The Supreme Court dismissed Martin Kelly’s appeal against his conviction for membership of an unlawful organisation, holding that limits on questioning a Garda Chief Superintendent about the basis of his belief did not make the trial unfair.
The appeal concerned a certified point of law about whether Article 38 of the Constitution was satisfied when an accused could not inquire into the basis of belief evidence given under the Offences against the State (Amendment) Act 1972. The Chief Superintendent had testified that Kelly was an IRA member on the relevant date. When questioned about the source of his belief, he claimed informer privilege on the ground that disclosure would endanger life. The Special Criminal Court upheld that claim.
The Supreme Court considered only whether the restriction on cross-examination deprived Kelly of a fair trial. The admissibility of the belief evidence and the Chief Superintendent’s entitlement to claim informer privilege were accepted in the appeal.
Delivering the judgment, Mr Justice Geoghegan preferred the Director of Public Prosecutions’ alternative interpretation of section 3(2): the provision allows evidence about the basis of a Chief Superintendent’s belief, but not to the extent that it interferes with a legitimate claim of privilege. A broader restriction would be disproportionate, he said, and any limit on the accused’s ordinary rights should be kept to a minimum.
The court said the balancing of fair-trial rights and informer protection had to be assessed by the trial court. The Chief Superintendent’s belief had no special status and was simply admissible evidence. The Special Criminal Court could consider both the refusal to disclose the basis of the belief and the other evidence, including what the judgment describes as a false statement by Kelly to gardaí and testimony from other witnesses, particularly David Mooney.
Geoghegan said there was substantial evidence implicating Kelly apart from the belief evidence. He described as commendable the Special Criminal Court’s practice of not convicting on belief evidence alone, while noting that the practice was not an absolute statutory requirement and exceptional cases might justify such a conviction. He also noted the DPP’s stated practice of not starting a prosecution based solely on belief evidence.
The appeal was dismissed. The Supreme Court did not revisit the other evidence or the reasoning supporting the conviction, which had been addressed by the Court of Criminal Appeal.