CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 décembre 2013

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IRELAND   (Application no. 19165/08)                 JUDGMENT         STRASBOURG   12 December 2013     FINAL   14/04/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Donohoe v. Ireland, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Ann Power-Forde,   Ganna Yudkivska,   André Potocki,   Paul Lemmens,   Helena Jäderblom,   Aleš Pejchal, judges,   and Claudia Westerdiek, Section Registrar, Having deliberated in private on 12 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 19165/08) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr Kenneth Donohoe (“the applicant”), on 8 April 2008. 2.     The applicant was represented by Ms C. Almond, a lawyer practising in Dublin. The Irish Government (“the Government”) were represented by their Agent, Mr P. White, of the Department of Foreign Affairs. 3.     The applicant complained under Article 6 of the Convention that his trial was unfair because of the non-disclosure of the sources of the evidence of a Chief Superintendent without adequate counterbalancing measures. 4.     On 4 January 2012 the application was communicated to the Government. 5.     Written submissions were received from the Irish Human Rights Commission, which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court, as in force at the material time). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1978 and has a permanent address in Dublin. A.     Background facts 7.     The criminal proceedings against the applicant to which this application relates arose, inter alia , from his association with the following events. 8.     On 10 October 2002, an off-duty Garda (police) detective attached to the Special Detective Unit - who lived in a housing estate near Dublin called Corke Abbey - noticed suspicious activity and contacted a local Garda station. From shortly after 11 pm, he watched the movements of three cars (a blue Nissan Almera, a dark Nissan Micra and a yellow Transit van) and he noticed the occupants of the three cars acting in what appeared to be a coordinated manner. At one stage, five men got out of the Nissan Micra and three of them got into the back of the yellow Transit van, where there was already a driver and a man in the passenger seat. The other two got back into the Nissan Micra and it was driven off. A taxi arrived and its sole passenger got out and joined the other group. These six men were gathered together at the side of the Transit van. An unmarked Garda vehicle manned by two Gardaí arrived in response to the off-duty detective’s call and approached the van. One of the men walked away from the group while four of them got into the back of the van and one into the driver’s seat. 9.     The Nissan Almera remained on the estate parked near the Transit van. One Garda spoke to the driver of the Transit van who gave a false name (referred to below as PB). While speaking with him, the Gardaí noted a black balaclava and the handset of a portable radio on the floor of the van. The other Garda opened the back door of the van and saw the other four men, sitting on the floor, as well as a number of items (which the trial court later regarded as “ significant pieces of evidence” see § 11 below): a lump/sledge hammer; two pickaxe handles; a torch; eight plastic bags of cable ties; black balaclavas with single or double openings; two identical navy ties resembling those worn by members of An Garda Síochána; woollen gloves; rolls of masking tape; a sky blue shirt marked ‘security’; a yellow fluorescent jacket with the word “GARDA” labelled on it; black woollen gloves and plastic industrial gloves; a number of remote controlled radios and election posters in respect of a man named O’Snodaigh. Two of the men in the back of the van were dressed in clothing that gave the appearance of, and made them look like members of An Garda Síochána including, yellow fluorescent jackets on which was printed or marked “GARDA”. 10.     When the Nissan Almera was later examined by the police they found it contained false registration plates which corresponded to its tax and insurance discs, these, in fact, being those of an identical car that had previously been stolen; the genuine registration plates for the Nisssan Almera; a ‘Long Kesh’ baseball cap; a quantity of ties and a plastic bag which contained a stun gun and a canister of CS gas; a blue flashing light and beacon which would give the appearance of belonging to an official police car; and a roll of black binding tape. The owner of the car was later identified as being MB. 11.     The five men of the original eight who remained in the estate, and who were in the Ford Transit van, were arrested and charged with being members of an illegal organisation. During police investigations, the Nissan Micra car which had left Corke Abbey after dropping off three of the five men who had been in it, was later traced back to a Ms K., the partner of the applicant (see paragraph 22 below). On 24 October 2002 a lawful search of the applicant’s home took place. Papers were found which contained the phone number of the owner of the Nissan Almera (MB) and the phone number of the man in the driver’s seat of the Transit van (PB). The trial court later found established that, at the very least, the applicant was acquainted with one of the men arrested on 10 October 2002 and with the owner of the Nissan Almera car (see paragraph 22 below). 12.     