The People (at the suit of the DPP) v Seán Hannaway, Edward O'Brien, David Nooney, Kevin Hannaway and Eva Shannon

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley,Mr Justice Peter Charleton
• Judgment Date: 04 May 2021
• Neutral Citation: [2021] IESC 31
• Date: 04 May 2021
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2020:000047, 000073, 000075, 000079, 000080 Special Criminal Court bill number: SCDP 8/ 2015

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Seán Hannaway, Edward O'Brien, David Nooney, Kevin Hannaway and Eva Shannon

Accused persons/Appellants

[2021] IESC 31

[2020] IESC 000

[2019] IECA 53

Clarke CJ

MacMenamin J

Charleton J

O'Malley J

Baker J

Supreme Court appeal number: S:AP:IE:2020:000047, 000073, 000075, 000079, 000080

Court of Appeal record number 2019/219

Special Criminal Court bill number: SCDP 8/ 2015

An Chúirt Uachtarach

The Supreme Court

Conviction – Membership of an unlawful organisation – Admissibility of evidence – Appellants seeking to appeal against convictions – Whether there was a breach of s. 10 of the Criminal Justice (Surveillance) Act 2009

Facts: Each of the appellants had been convicted after a trial before the Special Criminal Court in which three of them (Mr Hannaway, Mr Nooney and Mr O’Brien) were charged with the offence of membership of an unlawful organisation (the IRA) while the other two (Mr Hannaway and Ms Shannon) were charged with providing assistance to that organisation. The prosecution case was that a temporarily unoccupied rental dwelling in Castleknock, Co. Dublin was used, over the course of the 7th and 8th August 2015, for the holding of an internal IRA inquiry into a failed operation. Evidence came from the use of audio surveillance equipment that was deployed in, or in the environs of, the house in order to capture any conversation within. In deploying the equipment, the Gardaí acted on foot of an authorisation issued by the District Court under the provisions of the Criminal Justice (Surveillance) Act 2009 (as amended). It was argued by the defence that certain provisions of the Act were not properly operated and that this resulted in a breach of their rights to the extent that the evidence resulting from the surveillance was not lawfully admissible. This argument succeeded to a certain extent in both the Special Criminal Court and the Court of Appeal, with each holding that there had been a degree of non-compliance with the provisions of the Act concerned with the handling and storage of such evidence when gathered. However, it was held in each court that the evidence had been “gathered” lawfully, while the breach of the legislation related to matters that occurred subsequently. Both the trial court and the Court of Appeal considered that the legal principles that can result in the exclusion of unconstitutionally or illegally obtained evidence were not engaged in the circumstances and that, therefore, an inquiry of the type envisaged by the majority judgments in People (DPP) v J.C. [2017] 3 I.R. 417 was not required. The appellants appealed to the Supreme Court, saying that the distinction drawn between “gathering” and “handling” was not valid, given the nature of the recording and processing carried out in the case of the voice recordings. They contended that there should have been a J.C. inquiry in the circumstances. As well as disagreeing with this view, the respondent, the Director of Public Prosecutions, maintained that there was in fact no breach of the statute.

Held by the Court that the conclusion of both the trial court and the Court of Appeal that the evidence was not rendered inadmissible because the exclusionary rule had no application to illegalities that occurred after the evidence had been gathered, was an incorrect interpretation of s. 10 of the 2009 Act, insofar as it appeared to give to the Minister for Justice and Equality a role in the investigation and prosecution of criminal offences that was not intended by the legislature and would have constitutional implications. The Court reached that view on the basis of examining the statutory scheme as a whole, and in particular the provision made for disclosure to persons whose authority to receive it derives from either other sections of the Act or from the law applicable to a trial conducted in due course of law. In the circumstances, the Court concluded that there was no breach of s. 10, and that, in any event, the section has no relevance to the processes of investigation and trial of offences.

The Court held that all of the appeals would be dismissed.

Appeals dismissed.

