The Supreme Court has upheld Martin Kelly’s conviction for membership of the IRA despite finding that Garda reliance on confidential intelligence restricted his ability to cross-examine effectively.
Kelly was convicted by the Special Criminal Court on 19 November 2003 of membership of an unlawful organisation and sentenced to four years in prison. He had been released by the time his Supreme Court appeal was heard.
The prosecution case was not based solely on intelligence evidence. David Mooney testified that Kelly and co-accused William Clare represented themselves as connected with the IRA in connection with demands for money relating to a proposed lap-dancing club. Evidence was also given that money was paid to Kelly and Clare. Clare later pleaded guilty to membership of an unlawful organisation.
The prosecution additionally called Chief Superintendent Philip Kelly, then head of the Special Detective Unit. Under legislation allowing a Chief Superintendent’s belief to be admitted as evidence, he said he believed Martin Kelly was a member of the IRA on 29 July 2002.
When asked for the sources underlying that belief, the Chief Superintendent claimed privilege. He said disclosure could endanger informants and ongoing operations. The Special Criminal Court accepted that claim.
The Supreme Court considered whether this restriction was compatible with the constitutional right to a fair trial. Mr Justice Fennelly described cross-examination as fundamental and said withholding the basis of the Chief Superintendent’s belief undoubtedly restricted Kelly’s normal defence rights.
However, the court held that the restriction did not make this particular trial unfair. The protection of informants was justified, and substantial other evidence had been accepted by the Special Criminal Court independently of the Chief Superintendent’s belief.
Mr Justice Fennelly added that a different result might arise where belief evidence was the sole prosecution case, privilege prevented meaningful challenge and the accused gave evidence denying membership.
The appeal was dismissed and Kelly’s conviction remained in place.