The High Court has dismissed the Director of Public Prosecutions’ judicial review challenge to a Special Criminal Court certificate declaring that Michael Connolly suffered a miscarriage of justice. The certificate remains in place. The High Court did not reconsider the miscarriage of justice question from the beginning; it reviewed the legality of the Special Criminal Court’s decision.
Mr Justice Garrett Simons said the Special Criminal Court was entitled to find that a grave defect in the administration of justice had occurred. The DPP had not shown that the decision was unreasonable or irrational, the threshold for intervention in these judicial review proceedings.
Mr Connolly was convicted in 2017 of membership of an unlawful organisation and sentenced to three years in prison. The Court of Appeal overturned the conviction in 2018 and directed a retrial. At the retrial, he was acquitted and his release was directed. He had by then served about 14 months.
The retrial exposed a concern about “double counting” in the prosecution’s use of belief evidence. A senior garda officer’s belief that Mr Connolly was a member was admissible, but it had to be supported by independent evidence. The Special Criminal Court found a reasonable possibility that the officer’s belief had drawn on information about events on 16 December 2014 that the prosecution also relied on as independent support. The court had found no direct evidence that Mr Connolly knew of or controlled two improvised explosive devices found in a vehicle that night.
In certifying a miscarriage of justice in 2021, the Special Criminal Court said the officer’s trial evidence included an assertion that the material he had viewed was not in the book of evidence. It described the assertion as “seriously incomplete and misleading”. The court said there was no evidence that the officer knowingly misled the trial court, but found he had been careless. The assertion gave the trial court false assurance that double counting was not an issue, the High Court noted.
The DPP argued that the certification was incompatible with the Special Criminal Court’s assessment of circumstantial evidence and that the conduct did not amount to a grave defect. Mr Justice Simons rejected the claim that the Special Criminal Court had made a positive finding that Mr Connolly was involved in moving explosives. It had found that he had not established factual innocence, the judge said; that did not displace the presumption of innocence or amount to a finding of guilt. The judge also confirmed that a miscarriage of justice certificate may rest on a grave defect in the administration of justice even without a finding of factual innocence.
The DPP’s case was dismissed in its entirety. The judge’s provisional view was that Mr Connolly was entitled to recover his legal costs from the DPP. Either side could seek a different order by contacting the registrar within seven days and arranging a hearing in January 2024.