The Court of Appeal has dismissed the Director of Public Prosecutions’ appeal against the acquittals of RK and LM, and declined to order a retrial on charges of membership of an unlawful organisation.
The court held that the Special Criminal Court was wrong to exclude evidence from Detective Chief Superintendent Howard that he believed each respondent was a member of the IRA on 6 March 2013. It said the evidence should ordinarily have been admitted, with its weight assessed by the trial court. The court found the excluded evidence was “compelling” within the meaning of the appeal legislation, but said that did not establish what weight it would have received or that it was enough to convict.
The respondents had stood trial in the Special Criminal Court from October to December 2019. The trial court excluded the belief evidence on fairness grounds, citing the breadth of a privilege claim over the material underlying Howard’s belief, which limited meaningful cross-examination. It also expressed concern that information from prosecution witness David Cullen—that LM was not an IRA member and that he did not know RK—had not been formally brought to Howard’s attention until the trial was under way. The Special Criminal Court then directed not-guilty verdicts.
The Court of Appeal acknowledged concerns about Howard’s experience, the restricted cross-examination and how the information was considered. It said those matters could affect the weight given to his evidence, but did not justify excluding it in this case. It also stressed that the trial court had made no finding on the weight the belief evidence would have carried, because it had excluded it.
In considering retrial, the appeal court said it was likely the Special Criminal Court would have attached little, if any, weight to the belief evidence had it admitted it. Given that assessment and the circumstances of the case, the court concluded a retrial would not serve the interests of justice. It dismissed the appeal, leaving the directed acquittals in place.
The judgment also noted that RK had since stood trial and, as the court understood it, had been convicted and sentenced for attempting to pervert the course of justice in relation to destruction of the SIM card at the crime scene. That was a separate offence from the membership charge in this appeal.