26 Jan 2022

High Court challenge decision to deem Dundalk man's prosecution before the Special Criminal Court a miscarriage of justice

Special Criminal Court

Special Criminal Court

A High Court challenge has been brought by the DPP against the Special Criminal Court's decision to deem, after a retrial, a man’s conviction of membership of an unlawful organisation a miscarriage of justice.

The court made the finding in respect of 47-year-old Michael Connolly, of Grange Drive in Dundalk, Co Louth, who spent some 14 months in prison. 

He had denied a charge of IRA membership, brought after he was observed by gardaí driving in convoy on December 16th, 2014, with another man who was then found with two improvised explosive devices. 

His original conviction in the Special Criminal Court (SCC) in 2017, where he was sentenced to three years imprisonment, was subsequently overturned by the court of Appeal in 2018.

Mr Connolly was acquitted of the membership charge following a retrial at the SCC in 2019.

His conviction in the non-jury court was based on belief evidence given by a senior Garda that he was a member of the IRA.

The SCC can accept the belief evidence of high-ranking gardaí in membership cases as long as it is based on material that is independent to the evidence before the court.

It emerged that in Mr Connolly’s case that the basis for Assistant Commissioner Michael O’Sullivan’s belief evidence was also contained in the book of evidence against the accused.

This, it was claimed, resulted in the belief evidence being in breach of the “double-counting” rule.

This rule requires that belief evidence is supported by evidence that is wholly extrinsic and outside of the matters relied on in the formation of the belief evidence.

The breach of the rule resulted in Mr Connolly's acquittal of the membership charge.

On June 14th last the SCC formally deemed that Mr Connolly's convictions was a miscarriage of justice.

The SCC held that there had been "a grave defect in the administration of justice brought about by agents of the state".

It found that the assistant commissioner had made “an unqualified assertion” during the trial that none of the material that formed the basis of his belief was in the book of evidence against the accused.

The SCC described this assertion as “seriously incomplete and misleading”.

At the High Court on Monday Brendan Grehan SC for the DPP said that the SCC's decision was flawed and should be set aside.

The DPP accepted that there was a reasonable possibility that the Assistant Commissioner considered and relied upon non-extrinsic measures when forming his belief.

It was the DPP's case the Mr Connollys acquittal was only based on the reasonable possibility that double counting could not be excluded.

There was evidence, establishing beyond a reasonable doubt, implicating Mr Connolly in the transportation of two improvised devices, the DPP claims.

This makes the SCC decision regarding the miscarriage "unsustainable."

The miscarriage finding was made despite the fact there was a proper basis for the prosecution.

There was no evidence that the Assistant Commissioner made his assertion to the SCC in the knowledge it was misleading, the DPP says.

There was no reasonable basis for the SCC to conclude that there had been a miscarriage due to a grave defect in the administration of justice brought about by agents of the state, the DPP also claims.

There was no finding of improper deliberate action on the part of the state in the conviction of Mr Connolly, the DPP adds.

Counsel said that there was no right of appeal against the SCC's decision, and the only way to challenge it was by way of judical review proceedings.

In its action against the SCC and Mr Connolly, the DPP seeks an order setting the finding that there was a miscarriage of justice quashed.

The DPP also seeks a declaration that the decision made by the SCC was made in excess of that court's jurisdiction, and is irrational, unreasonable and disproportionate.

Mr Justice Meenan, who considered the application on an ex-parte basis, directed that the application for permission to bring the application be made on notice to the respondents. 

The judge also placed a stay on the decision.

The stay he said was on the terms including that the respondents, on a week's notice to the DPP, could come to court seeking to have the stay lifted.

The case will return before the court in October.

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