The Court of Criminal Appeal refused Martin Kelly leave to appeal his conviction for membership of the IRA, holding that the Special Criminal Court was entitled to assess the conflicting evidence and that a Garda superintendent’s opinion was corroborated by other evidence in the case.
Kelly and co-accused Billy Clare had been charged with membership of an unlawful organisation under section 21 of the Offences Against the State Act 1939. The Special Criminal Court heard evidence over nine days from 13 witnesses. Clare pleaded guilty on the fifth day. Kelly denied membership of an illegal organisation and was convicted and sentenced to four years in prison.
The prosecution alleged that, at a meeting in Dublin on 27 May 2002 concerning security for a lap-dancing club, Kelly introduced Clare as “the top man” in the IRA. It said Clare sought a payment for the Continuity IRA and threatened harm and damage to the premises if it was not paid. The amount sought was first €50,000 and later reduced to €25,000, which was paid in instalments. Kelly’s defence was that the money was a bona fide fee for a year of security services, with no illegal organisation involved.
The appeal focused on the credibility of prosecution witness David Mooney and on evidence from Chief Superintendent Kelly, who said he believed Martin Kelly was an IRA member on the relevant date. The superintendent refused to disclose the source of his information, saying disclosure could endanger people and Garda operations. The Special Criminal Court upheld his claim of privilege.
The Court of Criminal Appeal said it would not substitute its view of witness credibility where the trial court’s findings were supported by credible evidence, particularly when those findings depended on demeanour. It noted the Special Criminal Court’s detailed assessment of Mooney, Patrick Byrne, Gerard Cosgrove and Kelly, amid sharp conflicts in the testimony.
On the privilege issue, the appeal court said the balance between protecting sources and ensuring a fair trial was for the trial court. The superintendent’s opinion was admissible but not conclusive and had to be considered alongside the surrounding evidence. The trial court had accepted Mooney’s evidence and was entitled to treat it as corroboration of the superintendent’s belief.
The court rejected Kelly’s fair-trial argument and refused leave to appeal. It left open whether it could intervene in a case where there was no other evidence corroborating a superintendent’s belief.