On 24 October 2002 the applicant was arrested under section 30 of the Offences against the State Act 1939, as amended (“the 1939 Act”). He was brought to the police station where he was questioned about membership, contrary to section 21 of the 1939 Act, of an unlawful organisation (the Irish Republican Army, “IRA”). The applicant did not make a statement and was released from custody. 13.     On 30 October 2002 he was arrested on suspicion that, on 10   October 2002, he was a member of the IRA contrary to section 21 of the 1939 Act. He and a co-accused (NB) were interviewed at length by police officers. Numerous questions were put to them concerning the events in Corke Abbey and the evidence gathered by the police. Section 2 of the Offences Against the State (Amendment) Act 1998 (“the 1998 Act”) was invoked by the interviewing officers and each accused was informed of the consequences of a failure to answer the questions. Neither answered any question. The trial court later noted that the two accused accepted that they had had full access to legal advice and found that each had availed himself of the opportunity to consult a solicitor before and during several police interviews. Those interviews were also recorded on video. 14.     The applicant was brought before the Special Criminal Court (“SCC”) and charged with membership on 10 October 2002 of an unlawful organisation, the IRA, contrary to section 21 of the 1939 Act. B.     The SCC 15.     In October 2004 the applicant and NB were tried before the SCC. The trial lasted 8 days. 54 prosecution witnesses were heard. The accused did not give any evidence at trial nor was any other evidence tendered on his behalf. 16.     On 18 November 2004 the SCC delivered its judgment convicting the applicant and his co-accused. In so doing, it identified four strands of evidence tendered by the prosecution: (i) the sworn testimony of Chief Superintendent PK that it was his belief that, independently of any matter discovered at the time of the Corke Abbey events or any matters following those events, the applicant was a member of the IRA; (ii) evidence that associated each of the accused with the activities at Corke Abbey which the prosecution contended were of a type usually associated with the IRA and which it claimed supported or corroborated PK’s evidence; (iii) evidence that, following a search of their homes, documentation was found which was said to be of a type one might expect to find in the possession of an active member of an organisation like the IRA; and (iv) inferences, it argued, that could properly be drawn, pursuant to statute, arising from the failure of the applicant to answer questions material to the investigation of the offence in question. 17.     The trial court considered the first strand, which comprised the evidence of a Chief Superintendent who testified that he believed that, on 10   October 2002, the applicant was a member of the IRA. He stated that his belief was based on confidential information available to him, of an oral and written nature, from police and civilian sources. This information was independent of any matters discovered when five persons were arrested for unlawful activity at Corke Abbey and also independent of any matters discovered following those events. When asked to identify his sources, he claimed privilege stating that disclosure would endanger lives and State security. 18.     The applicant made an application for an inquiry into PK’s sources arguing that his trial would be unfair if he did not know these sources and the evidence against him ( Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000-II). The prosecution, which had no access to the confidential source material, opposed the applicant’s request on the basis of the principle of informer privilege. Reviewing this Court’s case-law ( inter alia , Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, ECHR 2004-X), the SCC found that, while it was unthinkable that information that would threaten lives or State security would be disclosed, the admission of PK’s evidence without any inquiry into its basis would unfairly balance the trial in favour of the prosecution. The accused, it held, was entitled to some enquiry into the basis of PK’s belief in order to reconcile an order for privilege with defence rights. The SCC, therefore, directed the Chief Superintendent to produce all relevant documentation which, he asserted, informed him that the accused were members of the IRA. In compliance with the direction, files relating to both the applicant and his co-accused and covering a lengthy period prior to 10 October 2002 were produced to the trial court, but not disclosed to the prosecution or to the defence. The Court conducted a review of those files considering this to be the most appropriate solution in the interests of justice. Its competence to do so had been considered and confirmed previously by the Supreme Court and, as such, it was authorised by domestic law ( DPP v Ward [1999] 1 I.R. 60). 19.     