The Supreme Court has dismissed Sean Connolly’s appeal against his conviction for membership of an unlawful organisation, ruling that he could not introduce a constitutional challenge to a search warrant that had not been argued at trial or before the Court of Criminal Appeal.
In a judgment delivered on 26 March 2015, Mr Justice John MacMenamin said the later challenge, based on the Supreme Court’s 2012 decision in DPP v Damache, did not form part of the decision under appeal. The court therefore could not consider it in this appeal under section 29 of the Courts of Justice Act 1924.
The Special Criminal Court convicted Connolly in 2006. The evidence included a Chief Superintendent’s belief that Connolly was a member of the IRA, a document found during a search and described by the trial court as an IRA “debriefing document”, inferences drawn from his silence in interviews, and an inconsistency between his account of his movements and Garda evidence placing him in a laneway in Inchicore.
Connolly’s original appeal focused on the Chief Superintendent’s belief evidence and the limits on questioning him about its sources. The Court of Criminal Appeal dismissed that appeal, finding no error in the trial court’s approach and that there was other evidence supporting the belief evidence. It certified a question about whether the Supreme Court’s 2006 ruling in DPP v Kelly remained applicable after the European Convention on Human Rights Act 2003.
The Supreme Court said later decisions in DPP v Donnelly and Donohoe v Ireland had addressed the treatment of belief evidence and the fairness safeguards around it. It concluded that the Kelly approach remained applicable and that the European Court of Human Rights had found no violation of Article 6 in Donohoe.
The search of Connolly’s home was carried out under a warrant issued under section 29 of the Offences Against the State Act 1939. At trial, the defence challenged the warrant on the ground that there were insufficient reasonable grounds for issuing it. It did not argue that the warrant procedure was unconstitutional, the basis of the later Damache ruling. The Court of Criminal Appeal had described the warrant issue as “never really pursued”.
MacMenamin said the Supreme Court could consider only a point that arose in the Court of Criminal Appeal’s decision. Allowing the new argument would require the court to speculate about how the case might have proceeded if the search evidence had been excluded, he said. The Supreme Court dismissed the appeal; it did not determine the merits of the later constitutional challenge to the warrant.