Judgment of Mr Justice Peter Charleton delivered on Tuesday 4 May 2021

1 In the context of the analysis of O'Malley J, with which this judgment concurs, what is considered here are issues of legal context and the statutory interpretation of the Criminal Justice (Surveillance) Act 2009. That is legislation whereby police, officials of the Revenue Commissioners, Defence Forces and Garda Ombudsman Commission representatives may covertly enter and conceal devices in locations where reasonable grounds suggest that bugging may help to prevent crime or whereby evidence for the pursuit of serious crime may be gleaned for use in prosecutions. Telephone usage analysis, what mobile phone called what phone for what duration, bounced off what mast location, and was used by whom, sometimes demonstrating a credible pattern consistent with the narrative of an offence, has been a feature of some serious criminal trials. Bugging evidence had been a stranger to Irish courts over many decades but, in many other jurisdictions, such as the United States of America, had been widely used by way of wiretap and covert surveillance. Accused persons' statements against interest, admissions or plans for a crime, being admissible in exception to the rule against hearsay.

Background

2 The accused, save for the first and last named, were convicted of membership of an unlawful organisation, the self-styled Irish Republican Army, and the first and last named with assisting that unlawful organisation. That conviction was returned on 29 June 2018, after a 50-day trial before the Special Criminal Court. The date of the offences was 8 August 2015. That date was among the dates when the unlawful organisation carried out an enquiry into internal issues. The proceeding was recorded by a device planted by gardaí in a home in Castleknock, Dublin. Since the enquiry was lengthy, the recording was edited down so that only relevant highlights were put before the court of trial with a view to offering evidence that what was involved was an event promoted as part of the activities of the unlawful organisation and that the accused persons were members of it or were assisting it.

Legislation

3 The 2009 Act has been much amended but any later changes were effected mainly to include the Garda Ombudsman Commission, enabling their officers to engage in surveillance subject to the same safeguards as the Garda Síochána, the Revenue Commissioners and the Defence Forces; see the Garda Síochána (Amendment) Act 2015. Section 3 provides that members of those organisations “shall carry out surveillance only in accordance with a valid authorisation or an approval” as granted under sections 7 or 8. Surveillance is, according to s 1, “monitoring, observing, listening to or making a recording of a particular person or group of persons or their movements, activities and communications” and includes also “monitoring or making a recording of places or things”. This latter definition widens the scope of what is authorised beyond simply listening or watching. Thus, this is not simply watching the comings and goings at a building or through a gateway, against which there is no legal prohibition, and is statutorily required to be conducted “by or with the assistance of surveillance devices”. Such a device is not a camera used in a public place or closed-circuit television and nor is it apparatus designed to enhance “visual acuity or night vision”, provided that this is not also used to “make a recording of any person who, or any place or thing that, is being monitored or observed”. The definition thus fits closely with the common perception of a bugging device, one enabling hearing or vision from a distance and inside an otherwise occluded and out of sound range place. Night or vision enhancement can be used without legal interference in public places. Usually, the purpose of such a surveillance is to detect crime or keep the authorities a step or two ahead of criminal plans. Ordinarily, for practical evidence purposes, those devices must be able to make a recording. Similarly, a tracking device may be fitted, for instance to a car, under s 8 to “monitor the movements of people, vehicles or things” and here what may be envisaged is that either notes be kept but more likely a computerised record. In the view of O'Malley J, s 9 explicitly deals with the product of surveillance through the defining word “document” including a recording. This approach is correct as s 10 then expressly states the applicability of that section to documents, necessarily including those referred to in s 9. As O'Malley J analyses the obligations on the Minister, there is nothing in the facts of this case which has any bearing on this trial.

4 There is nothing to stop anyone photographing or viewing anyone in a public place and the general law is not altered by the 2009 Act which, at s 14(2) makes it clear, should this be doubted, that the legislation does not prejudice “the admissibility of information or material obtained otherwise than as a result of surveillance” and at s 2(2) that nothing “in this Act shall render unlawful any activity that would otherwise be lawful.” Where surveillance is authorised, that is evidence that a court must admit, s 14(1) providing: “Evidence obtained as a result of surveillance … may be admitted in evidence in criminal proceedings.” Of course, there is nothing to stop an official with a wonderful memory reciting what she or he has heard over the device to a court, but that would lead to potential doubts as to accuracy. Notes could be taken and consulted, as in the ordinary way contemporaneously and later consulted for the refreshing of memory, but that is not the...