The Court of Appeal has dismissed Jonathan Hawthorn’s appeal against his conviction for membership of an unlawful organisation, rejecting arguments that the trial was unfair because several witnesses gave evidence without disclosing their names to the defence.
The judgment, delivered on 20 April 2020, concerns the conviction appeal only. Hawthorn was convicted in the Special Criminal Court on 31 July 2018 and sentenced to five years in prison, with credit for time served. His appeal against sentence was not addressed in this judgment.
The Court of Appeal said the Special Criminal Court could permit witnesses to give their names and addresses in writing to the court under Rule 7(4) of its rules. It considered the circumstances of the witnesses and the evidence they gave, and concluded that the defence had not been disadvantaged and the trial’s fairness was not compromised.
Six witnesses had been allowed to testify without revealing their actual names to the defence, with the public excluded from the courtroom. They included an FBI undercover agent identified at trial as “Agent Peter” and five Garda members, including Detective Garda BK, from the National Surveillance Unit. The prosecution relied on evidence about the agent’s undercover work and the Garda witnesses’ safety and operational concerns.
The court said the surveillance witnesses’ credibility was not put in issue. Detective Garda BK’s role was to take photographs of the controlled delivery and produce them in court. The court also found Agent Peter was not a sole or decisive witness: there had been no contact between him and Hawthorn, and the prosecution had not claimed Hawthorn was the person using the online name “Meat Cleaver”.
The prosecution case included a superintendent’s opinion that Hawthorn was a member of the IRA on 14 September 2016, evidence about an online request for explosives, and Garda evidence that Hawthorn accepted and signed for a package of inert explosives addressed to James Geraghty. The court said the appeal involved several strands of evidence and that the defence was not significantly hampered in addressing the delivery evidence.
The court also dismissed two other argued grounds. It held that photographs taken on a balcony at Dolphin House were not barred by the Criminal Justice (Surveillance) Act 2009, because the balcony was a place to which the public had access. It rejected the argument that the Judges’ Rules applied to the conversation between Hawthorn and a Garda during the delivery.
The court said it was not persuaded the trial was unfair or the decision unsafe, and dismissed the conviction appeal.