FIFTH SECTION
Application no. 19165/08
Kenneth DONOHOE
against Ireland
lodged on 8 April 2008
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Kenneth Donohoe, is an Irish national who was born in 1978 and who has a permanent address in Dublin. He was represented before the Court by Ms. Catherine Almond, a lawyer practising in Dublin. The facts of the case, as submitted by the applicant, may be summarised as follows.
A.  The circumstances of the case
1.  Background facts
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 namely, the Irish Republican Army (“IRA”). The applicant did not make a statement and was released from custody. 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 about their possible membership of the IRA (including in relation to the events in Corke Abbey referred to below), 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 for him of a failure to answer the questions. The accused did not answer any question.
The applicant was brought before the Special Criminal Court (“SCC”) and charged with membership on 10 October 2002 of an unlawful organisation namely, the IRA, contrary to section 21 of the 1939 Act.
2.  The SCC
In October 2004 the applicant and NB were tried before the SCC. The trial lasted 8 days. 54 prosecution witnesses were heard, none were heard on behalf of the accused and the applicant did not give evidence.
On 18 November 2004 the SCC delivered its judgment convicting the applicant and his co-accused. The SCC described the prosecution evidence as having four strands.
The first strand comprised the evidence of a Chief Superintendent (PK) as to his belief that on 10 October 2002 the applicant was a member of the IRA. His belief was based on confidential information received from both police and civilian sources, in both oral and written form. He would not disclose the sources of this information as it would endanger lives and hamper ongoing security issues in relation to state security.
During the trial, the applicant applied for (detailed submissions) an inquiry into PK’s sources and the prosecution (which itself had no access to the sources) opposed the request on the basis of the long established principle of “informer privilege”. The SCC decided itself to review the PK’s documentary sources and not his human (informer) sources and it outlined its reasons and the result in its judgment of the 18 November 2004. While it was unthinkable that information that would threaten lives or the security of the State be disclosed, the SCC accepted that the admission of PK’s belief evidence without any inquiry into its basis would have contributed to an unfair imbalance in favour of the prosecution. The SCC was entitled to review the documentary sources for PK’s belief (DPP v Ward [1999] 1 I.R. 60) and it therefore decided to do so.
Having reviewed three files produced by PK, the SCC stated that it 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 and that there was nothing in the files that would assist the accused in proving their innocence. Moreover, in considering the belief evidence thereafter, the SCC had excluded consideration of any information to which it had become privy as a result of its documentary review. The SCC also relied on the facts that PK had the demeanour of an “honest and reliable” witness, it was very much influenced by the fact that he had 25 years service as a police officer most of which was devoted to combating subversion and it noted that, as the head of the Special Detective Unit in the police, PK was the person best placed to learn of the activities of the accused. Accordingly, the SCC was “persuaded beyond any doubt by the evidence” by PK that, on 10 October 2002, both accused were members of the IRA. It reiterated that PK’s belief was not based on the events, outlined below, in Corke Abbey on that date.
However, since the SCC did not consider that the “demands of justice” required it to convict on the basis of the belief evidence alone, it went on to examine the remaining strands of evidence.
The second strand of the prosecution case was evidence associating each of the accused with each other and with activities in Corke Abbey on 10 October 2002 which activities were said to be a type associated with the IRA. Police officers gave evidence about suspicious movements in Corke Abbey on that date. At approximately 23.00 a Nissan Almera car (owned by MB) was parked with 4/5 men in it: a second car (Nissan Micra belonging to the applicant’s partner) then came to park behind it. At approximately 23:40 the Nissan Micra drove off and parked some distance away. Some minutes later a third car (a van) drove up and parked behind the Nissan Almera following which the Nissan Micra returned and parked behind the van. Three men from the Nissan Micra got into the back of the van and two others drove the Nissan Micra away. The police found a black balaclava and a portable radio handset in the front of the van and four men on the floor in the back (two dressed as police officers) with a black Rayovac torch, a lump hammer, two pickaxe handles, a balaclava, a bag containing three portable radio handsets and cable ties. The driver of the van was PB. A receipt dated 10 October 2002 and bubble wrap for a Rayovac torch was later found in the Nissan Micra. The applicant’s partner testified that she had loaned her car (the Nissan Micra) to the applicant on 10 October 2002, that neither the applicant nor the car was back when she returned late to the house they both shared that day but that both were back by the following morning. Police officers also give evidence of sightings of the applicant and his co-accused together.
The SCC did not consider that this evidence pointed specifically to membership of the IRA by the applicant and his co-accused: while the evidence showed that they were both aware of, or acquiesced in, unlawful activities in Corke Abbey on 10 October, those activities could be ascribed to persons engaged in organised crime as opposed to those engaged in subversive crime (the charge).
