The People at the Suit of the Directorof Public Prosecutions v RK
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 21 December 2021 |
| Neutral Citation | [2021] IECA 342 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [278/19] |
In the Matter of a Section 23 Appeal
[2021] IECA 342
The President
Edwards J.
Kennedy J.
[278/19]
[279/19]
THE COURT OF APPEAL
Exclusion of evidence – Retrials – Acquittals – Applicant seeking an order quashing the acquittals by direction of the court of trial – Whether the court of trial erred in law in excluding “compelling evidence” within the meaning of s. 23(14) of the Criminal Procedure Act 2010
Facts: The respondents, from October to December 2019, stood trial in the Special Criminal Court charged with the offence 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. On 5th December 2019, day 36 of the trial, the Special Criminal Court acceded to an application to exclude the belief evidence of a Chief Superintendent that each accused before the Court was, on the date charged on the indictment, a member of an unlawful organisation, the evidence of which was tendered pursuant to s. 3(2) of the Offences Against the State Act 1972 and, in consequence, directed verdicts of not guilty. The applicant, the Director of Public Prosecutions, pursuant to s. 23 of the Criminal Procedure Act 2010 (as amended), brought a “with prejudice” appeal against those acquittals. The Director sought from the Court of Appeal: (i) an order quashing the acquittals by direction of the court of trial; (ii) an order determining that the court of trial erred in law in excluding “compelling evidence” within the meaning of s. 23(14) of the 2010 Act; and (iii) an order directing that the respondents be retried for the offence in respect of which acquittals by direction were ordered. The notice of appeal focused on what was contended to have been an erroneous exclusion of the evidence of Detective Chief Superintendent Howard given pursuant to s. 3(2) of the Offences Against the State (Amendment) Act 1972, to the effect that he believed that each of the accused was, at the material time, a member of an unlawful organisation. It was contended that the evidence referred to constituted compelling, reliable evidence of significant probative value and as such, when taken together with all the other evidence adduced in the proceedings concerned, it was evidence upon which the court of trial could reasonably have been satisfied beyond reasonable doubt as to the guilt of the accused in respect of the offence charged.
Held by the Court that the trial court erred in deciding to exclude the evidence of the Chief Superintendent. The Court was satisfied that the Chief Superintendent’s belief evidence was compelling in principle. It seemed to the Court likely that if the evidence had not been wrongly excluded and had been weighed alongside all the other evidence in the case, the trial court would not have been prepared to convict the accused on the basis of being satisfied of their guilt beyond reasonable doubt. The Court held that had the evidence been admitted and weighed, and the court of trial concluded that it was not sufficient to persuade it of the guilt of the accused beyond reasonable doubt, it would not have been open to the prosecution to seek to invoke s. 23 of the 2010 Act. It seemed to the Court, given the level of disquiet that the members of the Special Criminal Court appeared to experience in relation to the belief evidence in the context of the case, that the accused must have entertained realistic expectations of an acquittal. Therefore, in the context of the case, it did not seem to the Court that the interests of justice would be served by requiring either respondent to be re-tried.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT of the Court delivered (electronically) on the 21 st day of December 2021 by Birmingham P.
. From October to December 2019, the respondents stood trial in the Special Criminal Court charged with the offence 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. On 5 th December 2019, day 36 of the trial, the Special Criminal Court acceded to an application to exclude the belief evidence of a Chief Superintendent that each accused before the Court was, on the date charged on the indictment, a member of an unlawful organisation, the evidence of which was tendered pursuant to s. 3(2) of the Offences Against the State Act 1972 and, in consequence, directed verdicts of not guilty.
. The Director of Public Prosecutions has, pursuant to s. 23 of the Criminal Procedure Act 2010 (as amended), brought a “with prejudice” appeal against those acquittals. The Director seeks from this Court: (i) an order quashing the acquittals by direction of the court of trial; (ii) an order determining that the court of trial erred in law in excluding “compelling evidence” within the meaning of s. 23(14) of the Criminal Procedure Act 2010; and (iii) an order directing that the respondents be retried for the offence in respect of which acquittals by direction were ordered. The notice of appeal focuses on what is contended to have been an erroneous exclusion of the evidence of Detective Chief Superintendent Howard given pursuant to s. 3(2) of the Offences Against the State ( Amendment) Act 1972, to the effect that he believed that each of the accused was, at the material time, a member of an unlawful organisation. It is contended that the evidence referred to constituted compelling, reliable evidence of significant probative value and as such, when taken together with all the other evidence adduced in the proceedings concerned, it was evidence upon which the court of trial could reasonably have been satisfied beyond reasonable doubt as to the guilt of the accused in respect of the offence charged.
. The respondents have each resisted the application brought by the Director. In addition, the Irish Human Rights and Equality Commission (“IHREC”) sought, and was granted, leave to participate in the appeal proceedings as an amicus curiae. In fact, for reasons which will become apparent, this Court has not, with all due respect, been greatly assisted by the intervention of the IHREC.
. The charges faced by the respondents arose out of the investigation into the murder of Mr. Peter Butterly, which occurred at the Huntsman Inn, Gormanston, County Meath, on 6 th March 2013. In addition to presenting other evidence, the prosecution sought to adduce evidence of the belief of Detective Chief Superintendent Howard, Head of the Special Detective Unit (“SDU”), that each of the accused before the court of trial was, on the date charged on the indictment, a member of an unlawful organisation. Initially, there was an objection to the Chief Superintendent giving evidence, and it was asserted that the prosecution “must establish that all of the materials relied on are in fact privileged.” However, Chief Superintendent Howard was in fact called to give evidence, and in the course of his evidence, he stated that it was his belief that each accused before the Court was a member of an unlawful organisation “styling itself the Irish Republican Army (otherwise known as Óglaigh na hEireann, otherwise the IRA)”, and that each was a member of that unlawful organisation within the State on 6 th March 2013.
. When giving evidence on 21 st November 2019, the Chief Superintendent said that he wished to clarify that he did not take into account any of the events leading up to the murder of Mr. Butterly or events on the day of the murder, nor did he take into account the subsequent investigation in relation to the murder of same. Similarly, he said he did not take into account the fact that both respondents were observed with, or associated with, individuals who had been convicted of a scheduled offence before the Special Criminal Court. Moreover, he stated that he did not take into account any matter discovered arising from the arrest of LM on 9 th April 2013, or any matter arising at the time of RK's arrest on 6 th March 2013. He stated that he was totally satisfied beyond a reasonable doubt as to the accuracy and reliability of the material upon which he based his belief in relation to both of the then accused.
. Prosecution counsel referred to the fact that a letter had been sent by solicitors on behalf of LM asking for all documentation and other materials, in whatever form, which in any way formed the basis of, was relevant to, or touched on his belief that LM was a member of an unlawful organisation as set out in the statement of evidence. The Chief Superintendent was asked what his attitude was to disclosing such material, and he responded as follows:
“[T]he IRA are a guerrilla army. They are based on secrecy. They engage in murder, intimidation and it's – I'm basically, I have serious concerns for the protection of life and property and I'm claiming privilege on the basis of protection of life and property. I also want to protect ongoing and future operations and obviously the security of the state, Judges, in relation to an unlawful organisation such as the IRA.”
. Prosecution counsel said to the witness that he been asked what the nature of the sources of the confidential information referred to in the statement was, and what his attitude was to that, and the witness responded:
“Again, Judges, I have serious concerns if I was to divulge the nature and content of the material upon which I base my belief, that there would be a serious issue in relation to protection of life. So, on that basis, I'm claiming privilege in relation to the...
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