Redmond v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 17 December 2015
• Neutral Citation: [2015] IESC 98
• Court: Supreme Court
• Docket Number: [S.C. No. 298 of 2009],[Appeal No: 298/2009]
• Date: 17 December 2015

Denham C.J.

Hardiman J.

McKechnie J.

MacMenamin J.

Charleton J.

Between/

THOMAS REDMOND

Plaintiff/Appellant

and

IRELAND AND THE ATTORNEY GENERAL

Defendant/Respondent

[2015] IESC 98

Hardiman J.

[Appeal No: 298/2009]

THE SUPREME COURT

Constitutional & administrative law - Offences against the State – Evidence – S 3(2) Offences Against the State (Amendment) Act 1972

Facts: The appellant's challenge to his conviction of membership of the IRA had been dismissed by the High Court, the Court finding that s 3(2) of the Offences Against the State (Amendment) Act 1972 was constitutional. The appellant now sought to bring the matter before the Supreme Court.

Held by Hardiman J, Denham CJ, MacMenamin J and McKechnie J concurring that the appeal would be dismissed. Notwithstanding the serious diminution of the rights of the accused to challenge the evidence of a Chief Superintendent's opinion, Hardiman J stated that it remained the case that a Special Criminal Court could in theory convict on the basis of belief evidence alone. However, a constitutional reading of s 3(2) required the belief evidence in question had to be supported by other independent evidence which implicated the accused.

Charleton J issued a dissenting judgment.

Judgment of Mr. Justice Hardiman delivered the 17th December, 2015.

1 This is an appeal from the judgment of the High Court (McMahon J.) which dismissed the plaintiff's claim for a declaration that s.3(2) of the Offences Against the State (Amendment) Act 1972 is inconsistent with the provisions of the Constitution.

2 Section 3(2) of the Act of 1972 renders admissible in evidence the belief of a Chief Superintendent of the gardaí that a person accused of the criminal offence of membership of the Irish Republican Army is in fact a member of that organisation.

3 The organisation itself is proscribed, as an unlawful organisation, following a determination by the government under s.19 of the Offences Against the State Act 1939. By s.21 of that Act it is a criminal offence for a person to be a member of an unlawful organisation.

4 I gratefully accept the statement of the facts of this case set out at paras. 4 – 9 of the judgment of Mr. Justice Charleton.

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5 I have no doubt that the provisions of s.3(2) represent a very serious diminution in the protections ordinarily afforded to an accused person by the law of evidence. On the face of it, it merely makes the opinion of the Chief Superintendent admissible in evidence. In reality, however, its effect is far greater. That effect cannot be better stated than it was by Fennelly J. in DPP v. Kelly [2006] 3IR 115. Fennelly J. said, at p.135:

'The real problem is that, where privilege is claimed, as it inevitably is, the defendant does not know the basis of that belief. He does not know the names of the informants or the substance of the allegations of membership. Without any knowledge of these matters, the accused is necessarily powerless to challenge them. Informants may be mistaken, misinformed, inaccurate or, in the worse case, malicious. None of this can be tested.' (Emphasis added)

6 I wish specifically to endorse this statement of the position brought about at a criminal trial before the Special Criminal Court where s.3(2) applies. I believe it epitomises the view of every practitioner with actual experience of defending persons charged with the offence of membership. It is obvious that this puts a person accused of this offence in a much less protected position than a person charged with any other offence and exposes to a very real risk of conviction, though innocent. This will happen if a Chief Superintendent, though subjectively honest, has been deceived by 'mistaken, misinformed, inaccurate or... malicious' informants. There is recent evidence that such things can occur, set out in the Report of the Morris Tribunal, in relation to the 'manipulation' of a Superintendent, by a member of lower rank, to issue a search warrant without proper cause.

