The Supreme Court has dismissed James Joseph Cassidy’s appeal against his conviction for membership of the IRA, finding that the trial court did not impermissibly count evidence twice and was entitled to find the charge proved beyond reasonable doubt.
In a judgment delivered on 13 September 2021, Ms Justice Iseult O’Malley said the Special Criminal Court had correctly treated evidence about events before Cassidy’s arrest as relevant to whether interview questions were material, while disregarding that evidence when deciding whether there was independent support for a Garda chief superintendent’s belief evidence.
The prosecution case included the chief superintendent’s evidence that he believed Cassidy was an IRA member on 21 September 2016. He claimed privilege over the sources of his information. The Supreme Court noted that the claim was broad and significantly restricted the defence’s ability to test the basis of the belief. It said a broad privilege claim calls for reduced weight to be given to the belief and correspondingly strong supporting evidence.
The trial court found that support in evidence including a drilled steel tube, identified at trial as an improvised explosive device component, found in a shed Cassidy used; a USB key used in an attempt to save a video about extracting ammonium nitrate from fertiliser; two sequentially numbered mobile phones; and inferences drawn from answers the court found false or misleading. The Supreme Court said the evidence about the tube, USB key and interviews presented a linked pattern, rather than a series of coincidences.
Cassidy argued that questions about pre-arrest associations and a meeting in Newry had let evidence the trial court had set aside for one purpose back into the case through the inferences drawn from his answers. He also challenged the fairness of the trial given the limits on cross-examination. The Director of Public Prosecutions argued that the material had not been excluded as inadmissible; it was disregarded only when assessing independent support for the belief.
The Supreme Court held that evidence may be considered for one purpose and disregarded for another. It found that the trial court used the association and Newry evidence to assess whether interview questions were material, not as independent evidence supporting the chief superintendent’s belief. The court accepted the trial court’s finding that the chief superintendent had not based his belief on Cassidy’s interview answers.
The Court said it was not determining the proper limits of privilege claims generally. It concluded that, in this case, the trial court had required strong support in light of the privilege claim and had been entitled to find that standard met. The appeal was dismissed; the conviction remained in place.