The People (Director of Public Prosecutions) v Banks

• Jurisdiction: Ireland
• Judgment Date: 10 February 2022
• Docket Number: [S.C. No. 33 of 2020]
• Court: Supreme Court

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

Prosecutor

and

Vincent Banks,

Defendant

[2022] IESC 7

[S.C. No. 33 of 2020]

Supreme Court

Criminal law — Arrest — Offences against State — Membership of unlawful organisation — Lawfulness of arrest — Prior arrest on suspicion of offence of membership of unlawful organisation — Whether subsequent arrest in connection with offence to which prior detention related — Whether District Court warrant required for subsequent arrest — Offences against the State Act 1939 (No. 13), s. 30A — Offences against the State (Amendment) Act 1998 (No. 39), s. 11 — Criminal Justice (Amendment) Act 2009 (No. 32), s. 21(2).

Criminal law — Evidence — Offences against State — Membership of unlawful organisation — Belief evidence of chief superintendent — Claim of privilege over basis for belief — Effect on ability to cross-examine — Requirement for independent supporting evidence — Drawing of inferences — Probative value of evidence — Whether sufficient supporting evidence to support belief evidence — Offences against the State (Amendment) Act 1972 (No. 26), s. 3 — Offences against the State (Amendment) Act 1998 (No. 39), s. 2.

Section 30 of the Offences against the State Act 1939 provides, inter alia, for the arrest and detention of any person suspected of having committed or being about to commit or having been concerned in the commission of an offence under any section of the Act.

Section 30A of the 1939 Act, as amended, provides, inter alia:

“(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 30 of this Act and is released without any charge having been made against him, he shall not—

• “(a) be arrested again in connection with the offence to which the detention related, or

• “(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Síochána by whom he was arrested, suspected, or ought reasonably to have suspected, him of having committed,

except under the authority of a warrant issued by a judge of the District Court …”

Section 21 of the 1939 Act makes membership of an unlawful organisation a criminal offence. Section 3(2) of the Offences against the State (Amendment) Act 1972 provides that in a prosecution under s. 21 of the 1939 Act, the belief of an officer of An Garda Síochána not below the rank of chief superintendent that the accused was at the material time a member of an unlawful organisation shall be admissible evidence that the accused was then such a member.

The defendant attended the funeral of a member of the Irish Republican Army (“the IRA”) in September 2012. Several men fired shots over the deceased's coffin and then got into the defendant's van to change out of their paramilitary garb before dispersing among the crowd. The defendant was arrested on 13 September 2012 pursuant to s. 30 of the 1939 Act on suspicion of, inter alia, membership of the IRA and released without charge.

In November 2012, a prison officer in Northern Ireland was murdered, an offence that An Garda Síochána believed was carried out by the IRA. The vehicle driven by the perpetrators was purchased by the defendant one month previously and there was evidence connecting the defendant to the movement of the vehicle to County Leitrim prior to the murder.

On 18 December 2012, the defendant was arrested again, without warrant, on suspicion of withholding information in relation to the above murder and membership of the IRA. The defendant was charged with both offences. The indictment was severed, and the defendant was acquitted before the Special Criminal Court of the withholding offence on the basis that the prosecution failed to establish beyond reasonable doubt that he knew the purpose for which the vehicle would be used.

At the trial for the membership charge, the court found that there was no connection between the investigations leading to the first and second arrests and the evidential grounds for the second arrest only materialised in the interim. The court held a warrant pursuant to s. 30A of the 1939 Act was not required in circumstances where the second arrest was in connection with a different offence.

The prosecution relied on the evidence connecting the defendant to the vehicle's purchase and movements, the belief evidence of a chief superintendent of An Garda Síochána that the defendant was a member of the IRA, and the inferences drawn from the defendant's failure to answer questions material to the offence.

The chief superintendent claimed privilege over all materials on which he based his belief. While accepting that the reliance on privilege made it more difficult for the defendant to test the belief evidence in cross examination, the court found this should go to the probative weight of the evidence rather than its admissibility.

The court concluded that the garda's belief evidence was sufficient, when supported by the defendant's false answers and failure to answer questions during interview, to draw the inference that he was a member of the IRA and he was duly convicted.