Following the review of PK’s files, the SCC was satisfied that PK had “adequate and reliable information” on which he could legitimately form the opinion that each accused was a member of the IRA. It found that there was nothing in the files that would assist the defence in proving the innocence of their clients. Later, in weighing PK’s evidence, the SCC confirmed that it had excluded any information to which it had become privy during its review of the files he had produced to the court. The SCC also noted that the demeanour of PK was such that the court was persuaded that he was an “honest and reliable” witness. He had 25 years’ service as a police officer most of which was devoted to combating subversion and, as the head of the Special Detective Unit (concerned with the State security and monitoring subversive organisations), PK was the person best placed to learn of the activities of the accused. It was difficult to imagine anyone better informed on the subject in the country. The SCC was persuaded beyond any doubt by the belief evidence of PK that the accused were members of the IRA as charged. Moreover, the trial court was satisfied that PK had formed that belief ever before the ‘Corke Abbey’ events of 10   October 2002 or any matters discovered following the arrest of five persons on that occasion. The SCC totally rejected a suggestion put to the Chief Superintendent PK, in cross-examination that his evidence was a fiction. 20.     However, the trial court held that the demands of justice required that it should not convict solely on the basis of PK’s evidence so the SCC went on to examine whether there was evidence which supported and corroborated the belief of PK. 21.     The second strand of the prosecution case to which the trial court had regard was evidence which, it was satisfied, established that each of the accused was associated with the other and with the activities at Corke Abbey, activities which, according to the prosecution, were of a type associated with the IRA. Police officers gave detailed evidence about the events and the suspicious activities in Corke Abbey on the night of 10   October 2002 and about the items that had been found following a search of the vehicles involved (see paragraphs 7, 8 and 9 above). 22.     Packaging from a Rayovac torch and a receipt dated 10 October 2002 were later found in the Nissan Micra when it was searched. The SCC was satisfied beyond any doubt that this packaging and receipt matched the torch found in the Transit van. It was further satisfied that the dark green Nissan Micra observed by the police at Corke Abbey was the property of Ms K, the partner of the applicant, and that he, the applicant, had had control of the motor vehicle on the evening in question. His partner had testified that she had given the keys of her Nissan Micra to the applicant around 8pm on 10 October 2002; that neither he nor the car was back when she returned home later that night; and that when she awoke the next morning both he and the car were back at the house they shared. The trial court had no doubt that the applicant was either one of the male drivers of the Nissan Micra at Corke Abbey or that he was aware of and acquiesced in the use to which it was being put. It was also satisfied, having heard abundant evidence which included sightings of the applicant and his co-accused together in the middle of the night when the applicant’s home was being searched, that they were ‘well known’ to each other. 23.     The SCC considered that the above evidence showed that both accused were aware of, or acquiesced in, unlawful activities in Corke Abbey. However, it was of the view that those activities could equally be ascribed to persons engaged in organised crime as opposed to those engaged in subversive crime. 24.     The third strand of the prosecution case concerned documentation found upon a search of the applicant’s home on 24 October 2002. On the one hand, there was a piece of paper containing the drawing of a key and a telephone number which the court accepted was that of MB, the owner of the Nissan Almera with the false number plates. They also found a piece of paper with the telephone number of PB whom the Court had no doubt was the person found to be driving the Ford Transit van on the night of the 10   October 2002. During an earlier search of the co-accused’s home, police had found documents which contained notes of the actions and movements of a number of elected politicians from different political parties plus documents recording the names and addresses of persons involved in serious crime and documents noting the names of persons linked to the Irish National Liberation Army (“INLA”), another unlawful organisation (paragraph 39 below). A thumb print on black tape found in the Almera was accepted as being that of the co-accused. The trial court accepted that the documentation established that the applicant was, at the very least, acquainted with the driver of the Transit van (PB) and the owner of the Nissan Almera (MB). However, it was not, of itself, supportive of Chief Superintendent PK’s evidence that the applicant was a member of the IRA. 25.     The fourth strand of the prosecution case against the applicant and his co-accused was that, in the course of a number of interviews by police officers following their arrest during which the provisions of s.2 of the Offences Against the State (Amendment) Act, 1998 were invoked and explained to them, each man failed to answer a variety of questions which, the court maintained, were very material to the investigation of the offences with which each was charged. It was accepted by the defence that each accused was afforded all the rights and privileges to which they were legally entitled during their detention and, in particular, that each of them had full access to legal advice. The court noted that each availed of the opportunity to consult a solicitor before and in the course of several police interviews. The video-recordings of the interviews were shown to the