The Court of Criminal Appeal has refused challenges brought by Terry McConnell and Cormac Fitzpatrick to their convictions over possession of explosive materials found in a Clondalkin apartment in September 2008.
The appeals arose from a Special Criminal Court trial. The appeal court dealt with separate issues raised by each man. It refused McConnell’s application concerning disclosure and informer privilege. It also refused Fitzpatrick leave to appeal, despite finding that police had not provided the solicitor consultation opportunity required before relying on a statutory inference from his failure to account for items.
McConnell argued that the prosecution’s position on disclosure and the procedure for resolving privilege claims made his trial unfair under Article 6 of the European Convention on Human Rights. The court said the disclosure issue was raised late and broadly during the trial. Although the prosecution initially claimed privilege in response to a request about whether named people had acted for the State, it later said there was no such material in existence for disclosure. McConnell did not challenge a specific privilege claim, and the trial court inspected no documents. The appeal court therefore held that the procedural issue he sought to raise did not arise on the facts of his case.
Fitzpatrick challenged the trial court’s assessment of evidence that he dropped an alarm clock, the finding that he possessed the items, and the use of his failure to account for them. The appeal court said there was sufficient evidence for the trial court to find that he dropped the clock and to infer knowledge and control from the circumstances. It noted he was in the apartment’s bathroom with bomb-making materials, wearing latex gloves, and that the trial court rejected his explanation for being there.
On the statutory issue, the appeal court held that a reasonable opportunity to consult a solicitor must be linked to the request under section 18 of the Criminal Justice Act 1984. Fitzpatrick had consulted his solicitor several times while detained, but after section 18 was invoked he was not given another opportunity to consult, despite saying he did not want to answer until he had done so. The court found the procedure fell short of the section’s requirements.
However, applying the Criminal Procedure Act 1993, the court concluded that the section 18 inference had played no part in the trial court’s assessment. It described the remaining evidence as direct and compelling and held that no miscarriage of justice had occurred. It refused Fitzpatrick leave to appeal. The judgment was delivered on 25 July 2012.