The Court of Criminal Appeal dismissed Terry McConnell’s application for a certificate allowing an appeal to the Supreme Court, finding that the proposed ground did not meet the statutory test under section 29 of the Courts of Justice Act 1924.
The application concerned the court’s 25 July 2012 decision on McConnell’s appeal. He sought to raise whether the Special Criminal Court’s handling of a defence disclosure request and the prosecution’s claim of privilege over informer identity made his trial unfair under Article 6 of the European Convention on Human Rights.
The court said the proposed question was framed too imprecisely. It also said that, even on a generous interpretation, the argument could not satisfy a basic requirement for certification: if successful, it must be capable of leading to the verdict being overturned.
During the trial, the prosecution had denied that it held undisclosed material. A Garda witness was later questioned about whether named people were informers. The witness initially denied knowing the identity of informers, then claimed privilege when pressed. The Special Criminal Court allowed the claim. The judgment said the defence did not challenge it at the time, and the trial court was never asked to inspect documents.
The court addressed the underlying argument that a trial court’s inspection of documents covered by privilege could be incompatible with Article 6 if the defence could not see material the court considered. It held that this procedure had not been used in McConnell’s case, so a challenge to it could not establish that his trial was unfair. The court also rejected the suggestion that the issue was not pursued because the procedure was inevitable: the judgment said alternatives had been contemplated in an earlier case, and McConnell could have made submissions and challenged any ruling at trial and on appeal.
The court stressed that its decision did not determine the appropriate procedure for privilege claims in future Special Criminal Court trials. It dismissed the certificate application, without resolving that broader question.