trial court. It noted that, not only did each remain totally silent during the course of interview, but each appeared to take no ostensible interest whatsoever in what was going on. They sat bolt upright showing remarkable self-control throughout, in that their only movement was an occasional blink of the eyes but they made no effort to engage with the interviewers. It was clear to the court that each was deliberately and offensively ignoring all that was being asked of them. The court was satisfied that not only were the relevant statutory provisions invoked and adequately explained to each accused but each was given an opportunity to protest in the event that he had not understood that explanation, an opportunity which was ignored. Each question material to the charge was met with a stony silence. For example, each accused was asked to affirm or deny that he was a member of the IRA. Each was asked whether he knew the men arrested at Corke Abbey on the night of 10 October 2002, it being clear that each knew one or more of them. Each was asked to explain why they kept the documentation found when their houses were searched and each was asked whether they had any involvement with the aforesaid events. The applicant, in particular, was specifically asked about his use of his partner’s car on the night of 10   October 2002 and to explain how it had been seen at Corke Abbey on that night, it being the evidence of his partner that he had been in possession of the car. 26.     The trial court had no doubt as to the materiality of a vast number of the questions put to each accused and it was clear that each had made no effort whatsoever to answer them. In those circumstances, the court had ‘no doubt’ that, as provided for by section 2 of the 1998 Act, it was entitled to and did, in fact, draw the inference from the failure of each accused to answer those questions that each had a guilty conscience insofar as the allegation of membership of an unlawful organisation was concerned. The court was satisfied that their silence amounted to corroboration of the belief evidence given by Chief Superintendent PK. As the court did not doubt the evidence of PK that he believed each was a member of the IRA and as the court was satisfied that the failure of each to answer material questions during police interviews was corroborative of that evidence, it was persuaded beyond all reasonable doubt that each of the accused was guilty of charged. 27.     For the sake of completeness, the trial court added, that while it had indicated in delivering its judgment that it was not convinced that, standing alone, either the activities at Corke Abbey with which each of the accused was associated or the documentation found upon a search of their homes necessarily indicated activities or membership of an unlawful organisation, it was the opinion of the court that “when viewed in conjunction with the belief evidence of Chief Superintendent PK and the fact that each accused failed to answer questions while being interviewed by members of the Garda Siochana, those two pieces of evidence, i.e. the activities which took place at Corke Abbey ... and the documentation which was found on the premises of each accused is supportive to the allegation that each of them is a member of the IRA”. 28.     The applicant was sentenced to four years’ imprisonment. C.     Appeal to the Court of Criminal Appeal (“CCA”) 29.     The applicant sought leave to appeal against his conviction to the CCA claiming that the trial court had erred in law. In particular, he objected to any review by the trial judges, as adjudicators of guilt or innocence, of material underlying the belief of Chief Superintendent PK on the grounds that to do so was unlawful and contrary to the case-law of this Court. 30.     On 28 November 2006 the CCA, having conducted an extensive review of the domestic jurisprudence and the case-law of this Court, gave judgment refusing leave to appeal. It was satisfied that a restriction on the ability to cross-examine the Chief Superintendent, arising from his claim of privilege in respect of the underlying sources of information upon which his belief was based because of a threat to life or to the on-going security of the State, did not ipso facto constitute a breach of Article 38 of the Constitution or of Article 6 of the Convention. The Supreme Court in DPP v. Kelly ([2006] IESC 20) had found this limitation necessary and properly counterbalanced by matters not dissimilar to those arising in the present case. The belief of Chief Superintendent PK was simply admitted as being evidence, no more and no less, and this was already well established in the prior jurisprudence. Such a witness could be cross-examined but he was entitled to claim privilege in respect of underlying facts or sources which led to his belief that disclosure of same could cause a credible threat to life or to state security. By ruling that it would not convict without evidence that supported or corroborated that belief, the trial court had clearly recognised the disadvantage to the defence which flowed from the claim of privilege and it had correctly sought evidence corroborative of PK’s belief. The exercise of the trial court’s discretion to review the files furnished by the Chief Superintendent PK did not infringe the right to a fair trial. It found no evidence that would have assisted the accused and the material examined constituted a good basis for the belief of the Chief Superintendent. The trial court had confirmed that, if it had found otherwise, this would have led to a different outcome. 