At para. 6.22 of Mr. Justice Morris's 'Report of the Tribunal of Inquiry', set up pursuant to the 'Tribunal of Inquiry (Evidence) Acts 1921 – 2002, into certain gardaí in the Donegal Division', in a module which deals with 'the arrest and detention of seven persons at Burnfoot Co. Donegal on the 23 ^rd May 1998', and the investigation relating to the same Mr. Justice Morris reports as follows:

'The Tribunal is satisfied that in many cases the person who issued the warrant was the person who was involved in the investigation of this offence. This cannot instil any confidence in the independence of the decision made to issue the warrant. In the Ardara case, the Superintendent who was close to the investigation in Ardara was manipulated by Detective Sergeant White. The shocking circumstances as to the issue of the warrants for Burnfoot are detailed in Chapter III of this Report. The danger exists that a warrant would be issued automatically and without proper investigation of the matter by the Superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a s.29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself'.

(Emphasis added)

If a superintendent can be 'manipulated' in relation to a professional function which was reserved to him under the law as it stood, then it seems clear that little comfort can be taken in the high rank of the giver of belief evidence under s.3(2). He too might be 'manipulated' by the giver of 'mistaken, misinformed, inaccurate or malicious information', from within the Force or from outside it.

7 It must also be said that the cross-examination of a Chief Superintendent giving evidence pursuant to s.3(2)is fraught with danger because it will almost invariably open the door to the tendering by an adept and experienced witness, of prejudicial material without any notice to the defence. See the use made of undisclosed material in a slightly different context in the membership case of DPP v. Cull [1980] 2 Frewen 36.

8 In the present case the learned High Court judge said of s.3(2) Evidence:

'Its frailty is well highlighted by the defence in this case: the material on which the Chief Superintendent bases his belief is "hidden from the accused and his legal advisers". Insofar as informers are involved, there is no opportunity offered to the accused to test their motives, their history, their integrity or what private agendas they may have. They are shadows or "ghosts" as counsel for the defence describes them, with whom the accused cannot engage. To that extent the accused is certainly placed at a disadvantage and "has to engage in the normal adversarial process, labouring under a handicap".'

(Emphasis added)

The learned trial judge however continued:

'Nevertheless, when such evidence is admitted the weight given to this evidence, alone or combined with other evidence, is a matter for the trial court. In assessing the weight, in deciding how this piece of untested evidence feeds into the trial court's decision, the Court will, no doubt, bear in mind the unusual nature of the evidence and all the weaknesses that it has "as evidence being unavailable to, and untested and unchallenged by, the defence". Many judges, for these reasons, might well deem such "bare" opinion evidence insufficient to convict and may, if that is the only evidence before the Court, say that the State has failed to prove its case beyond reasonable doubt. That is what happened in DPP v. Binéad [2007] 1 I.R. 347'.

9 The learned trial judge characterised what happened in Binéad as follows:

'By ruling that it would not convict without supportive or collaborative evidence of the belief, the trial court clearly recognised the disadvantage which flows from and accrues to the defence in a trial, from the admission such belief evidence with an accompanying claim to privilege which may limit, in a particular case, the ability to test fully by cross-examination the underlying material facts leading to that belief'.

It is perfectly true that in recent years certain formations of the Special Criminal Court have declined to convict without corroboration. But there is no rule of law, statutory or otherwise, to such effect. A conviction can take place without any corroborating evidence, and has in fact done so on very many occasions. In the present case the learned trial judge said:

'I am not willing to say, however, that it [opinion evidence admissible by virtue of s.3(2)] could never be sufficient'.

10 It is also important to bear in mind that, as Mr. Justice Fennelly said in the passage quoted above, privilege as to the basis of the Chief Superintendent's belief will ' inevitably' be claimed and the claim will inevitably be acceded to.

It is also sometimes said, and is said in the judgment of Mr. Justice Charleton in the present case, that the accused can cross-examine the Chief Superintendent though he concedes that this is 'perhaps a risky tactic in many cases'. He also said, quite correctly, that:

'... the Court [that is, the Special Criminal Court that tried the plaintiff] confirms that it paid very careful attention to the demeanour and body language of the Chief Superintendent and was satisfied that he was stating his honest opinion'.

One very much hopes that the opinion of any Chief Superintendent will always be honest in the sense that it is sincerely believed by him on the basis of the information which he has and which he will not disclose. This fact of his subjective honesty is of is absolutely no comfort to a defendant and does not in any way...