The High Court has rejected a challenge by Thomas Redmond to the law allowing a senior Garda officer to give evidence that he believes an accused person is a member of an unlawful organisation.
Redmond was convicted by the Special Criminal Court on April 22, 2002 of membership of an unlawful organisation and sentenced to four years in prison. The Court of Criminal Appeal later refused leave to appeal his conviction and, in July 2004, refused a certificate for a further appeal to the Supreme Court.
At his trial, a Chief Superintendent stated under section 3(2) of the Offences Against the State (Amendment) Act 1972 that he believed Redmond was a member of an unlawful organisation. He declined to disclose the material underlying that belief, saying it was confidential and privileged.
Redmond subsequently brought High Court proceedings claiming that section 3(2) breached constitutional fair-trial protections and the European Convention on Human Rights. He argued, among other matters, that an accused could not properly test the evidence or effectively challenge undisclosed material.
Mr Justice McMahon rejected the constitutional challenge. He held that existing Supreme Court authority established that a Chief Superintendent’s belief is evidence, not a presumption of guilt. The prosecution still bears the burden of proving its case beyond reasonable doubt, while the trial court decides what weight to give the belief evidence.
The judge acknowledged that withholding the underlying material can place an accused at a disadvantage. However, claims of privilege may be justified by competing interests such as protecting life, informants and State security. The trial court can examine disputed material itself where necessary and must ensure that any restriction does not undermine the overall fairness of the trial.
McMahon J also held that Redmond could not rely directly on the European Convention on Human Rights Act 2003 because his trial and criminal appeals predated that Act taking effect.
As the legislation was upheld, the court did not set aside Redmond’s conviction or consider damages.