31.     The CCA rejected the submission that the SCC, which decided on guilt or innocence, should not have carried out this review having regard to this Court’s case-law. It was not at all clear from the Convention case-law that any of the judgments relied upon by counsel in this case dealt with the issue of a claim to privilege based on a threat to life or to the on-going security of the State. In the applicant’s case, the CCA held that there was no reason to conclude that anything found in the material examined by the trial court was influential on that court in making its judgment, let alone inspiring anything determinative of the guilt of either accused. A statement to the contrary was explicitly made by the trial court and was to be found in the judgment itself. Nor could any of this material, had it been disclosed to the defence, have been considered to be in any way of assistance in establishing the innocence of the accused. A statement that no such exculpatory material existed was also found in the trial court’s judgment. 32.     The CCA also considered that the events at Corke Abbey and an association with those events, the vehicles and the contents of the vehicles, the materials found during searches as well as the meetings between both accused at the time when the applicant’s house was being searched, were all matters which came within the ambit of the phrase ‘movements, actions, activities, or associations on the part of an accused person’ found in section 3(1)(b)(i) of the Offences Against the State (Amendment) Act, 1972, as amended (“the 1972 Act”). The facts upon which the trial court relied were all proven beyond reasonable doubt and, indeed, the trial court had noted that there had been no serious challenge to the prosecution evidence of the facts, connections and associations so found. The trial court was fully entitled to have found that the applicant was associated with the events at Corke Abbey and its conclusion, in the circumstances, was a safe and valid one. Insofar as the appellants had complained about the trial court’s comment on the demeanour of each accused during police interviews, the CCA considered that their objection, against a background of a total failure to answer any question at all, was rather surreal. The evidence established a complete and utter failure to answer any question at all and the trial court made a finding on that failure. That court’s entitlement to draw inferences arose, precisely, from that failure. In the circumstances, the inferences were correctly and validly drawn. The commentary as to demeanour did not alter that in any way nor did it suggest that the right to silence did not apply. 33.     The CCA confirmed the trial court’s conclusion that, while the association with events at Corke Abbey or the documents found on searches, for example, might not, in isolation, be indicative of membership of an illegal organisation, these matters, accepted as having been proven, when taken together with the inferences validly drawn, were supportive of the opinion of Chief Superintendent PK. When considered with his evidence, all the matters taken together were sufficient to establish beyond reasonable doubt that both appellants were members of the IRA on the date in question. The trial court was entitled to look at the established facts, when taken together, and also when taken in conjunction with the inferences which it had properly drawn to see whether these supported or corroborated the belief evidence of the Chief Superintendent. The trial court’s finding that the foregoing facts and inferences, when taken together with the belief evidence of the Chief Superintendent, established beyond reasonable doubt the charges against the accused was a correct finding and conclusion. D.     Section 29 of the Courts of Justice Act 1924 (“the 1924 Act”) 34.     The applicant then brought an application to the CCA under section 29 of the 1924 Act, pursuant to which he requested the court to certify that its previous decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The question proposed by the applicant for the Supreme Court’s consideration was whether the receipt and examination of material concerning the applicant to which neither he nor his advisors had access was consistent with the State’s obligation to provide a fair trial pursuant to Article 6 of the Convention and Article 38 of the Constitution. On 26 October 2007 the CCA delivered its (second) judgment and refused the application for a section 29 certificate. 35.     The CCA reviewed the case law of this Court upon which the applicant had relied. It summarised this Court’s findings in the above-cited case of Rowe and Davis v. the United Kingdom (in which it had found a violation of Article 6) to the effect that: (a) the entitlement to disclosure is not an absolute right and that, in any criminal proceedings, there may be competing interests, such as national security or the need to protect witnesses at risk of reprisal, which must be weighed against the rights of the accused; (b) in cases where evidence is withheld from the defence in the above circumstances it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary. Instead this Court’s role is to ascertain whether the decision-making procedure or process which was applied did comply, as far as possible, with the requirements of adversarial proceedings; (c) in the Rowe cases there was a failure by the prosecution to lay the evidence in question before the trial judge to permit him to rule on the question of disclosure and this deprived the applicant of a fair trial; and (d) the particular facts in that case differentiated it from the case of Edwards v. the United Kingdom (16 December 1992, Series A no. 247 B). Referring to Jasper v. the United Kingdom ([GC], no. 27052/95, 16 February 2000), in which these principles were repeated, the CCA noted that this Court had recognised that the trial judge held a supervisory role in determining the balance between the competing rights of the defence and of public interest immunity. It found that the fact that the need for disclosure was at all times under assessment by the trial judge provided a further important safeguard. 