the plaintiff leave to appeal against his conviction. On the 8th July, 2004, the Court of Criminal Appeal refused the plaintiff's application for a certificate for leave to appeal to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924. The plaintiff was sentenced to 4 years imprisonment.

At the plaintiff's trial, in accordance with the procedures provided for by s. 3(2) of the Act of 1972, Chief Superintendent Murphy stated that he believed that the plaintiff was a member of an unlawful organisation contrary to s. 21 of the Offences Against the State Act 1939, as amended. The Chief Superintendent refused to disclose the factual basis for this bare assertion on the grounds that all of the facts and material underlying the belief were confidential and privileged.

The Legislation

Section 21 of the Offences against the State Act 1939, as amended ("the Act of 1939") provides as follows:-

"(1) It shall not be lawful for any person to be a member of an unlawful organisation.

(2) Every person who is a member of an unlawful organisation in contravention of this section shall be guilty of an offence under this section...

(3) It shall be a good defence for a person charged with the offence under this section of being a member of an unlawful organisation, to show - (a) that he did not know that such organisation was an unlawful organisation, or

(b) that, as soon as reasonably possible after he became aware of the real nature of such organisation or after the making of a suppression order in relation to such organisation, he ceased to be a member thereof and dissociated himself therefrom…." Section 3(2) of the Offences Against the State (Amendment) Act 1972 ("The Act of 1972") provides as follows:-

"Where an officer of the Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member."

The plaintiff claims that s. 3(2) of the Act of 1972 is contrary to the provisions of the Constitution of Ireland and in particular Articles 38 and 40 thereof and article 6 of the European Convention on Human Rights ("the Convention") as given effect in Ireland by the European Convention on Human Rights Act 2003. The plaintiff also argues that his conviction under s. 21 on the basis of the belief evidence of the Chief Superintendent is unsafe and unsatisfactory and should be set aside.

Summary of the Plaintiff's Legal Arguments

In summary, the plaintiff argues that s. 3(2) of the Act of 1972 and the procedures provided for by s. 3(2) of the Act of 1972 violate the constitutional and convention rights of the accused, in particular, the following:-

(i) the right to be informed of the substance of the allegations of membership and evidence against him;

(ii) the right to test the evidence against him and cross-examine his accusers;

(iii) right to give effective rebutting evidence; and

(iv) the right to a fair trial by according a presumptive status to the Chief Superintendent's evidence.

Moreover, insofar as the defence relies on "informer privilege" as a ground for its refusal to disclose material, the plaintiff contends that the rules of disclosure and privilege enunciated by the Supreme Court in D.P.P. v Special Criminal Court [1999] 1 I.R. 60, do not apply to a situation where the Chief Superintendent relies on information in coming to a belief and then refuses to disclose to the defence the very material on which he relied.

Finally, the plaintiff contends that proportionality has no place in due process issues and that if s. 3(2) of the Offences Against the State (Amendment) Act 1972 breaches the constitutional guarantee of a fair criminal trial, that is the end of the inquiry. Without prejudice to that line of argument, the plaintiff further submits that if the principle of proportionality does apply, the burden and onus of proof is on the party who asserts that the curtailment of the right is proportionate. When considering whether a law "impairs the right as little as possible", administrative convenience is not a legitimate consideration, according to the plaintiff.

Summary of the Defendants' Submissions

The defendants submit that s. 3(2) of the Offences Against the State (Amendment) Act 1972 is consistent with the constitution and has been so held in a number of significant decisions of both the High Court and the Supreme Court (it relies in particular on O'Leary v. the Attorney General [1993] 1 I.R. 102; The People (D.P.P.) v. Kelly [2006] 3 I.R. 115 and a significant number of decisions of the Court of Criminal Appeal in particular The People (D.P.P.) v. Binéad [2007] 1 I.R. 374). Furthermore, like all Acts of the Oireachtas, s. 3(2) of the Act of 1972 enjoys the benefit of the presumption of constitutionality.

With regard to the European Convention on Human Rights, the State does not accept that the plaintiff has standing to invoke the provisions of the European Convention on Human Rights Act 2003 in order to seek a declaration of incompatibility in relation to s. 3(2) of the Act of 1972. In any event, and without prejudice to the standing of the plaintiff, s. 3(2) does not conflict with article 6 of the European Convention on Human Rights and is not incompatible with it, as had been held in The People (D.P.P.) v. Kelly [2006] 3 I.R. 115 and The People (D.P.P.) v. Binéad [2007] 1 I.R. 374.

Finally, the defendants submit that the court has no jurisdiction to entertain a claim to set aside the plaintiff's conviction and that in accordance with s. 29 of the Courts of Justice Act 1924, as amended, the plaintiff's conviction is final, subject only to the provisions of the Criminal Justice Act 1993. Even if the plaintiff's claim to substantive relief were successful, that would not result in the setting aside of his conviction. Likewise, the State contends that there is no basis in law or in fact for any award of damages to the plaintiff.

The Proceedings Before the Special Criminal Court and the Court of Criminal Appeal

The hearing before the Special Criminal Court

The hearing before the Special Criminal Court took place over thirteen hearing days, commencing on the 5th March, 2002. The court heard a considerable volume of evidence, as well as much legal argument, before hearing the evidence of Chief Superintendent Murphy pursuant to s. 3(2) that he believed that the plaintiff was a member of an illegal organisation. His evidence in chief was brief, but he was subjected to cross-examination at some length. Most of that cross-examination related to issues unconnected with any issue of privilege. In fact, privilege is referred to only in the most passing manner. No challenge to the privilege asserted by Chief Superintendent Murphy was made by the plaintiff, less still an assertion made that such a claim would cause an injustice to the plaintiff. The Chief Superintendent's belief was challenged on other grounds unrelated to issues of privilege, none of which, individually or collectively could persuade the Special Criminal Court or the Court of Criminal Appeal at the end of the day.

The plaintiff did not give evidence at the trial nor was any other evidence called on his behalf. In addition to the Chief Superintendent's bare and unsubstantiated belief, the prosecution also led forensic evidence arising from the alleged fruits of searches of premises.

Since the Chief Superintendent did not disclose the facts and material underlying his bare belief to either the plaintiff or the Special Criminal Court, the Special Criminal Court held that its function under the procedures provided for by s. 3(2) of the Act of 1972 was to assess the truthfulness and honesty of the Chief Superintendent and to satisfy itself that the Chief Superintendent was a "credible person and worthy of belief." The Court of Criminal Appeal endorsed the Special Criminal Court's approach to the Chief Superintendent's evidence as a proper discharge of the trial court's function under the procedures provided for by s. 3(2) of the Act of 1972.

In his closing submission, counsel for the plaintiff complained that he had not the opportunity "to test by examination" the evidence of Chief Superintendent Murphy. This complaint was strongly put in the following language:-

"In the present case I cannot cross-examine, because he [i.e. the Chief Superintendent] says that the information is from a privileged source. If it is privileged, it is privileged and I cannot cross-examine, so your Lordships cannot examine the basis for his opinion and I cannot. Your Lordships are thereby disadvantaged. But I have been deprived of my constitutional right to test by examination the evidence offered by or on behalf of my accuser."

The...

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