The Supreme Court dismissed appeals by five accused and affirmed their convictions and sentences, holding that the Criminal Justice (Surveillance) Act 2009 allowed surveillance recordings to be processed for use in criminal proceedings.
The appeals followed a 50-day trial before the Special Criminal Court. On 29 June 2018, that court convicted four of the accused of membership of an unlawful organisation described in the judgment as the self-styled Irish Republican Army. It convicted the first and last named accused of assisting the organisation. The offences were dated 8 August 2015.
The prosecution evidence included a recording made by a device gardaí had planted in a home in Castleknock, Dublin, during an internal enquiry into issues within the organisation. Because the enquiry was lengthy, the recording was edited to present relevant portions at trial.
The Supreme Court appeal concerned the interpretation of the 2009 Act, particularly whether surveillance recordings could be accessed and processed for investigation and trial when the Minister had not made regulations under section 10 about secure storage and access. The accused argued that, without such regulations, police could not copy, replay or process the recording beyond the surveillance operation itself.
Delivering a judgment on the statutory interpretation issues, Mr Justice Peter Charleton agreed with the analysis in a separate judgment by Ms Justice O’Malley. He said the Act’s scheme permitted surveillance evidence to be used and processed in the ordinary course of criminal investigation and prosecution. He treated section 10 as addressing secure storage and access outside investigative work, rather than preparation of evidence for court.
The judgment said the Special Criminal Court had been correct in the fundamental premise that the evidence was admissible. It also noted that the trial court had drawn a distinction between obtaining and processing evidence, but said that distinction could not affect this case. Charleton J left possible implications of a broader analysis, including how any illegality should be assessed, for another time.
The Supreme Court dismissed the appeals and affirmed the Special Criminal Court’s orders of conviction and sentence.