36.     The CCA concluded that the approach taken by the trial court in the applicant’s case was clearly within the ambit of the case-law of the Strasbourg Court which required that the withholding of any such documentation had to remain at all times in the supervisory control of judges themselves. The CCA rejected the submission that the trial court’s approach involved a review of material which was determinative of guilt. Rather, the judges were considering whether PK’s evidence should be admitted without cross-examination as to its source in circumstances where privilege, based on the safety of the life of others, had been invoked. In weighing up the value of that belief evidence, the trial judges had had no regard at all to the documentary source material. There was no requirement to disclose documents which did not damage the prosecution or assist the defence and it was clear from the SCC’s review that there were no such documents: if the SCC had found documents of assistance to the applicant, its answer would have been different. Moreover, the undisclosed documents were demonstrably not determinative as the applicant had suggested and the trial court had explicitly stated this to be so in its judgment. Finally, the CCA noted that the applicant had not sought to have the appeal court examine or consider the Chief Superintendent’s documentation in order to ascertain whether the trial judges had misdirected themselves in respect of the documents or the material contained therein. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Constitution   37.     Article 38 reads, in so far as relevant, as follows: “1. No person shall be tried on any criminal charge save in due course of law. ... 3(1) Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order. (2) The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law. ...” B.     The Offences Against the State Act 1939, as amended (“1939 Act”) 38.     The Court refers to the description of the matters leading to the adoption of the 1939 Act in its judgment in Lawless v. Ireland ((no. 3), 1   July 1961, §§ 1-7, Series A no. 3). The 1939 Act allowed for the establishment of the Special Criminal Court (“SCC”, section 38) to try offences not amenable to trial in the ordinary courts. The SCC remains in being as long as the Government proclamation is in force and can be re-established at any time by proclamation. Unlike the ordinary criminal courts, the SCC is a non-jury court comprised of three judges from the ordinary courts. 39.     Section 21(1) of the 1939 Act prohibits membership of an unlawful organisation. The Irish Republican Army (“IRA”) was declared unlawful by a suppression order pursuant to section 19 of the 1939 Act. In 1983 a suppression order prohibited the Irish National Liberation Army (“INLA”). 40.     Section 36 of the 1939 Act allows for certain scheduled offences to be tried before the SCC. The Offences Against the State (Scheduled Offences) Order 1972 defined scheduled offences and includes the offence of membership of an unlawful organisation. C.     The Offences Against the State (Amendment) Act 1972, as amended (“the 1972 Act”) 41.     Section 3 of the 1972 Act, entitled “Evidence of membership of unlawful organisation”, reads as follows: “3(1)(a) Any statement made orally, in writing or otherwise, or any conduct, by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under section 21 of the Act of 1939, be evidence that he was then such a member. (b) In paragraph (a) of this subsection ‘conduct’ includes- (i) movements, actions, activities or associations on the part of the accused person, and (ii) omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive. (2) 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..” D.     The Offences against the State (Amendment) Act 1998 (“the 1998 Act”) 42.     Section 2 of the 1998 Act is headed ‘Membership of an unlawful organisation: inferences that may be drawn” and provides: “2. (1) Where in any proceedings against a person for an offence under section 21 of the Act of 1939 evidence is given that the accused at any time before he or she was charged with the offence, on being questioned by a member of the [police] in relation to the offence, failed to answer any question material to the investigation of the offence, then the court in determining whether to send forward the accused for trial or whether there is a case to answer and the court ... in determining whether the accused is guilty of the offence may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely on an inference drawn from such a failure. (2) Subsection (1) shall not have effect unless the accused was told in ordinary language when being questioned what the effect of such a failure might be.” E.     