The Court of Appeal rejected the defendant's appeal on the basis that the findings of facts on the evidence at first instance were open to the trial court; the garda witness's reliance on privilege was legitimate; and, notwithstanding the claim of privilege, the garda's belief evidence could still be tested in cross examination (see [2019] IECA 319). The defendant sought and was granted leave to appeal to the Supreme Court (see [2021] IESCDET 85).

Held by the Supreme Court (O'Donnell C.J., MacMenamin, Dunne, O'Malley and Woulfe JJ.), in allowing the appeal, 1, that s. 30A of the 1939 Act applied to an arrest on suspicion of membership of an unlawful organisation if that person had previously been arrested on suspicion of membership of an unlawful organisation. That was so even where the subsequent arrest took place in the course of a separate investigation and in relation to a separate incident.

2. That the intention of the legislature in enacting s. 30A of the 1939 Act was to protect individuals against the oppressive exercise of garda powers and ensure that a person could not be subjected to repeated arrest and detention in respect of the same matter without the oversight of a judge. The protection of the statute had to be provided in all situations to which it applied.

The People (Director of Public Prosecutions) v. M.C.[2014] IESC 28, [2014] 3 I.R. 279 applied. DPP v. Power[2020] IESC 13, [2020] 2 I.L.R.M. 279 considered.

3. That belief evidence pursuant to statute was admissible if given by a member of An Garda Síochána of sufficient rank and a trial judge was not permitted to find it inadmissible on the basis of some other factor in the case.

4. A person could not be convicted solely on the basis of belief evidence; it had to be supported by other relevant and independent evidence.

Redmond v. Ireland[2015] IESC 98, [2015] 4 IR 84 applied.

5. That it was for the court of trial to assess the weight to be attached to belief evidence in light of any other relevant consideration. Relevant considerations might include the impact of a claim of privilege over the material on which the belief was based and doubts caused by the absence of relevant information from the material examined by the chief superintendent.

6. That where the prosecution relied on belief evidence, and made a broad claim of privilege over the material on which this belief was based, the weight of any supporting evidence needed to be relatively high.

The People (Director of Public Prosecutions) v. Cassidy[2021] IESC 60, [2021] 2 I.R. 710 followed.

7. That lies told by a defendant under ordinary caution might, subject to an appropriate warning, be supportive evidence if such lies were shown to have been deliberate, to relate to a material issue and to have been motivated by the realisation of guilt and a fear of the truth.

Reg. v. Lucas[1981] Q.B. 720 applied.

8. That an inference of guilt was not an inevitable consequence of a failure to answer a question under a specific caution that permitted an adverse inference to be drawn from such a failure. The trial court had to consider what inferences might be drawn as a matter of logic and thus the materiality of the questions had to be established before a court determined whether the responses were such as to justify the drawing of inferences.

The People (Director of Public Prosecutions) v. Donnelly[2012] IECCA 78 applied.

9. That the telling of lies about criminal activity that might be explicable without references to the activities of an unlawful organisation did not, on its own, amount to evidence of membership of an unlawful organisation.

Obiter dictum, per O'Malley J. (nem diss.): The lawfulness of a subsequent arrest could not be determined by the state of knowledge of the arresting officer, albeit it might be relevant in the analysis of admissibility of any evidence obtained as a result of that arrest.

Cases mentioned in this report:

Connolly v. Director of Public Prosecutions[2015] IESC 40, [2015] 4 I.R. 60.

DPP v. Power[2020] IESC 13, [2020] 2 I.L.R.M. 279.

Department of Justice and Equality v. Gleeson[2019] IEHC 562, (Unreported, High Court, Owens J., 22 July 2019).

The People (Director of Public Prosecutions) v. A.B.[2015] IECA 139, (Unreported, Court of Appeal, 6 July 2015).

The People (Director of Public Prosecutions) v. Banks[2019] IECA 319, (Unreported, Court of Appeal, 20 December 2019).

The People (Director of Public Prosecutions) v. J.C.[2015] IESC 31, [2017] 1 I.R. 417.

The People (Director of Public Prosecutions) v. M.C.[2014] IESC 28, [2014] 3 I.R. 279; [2015] 1 I.L.R.M. 131.

The People (Director of Public Prosecutions) v. Cassidy[2021] IESC 60, [2021] 2 I.R. 710.

The People (Director of Public Prosecutions) v. Donnelly[2012] IECCA 78, (Unreported, Court of Criminal Appeal, 30 July 2012).

The People (Director of...