The Court of Criminal Appeal has quashed Sean Farrell’s conviction for membership of an unlawful organisation after finding that a Garda Chief Superintendent gave unnotified evidence about alleged activity spanning nearly 10 years.
Mr Farrell was convicted by the Special Criminal Court on 18 May 2012 of membership of an organisation styling itself the Irish Republican Army, otherwise known as Óglaigh na hÉireann. The charge concerned alleged membership on 7 July 2011.
The prosecution relied on the statutory belief evidence of Chief Superintendent Diarmuid O’Sullivan, who said he believed Mr Farrell was a member on the date charged. His notified statement said the belief was based on confidential information. He told the trial court that his belief was not based on matters arising from the arrest or investigation.
During cross-examination, however, Chief Superintendent O’Sullivan said he had known Mr Farrell since 2001 or 2002 and believed him to be an IRA member from then. He referred to a “litany” of incidents over a period of years and said his belief rested on intelligence and technical information. The defence had not been notified of those claims in advance and argued that it could not effectively test them.
The State argued that the case differed from an earlier appeal in which undisclosed material had been used to cross-examine the accused. It also submitted that the defence could have sought disclosure during the trial.
The appeal court rejected the argument that the defence had engineered the evidence: the claims were volunteered in answers to questions that did not call for them. It said the defence had conducted its cross-examination prudently and that the purpose of prior notice was to give an accused a fair opportunity to answer allegations.
The court held that if the prosecution intended to rely on details supporting a Chief Superintendent’s belief, those details had to be set out in the served evidence statement, with disclosure obligations considered. If additional evidence was to be relied on after it emerged at trial, the prosecution had to seek leave to serve it, on terms the court considered appropriate. Otherwise, the extra material should be disregarded.
The court quashed Mr Farrell’s conviction. The judgment does not record an acquittal or determine the charge after the appeal; its order was to quash the conviction.