Relevant judicial dicta 1.     O’Leary v. the Attorney General [1993] 1 I.R. 102 43.     In this case the High Court rejected a challenge to the constitutionality of section 3(2) of the 1972 Act and, in so doing, it noted: “What this section does is to make admissible in evidence in certain trials statements of belief which would otherwise be inadmissible. The statement of belief it proffered at the trial becomes “evidence” by virtue of this section in the prosecution case against the accused. Like other evidence it has to be weighed and considered and the section cannot be construed as meaning that the court of trial must convict the accused in the absence of exculpatory evidence. The accused need not give evidence and he may ask the court to hold that the evidence does not establish beyond reasonable doubt that he is a member of an unlawful organisation. Should the court agree he must be acquitted.” 2.     DPP v. Ward [1999] 1 I.R. 60 44.     The Supreme Court held in this case that informer privilege was of ancient origin and was essential for the prevention and detection of crime. The privilege was subject only to the ‘innocence at stake’ exception. Members of a trial court, it held, had full discretion to decide how a trial was to be conducted and, in particular, how an issue with regard to the question of privilege was to be decided. Although not mandatory, it was within the discretion of a trial court as to whether or not it should review documentation over which privilege is asserted - the court being required to balance, on the one hand, the public interest in prosecuting serious crime and protecting confidentiality and, on the other, the fair trial rights of an accused. 3.     DPP v. Kelly [2006] 3 I.R. 115 45.     The appeal in the present applicant’s case before the CCA was adjourned pending the delivery of the Supreme Court’s judgment in the above-cited case of DPP v. Kelly . In that case, the Supreme Court dismissed the appellant’s claim that the restrictions on his ability to cross-examine the Chief Superintendent giving belief evidence violated his right to a fair trial. 46.     The Supreme Court noted that the 1972 Act had been passed in the context of preserving the security of the State and it allowed for reliable information about membership of an unlawful organisation given by a senior police officer to be admitted into evidence. The Supreme Court noted the difficulty in getting direct evidence from lay witnesses who would not come forward for fear of reprisal. The SCC was itself established to avoid the mischief of juror coercion and intimidation. In relation to all anti-terrorist offences, as a matter of common sense, there would be equal apprehension about the intimidation of witnesses. It held that it was a reasonable inference to draw that section 3(2) of the 1972 Act was enacted out of bitter experience. A limitation on cross-examination was permitted by the statutory provision. The correct interpretation of section 3(2) was that it allowed cross-examination about the basis of the belief evidence but not to the extent that it interfered with or defeated a legitimate plea of privilege. 47.     As to the requested privilege over source material, the Supreme Court recalled the nature of an “unlawful organisation” and considered it obvious both from that definition and from common sense that such organisations are, in their nature, secret and violent. Such organisations threatened, intimidated and endangered the lives of informers. It followed that it would be extremely difficult to produce direct evidence capable of sustaining a prosecution. Intimidation of possible witnesses, and worse, was to be presumed. Where the police had secret intelligence, they would have been unable to produce informants without compromising them. Hence the need for the type of evidence permitted under section 3(2) of the 1972 Act. Parliament had chosen to designate a person holding the rank of Chief Superintendent as a witness whose belief might be accepted as evidence. Whether or not an accused person was a member of an unlawful organisation was a question of fact and the Chief Superintendent gave evidence, not of fact, but of belief. The Chief Superintendent simply stated his belief as an expert in his field. 48.     The Supreme Court recognised that, where privilege was claimed, as it inevitably was, the defence did not know the basis of the belief. It reviewed case-law of the Irish, American and British courts as well as of this Court and found that the essential question was whether the undisputed restriction on the right of the accused to cross-examine his accusers and to have access to the materials relied upon by the prosecution, had been unduly restricted to the extent that it rendered his trial unfair. 49.     The privilege granted was a clear infringement of the normal right of the accused to have access to the material which underlay the belief expressed and, to that extent, constituted a restriction on the effectiveness of his right to cross-examine his true accusers. However, there were a number of compelling justifications for this course of action. In the first place, resort to belief evidence applied only in the case of organisations which, by their nature, represented a threat, not only to the institutions of the State, but to individuals who were prepared to cooperate with the State in securing the conviction of members of such organisations. Secondly, the legislature allowed such evidence to be given by police officers of particularly high rank who could be presumed to have been chosen for having high standards of integrity. Thirdly, the procedure applied only while there was in force a declaration that “the ordinary courts are inadequate to secure the effective administration of justice....” The offence was a scheduled one: thus the cases would be heard by the SCC, a court composed of judges who had to be presumed to apply only the highest standards of fairness. Any restriction on the right to cross-examine had been limited to the extent that was strictly necessary to achieve its objective. 