The third strand of the prosecution’s case comprised documentation found during a police search of the applicant’s home which it was claimed was of a type which one might expect to find in the possession of an active member of the IRA. The evidence concerned, notably, two pieces of paper: the first contained the drawing of a car key and a mobile telephone number (a number registered to MB) and the second contained a list of names and telephone numbers including of “Whacker.” later identified as PB. During a search of NB’s home, police recovered a piece of paper with a list of politicians’ names and other material outlining the movements of a number of known criminals in the area. The SCC found that, while the telephone numbers established that the applicant was acquainted with PB and MB, the documentation was not, of itself, supportive of the belief evidence of PK that the applicant was a member of the IRA.
The fourth strand of evidence was the inference to be drawn from the applicant’s silence during his interviews by the police. Video-recordings of the interviews were produced in evidence and shown at trial.
The SCC noted the comportment of each accused during the interview, finding it clear that each accused was “deliberately and, indeed, offensively” ignoring all that was being asked of them. The provisions of section 2 of the 1998 Act had been explained to each of the accused. The SCC did not doubt that the array of questions put to the accused were material to the charge against them. The SCC was therefore entitled to draw the inference that each of the accused had a guilty conscience concerning the allegation of membership of an unlawful organisation and, further, the SCC was satisfied that that amounted to corroboration of the belief evidence of PK.
In conclusion, the SCC stated that, since it did not doubt the belief evidence of PK and since it was satisfied that the failure of each accused to answer material questions during their police interviews was corroborative of the belief evidence, it was persuaded beyond all reasonable doubt that each of the accused was guilty as charged. The SCC added, “for the sake of completeness”, that it was not convinced that, standing alone, the evidence of the activities at Corke Abbey were activities of an unlawful organisation nor was it convinced that the documentation found during police searches necessarily indicated, of itself, that either was a member of an unlawful organisation: however, when viewed in conjunction with the belief evidence and the negative inferences, that evidence was “supportive to the allegation that each one is a member of the IRA.”
3.  Appeal to the Court of Criminal Appeal (“CCA”)
The applicant appealed his conviction to the CCA relying on Article 38 of the Constitution and Article 6 of the Convention and arguing that the SCC had erred in law in reviewing material which had not been made available to the applicant and that there was no evidence available to corroborate the belief evidence of PK. The hearing was held after the Supreme Court judgment in DPP v. Kelly ([2006] IESC 20). On 28 November 2006 the CCA gave judgment dismissing the appeal.
The most important ground of appeal concerned the belief evidence. Relying on DPP v. Kelly, the CCA was satisfied that a restriction on the right to cross-examine PK on the sources of his belief, due to a threat to life or to the security of the State, did not, ipso facto, constitute a failure to comply with Article 38 of the Constitution or with Article 6 of the Convention. The Supreme Court in DPP v Kelly found necessary the limitation on the right to cross-examination and that it was properly counterbalanced by matters which the CCA considered not dissimilar to those arising in the present case. The belief evidence was simply evidence, no more and no less. The SCC had correctly proceeded in seeking evidence corroborating the belief evidence: this was in line with DPP v Kelly and indicated that belief evidence alone was not to be “determinative” of guilt or innocence. The SCC had legitimately exercised its discretion (accorded in DPP v. Ward, cited above) to review the files, it found no evidence in favour of establishing the innocence of the accused and that the material was a “good basis” for PK’s belief. The CCA rejected the submission that the SCC, which decided on guilt or innocence, should not have carried out this review: the SCC judges had a long experience in removing from their consideration material which might have been opened to them in error so that there was no reason to consider that that anything in the material examined by the SCC influenced it in convicting the applicant or inspired anything determinative of his guilt. Indeed, the SCC had stated explicitly to the contrary during the trial and in its later judgment.
The CCA also considered that the finding of the SCC, that both appellants were associated with the events at Corke Abbey, to be established beyond reasonable doubt and a safe conclusion. Those events came within the ambit of section 3 of the Offences Against the State (Amendment) Act 1972 (as amended).
As to the negative inferences from silence, the CCA found the applicant’s objection to the commentary of the SCC on his demeanour and behaviour during police interviews to be “rather surreal”. The entitlement to draw inferences arose from a failure to respond to material questions so the inferences had been validly drawn. The impugned commentary of the SCC did not alter that or suggest that the right to silence did not apply.
