The Court of Appeal has allowed a ground of Michael Connolly’s appeal against his conviction for membership of an unlawful organisation, ruling that the Special Criminal Court gave insufficient reasons for refusing to inspect confidential material underlying a senior garda officer’s belief evidence.
The court did not decide whether Connolly should face a retrial. It said it would hear submissions on that question. The appeal judges considered it unnecessary to address the remaining grounds, adding that none appeared meritorious.
Connolly had been convicted by the Special Criminal Court on 1 June 2017 of being a member of the IRA on 16 December 2014. He had pleaded not guilty and was sentenced to three years’ imprisonment, backdated to 5 April 2017. He appealed the conviction on 21 grounds.
At trial, Assistant Commissioner Michael O’Sullivan gave statutory belief evidence that Connolly was an IRA member on the date charged. O’Sullivan said his belief was based on confidential information and not on matters discovered during or after Connolly’s arrest. The underlying material was withheld on public interest privilege grounds, including concerns about protection of life, State security and Garda methods.
The defence challenged the privilege claim and asked the Special Criminal Court to inspect the material to assess whether the claim was justified and whether any of it could assist the defence. The trial court declined. It said it was not equipped to assess intelligence material in context and considered that inspection would add little given the requirement for independent evidence supporting the belief evidence.
The Special Criminal Court ultimately convicted Connolly after considering the belief evidence alongside other evidence. The Court of Appeal’s judgment noted that the belief evidence had contributed significantly to the verdict.
In its decision, the appeal court said a trial court has discretion over whether to inspect material subject to a privilege claim, but must exercise that discretion judicially. It found that the reasons given in this case did not sufficiently justify refusing the requested inspection, particularly in light of the role the belief evidence played in the conviction. The court therefore allowed this ground of appeal; it did not itself order a retrial or determine the remaining grounds.