The Court of Criminal Appeal refused Vincent Kelly leave to appeal his conviction for membership of an unlawful organisation and the five-year sentence imposed by the Special Criminal Court.
In a judgment delivered on 6 December 2007, Finnegan J. said the trial court was entitled to consider the evidence of a senior Garda officer’s belief alongside the other evidence. The court also rejected challenges concerning Kelly’s interview answers, the standard of proof, evidence from a van and an argument based on the European Convention on Human Rights.
Kelly had been convicted of membership of an organisation identified in the charge as the Irish Republican Army, also known as Óglaigh na hÉireann or the IRA. The alleged offence was said to have occurred in the State on 7 June 2005. After the Special Criminal Court refused to certify the case as fit for appeal, Kelly applied to the Court of Criminal Appeal for leave.
The prosecution case included evidence from Detective Chief Superintendent Philip Kelly, who said he believed Vincent Kelly was a member of the IRA. He said that belief had formed about five or six years earlier and was based on confidential information. He claimed privilege over its sources, saying disclosure could damage security operations and endanger life. He offered to make documents in his possession available to the trial court, but the applicant did not take up that offer.
The appeal court said belief evidence had no special status and had to be assessed with the evidence as a whole. It noted that the trial court considered the officer’s experience and evidence, as well as interview answers, items found in the van, Vincent Kelly’s fingerprint inside the rear of the van and the clothing he was wearing. The appeal court concluded that the trial court could accept the officer’s evidence and did not need to assign a separate numerical weight to each part of the cumulative case.
Gardaí had stopped an Opel van after observing it travelling with a BMW on Malahide Road in Dublin. A man who had been in the rear of the van escaped. A search found a handgun, balaclavas, gloves and a canister of mace. Vincent Kelly’s fingerprint was found inside the back of the van. The trial court had treated the circumstances and items as corroborative; the appeal court said they could be considered with the other evidence, while noting that individual circumstances might not alone support a conviction.
During three interviews, Kelly denied membership but did not answer many other questions about the van, its occupants and the items found in it. The appeal court held that the trial court could take those failures to answer into account under section 2 of the Offences Against the State (Amendment) Act 1998, given that the questions material to the investigation had not been answered.
The appeal court also found that the trial judges had applied the criminal standard of proof despite not stating “beyond a reasonable doubt” in their judgment. It said the Supreme Court’s decision on the human-rights argument bound the trial court. The application for leave to appeal was refused; the judgment did not determine a further appeal on the merits.