The Supreme Court dismissed Thomas Redmond’s appeal against the High Court’s rejection of his challenge to section 3(2) of the Offences Against the State (Amendment) Act 1972. In a separate judgment delivered on 17 December 2015, Mr Justice Hardiman said the provision could be read consistently with the Constitution only if belief evidence from a Chief Superintendent was supported by other evidence implicating the accused.
Section 3(2) allows a Chief Superintendent’s belief that an accused person is a member of an unlawful organisation to be admitted as evidence in a membership prosecution. The provision applies while Part V of the 1939 Act, which provides for Special Criminal Courts, is in force.
Hardiman J said the provision seriously reduced the protections normally available to an accused. Where informer privilege is claimed over the basis for the superintendent’s belief, the defence may not know the informants’ identities or the substance of their allegations, making them difficult or impossible to challenge. He also warned that cross-examination could expose the defence to prejudicial material without notice.
The appeal concerned the constitutionality of the provision, not a decision on the evidence or outcome of Redmond’s criminal trial. Hardiman J noted that the Special Criminal Court could, under the law as then interpreted, convict on belief evidence alone, although courts had sometimes declined to do so without supporting evidence. He said that practice alone did not settle the constitutional question.
Hardiman J concluded that section 3(2) was capable of a constitutional interpretation. He said Article 38 required the Chief Superintendent’s belief evidence to be supported by other evidence that implicated the accused, was credible in itself and was independent of the witness giving the belief evidence. He did not require use of the term “corroboration” and said the trial court would decide the weight of the evidence.
On that basis, he would dismiss the appeal. The judgment records the Supreme Court’s dismissal of the appeal; Hardiman J’s stated requirement is his reasoning in a separate judgment.