15 February 2006

Supreme Court reserves illegal membership judgment

Irish Examiner

By Vivion Kilfeather
15 February 2006

THE Supreme Court has reserved judgment in an appeal that could have major implications for the conduct of trials for membership of an illegal organisation at the Special Criminal Court.

The case centres on the right of people accused of membership to cross-examine a Garda Chief Superintendent on the basis of his belief that an accused is a member of an unlawful organisation.

Under the Offences Against the State Act, the Garda Chief Superintendent’s belief is evidence of membership, but in practice in recent years must be supported by other evidence.

Martin Kelly, aged 49, a former corporal in the Defence Forces, of Westpark, Artane, was convicted in November 2003 of membership of an unlawful organisation styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann, otherwise the IRA on July 29, 2002. He was jailed for four years.

During the trial, the Special Criminal Court heard that Kelly and another man demanded money from a Dublin businessman to protect his lap dancing club in Temple Bar. The businessman gave €15,000 to the two men before going to the gardaí. He said the men told him the money was for the Continuity IRA.

Detective Chief Superintendent Philip Kelly of the Special Detective Unit said he believed Kelly was a member of the IRA, but Martin Kelly, in evidence on his own behalf, denied membership.

The Court of Criminal Appeal turned down Kelly’s appeal but said a point of law raised by his lawyers should go to the Supreme Court for consideration.

Kelly’s counsel, Peter Finlay SC, submitted that Article 38 of the Constitution, which guaranteed the right to a fair trial, had been breached because the defence in Kelly’s case was not entitled to cross-examine Chief Superintendent Kelly on the basis behind his belief evidence.

Mr Finlay said that Section 3 (2), of the Offences Against the State (Amendment) Act, 1972, provided that where a Garda Chief Superintendent gave evidence that an accused was a member of an unlawful organisation, the statement will be evidence that he was such a member.

He said the challenge was not to the constitutionality of the section, but to the manner in which it was allowed to operate. He said that Article 38 guaranteed procedures that were fair, and Kelly was not given a fair trial when he did not have the opportunity to test the evidence against him.

He said when he attempted to challenge the Chief Superintendent’s belief evidence, the Chief Superintendent invoked privilege and claimed it was necessary to protect informants’ lives.

George Birmingham SC, for the State, submitted that the provisions of the 1972 Act were clear and there could be no question about the admissibility per se of the Chief Superintendent’s opinion evidence.

He said the Special Criminal Court had upheld the claim to privilege.

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