Finally, the CCA commented on the overall conclusion of the SCC. The real question was whether the trial court misdirected itself in law in concluding that that evidence considered on a cumulative basis, corroborated the belief evidence. The CCA found that the trial court was entitled to examine whether, and to find that, the established facts (about Corke Abbey) when taken together in conjunction with the negative inferences, corroborated the belief evidence. The CCA concluded:
“The trial court’s finding that the foregoing facts and inferences, when taken together with the belief evidence ... established beyond reasonable doubt the charges against the applicants as accused, was also a correct finding and conclusion”
4.  Section 29 of the Courts of Justice Act 1924
On 26 October 2007 the CCA refused to certify a question for the Supreme Court as to whether the examination of the source material, to which the applicant did not have access, by the SCC was consistent with Article 38 of the Constitution and Article 6 of the Convention. The applicant had argued that he was entitled to know the basis for the belief evidence and that Convention jurisprudence prohibited the SCC from examining documents upon which the belief evidence was based since that role should not be carried out by a judge who later determines guilt or innocence (Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, ECHR 2004‑X). If the trial judge examined documents to determine if the belief evidence was reliable, this would equally amount to the trial judge determining guilt or innocence by reference to material which was not part of the prosecution case, was not even seen by the prosecution and was not disclosed to the applicant.
The CCA found that the trial court’s review of the documents on which the belief evidence was based was consistent with domestic and Convention case-law. The trial judge had no regard at all to those documents in weighing up the value of the belief evidence. 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 documents were not “determinative” as the applicant suggested. On the contrary, the SCC found that it would not convict the applicant on the belief evidence alone but only if that belief evidence was corroborated by other evidence. It was clear that the approach of the SCC, not to convict on the basis of the belief evidence and still less on the basis of anything in the documents reviewed, could not make that documentation “determinative of the issue”. This approach was the least possible interference with the applicant’s right to a fair trial.
B.  Relevant domestic law and practice
1.  Article 38 of the Constitution
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. ...”
2.  The Offences Against the State Act 1939 (“the 1939 Act”)
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 normal domestic courts. The SCC is a non-jury court. The sitting judges (normally three, drawn from the District, Circuit and High Court) hear the evidence and make findings of fact.
Section 21(1) of the 1939 Act provides that it shall not be lawful for any person to be a member of an unlawful organisation. The IRA was declared unlawful by order made under section 19 of the 1939 Act.
Section 36 of the 1939 Act allows for certain offences to be “scheduled” which offences are then to be tried before a SCC. Secondary legislation in 1972 defined those scheduled offences (Offences Against the State (Scheduled Offences) Order 1972 S.I. No. 142 of 1972) and the offence for which section 21 (1) of the 1939 Act provides is included.
3.  Section 3 of the Offences Against the State (Amendment) Act 1972, as amended by section 4 of the Offences Against the State (Amendment) Act 1998
Section 3 of the 1972 Act, as amended, is headed “Evidence of membership of unlawful organisation” and 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 [a police officer], 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.”
The Supreme Court has found these provisions not to be invalid having regard to the constitution (Donal O’Leary v. the Attorney General [1995] 1IR 254).
4.  Section 2 of the Offences Against the State (Amendment) Act 1998
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.”
5.  Relevant judicial dicta
In DPP v. Ward ([1999] 1 I.R. 60) the Supreme Court considered the circumstances in which a trial court could review documentary material over which the prosecution claimed privilege. Informer privilege was subject to the ‘innocence at stake’ exception and both notions had to be accommodated. When there was doubt, it was essential to obtain a ruling of the trial judge and, in certain cases, the SCC judges would examine the documents. Trial judges did not have an obligation do so in every case: that was why the prosecution counsel’s role was so critical. While the prosecution could not appear to be a judge in its own cause, the role of prosecution counsel was different to that of defence counsel. The latter’s role was to put the prosecution on proof and to seek an acquittal whereas the prosecution had the responsibility to assist in ensuring a fair and just trial.
In DPP v. Kelly ([2006] 3 I.R. 115) the Supreme Court dismissed the claim that the restrictions on an accused’s ability to cross-examine a police officer giving belief evidence violated his right to a fair trial, that court noting that it was of crucial importance in that case that there was quite extensive evidence against the accused other than the evidence of the police officer Chief Superintendent.
COMPLAINT
The applicant complained under Article 6 of the Convention that his trial was unfair. He refers, in particular, to the admission of the belief evidence arguing that that the review of the sources of this evidence was insufficient in that, inter alia, it was done by a trial court which also later decided on his guilt or innocence.
QUESTION TO THE PARTIES

Has there been a violation of Article 6 of the Convention having regard to the evidence admitted at trial and to any necessary counterbalancing safeguards or other factors?