50.     Mr Kelly’s later application to this Court was declared inadmissible ( Kelly v. Ireland , (dec.) no. 41130/06, 14 December 2010). 4.     Redmond v. Ireland [2009] 2 ILRM 419 51.     Evidence was given in this case by a detective superintendent to the effect that the IRA was “an oath bound secret organisation divided into cells” which created problems for the police to infiltrate the organisation and gather evidence to prosecute member volunteers. The IRA assiduously sought out police informers: any identification usually resulted in serious ill-treatment or death. The evidence was that, while there were about 69 police officers of the rank of Chief Superintendent or higher who could give belief evidence under section 3(2), only 17 or so were experienced to give such evidence in practice. The Supreme Court also stated that a common feature of investigations into the activities of the IRA was “the presence of fear, intimidation and the threat of reprisals” so that, if section 3(2) had not existed, the police would not have succeeded in counter-acting the threat posed by the IRA. 5.     DPP v. Donnelly, McGarrigle and Murphy [2012] IECCA 78 52.     The accused argued in this case that Article 6 had been breached as his conviction was based on belief evidence in respect of which a claim of privilege was asserted over disclosure of sources and on a negative inference drawn from his silence under section 2 of the 1998 Act. 53.     The Supreme Court underlined the limited scope of section 3(2) of the 1972 Act. In the first place, belief evidence could only be admitted as regards the offence of membership of an unlawful organisation and it was particularly suited to that charge. Unlawful organisations were cell based, secretive, and violent organisations which invested considerable resources in the enforcement of secrecy about the membership and did so through torture, death and the inevitable fear that those methods engender. “Membership” was normally a continuing state of affairs and more susceptible to belief evidence of a senior police officer, based on a variety of sources over a period of time. Secondly, the Supreme Court explained the nature of belief evidence: “The section makes the belief of a chief superintendent evidence that an accused was at a material time a member of an unlawful organisation. As the cases show, it does not make that evidence conclusive or preclude it from being challenged, tested or contradicted. For present purposes, it is important however, that it is the belief of the Chief Superintendent which is evidence, and not the material upon which that belief is based. Thus, the section does not involve the giving of hearsay evidence where the relevant evidence is that of a person who is not available in court for cross-examination. Nor is it akin to the giving of evidence by an anonymous witness. Here, the relevant evidence is the belief of a Chief Superintendent, who is identified and gives his or her evidence in open court. It is to be anticipated that the belief of such a senior officer in the gardaí will be based on a variety of sources: technological, electronic, and human, including information supplied by informants. But even in cases where the evidence of the Chief Superintendent is based upon the direct statements provided to him or her by an informant or informants, the court is not asked to act upon the hearsay statements of such informants: rather it is the belief of the Chief Superintendent based upon such informants which is the evidence. The formation of that belief would normally involve the application of the Chief Superintendent of his or her experience in dealing with informants and in dealing with illegal organisations and where relevant, in assessing the significance and value of diverse pieces of information and intelligence. Accordingly, where evidence is given pursuant to s.3(2) it is not the case that the court is asked to act upon either the evidence of anonymous witnesses or witnesses who are out of court and not available for cross-examination. Accordingly, any analysis based upon Doorson and Al-Khawaja should take account of this structural distinction.” Thirdly, the category of persons who could give evidence under section 3(2) was limited to officers of the rank of Chief Superintendent and normally only those with experience of illegal organisations. Finally, belief evidence could only be admitted while Part V of the Act of 1939 was in force so that it was used only when the Government considered that the ordinary courts were inadequate to secure the effective administration of justice and thus normally by the SCC, a non-jury court comprised of experienced judges who could be expected to approach such evidence with the necessary degree of expertise and circumspection. 54.     The Supreme Court recognised that the difficulty for the defence was not so much created by the fact that the belief of a Chief Superintendent is mad