The Criminal Courts of Justice
A Louth man who spent 14 months in prison for IRA membership before his conviction was overturned suffered a "classic case of miscarriage of justice", his lawyers have said.
In a retrial in 2019, Michael Connolly was acquitted of IRA membership after the non-jury Special Criminal Court found it could not rely on the belief evidence of a Garda Assistant Commissioner as being independent from the investigation.
Mr Connolly (47) of Grange Drive in Dundalk, County Louth, had pleaded not (NOT) guilty to membership of an unlawful organisation, styling itself Oglaigh na hEireann, otherwise the Irish Republican Army, otherwise the IRA on December 16, 2014.
In June 2019, the three judges of the Special Criminal Court found that it could not be satisfied that the belief evidence given by Garda Assistant Commissioner Michael O’Sullivan was independent of the evidence upon which the prosecution relied on in order to support that belief.
Delivering judgment on that date, Mr Justice Paul Coffey, presiding, sitting with Judge Sinéad Ní Chúlacháin and Judge James Faughnan, said the three-judge panel could not "have the confidence that we would need beyond a reasonable doubt that the Assistant Commissioner did not base his belief on the events of December 16".
It was the prosecution’s case that Mr Connolly was observed by Gardaí driving in convoy with another man, who was then found with two improvised explosive devices (IEDs).
However, the defence contended that events arising from the date in question was not independent evidence and fell foul of the rule against double counting.
In its ruling, Mr Justice Coffey said that the onus was on the prosecution to produce “clear and unambiguous” evidence that the officer is cognisant of the rule against double counting.
At yesterday's (Monday march 22nd), hearing, Hugh Hartnett SC with Philip Rahn BL and instructed by David Thompson Solicitors argued that the applicant’s conviction on June 1 2017 (the first trial) was a miscarriage of justice and it was based in the main part on the belief evidence of Asst Comm O’Sullivan and evidence of the applicant’s movements on December 16, 2014.
It had transpired that this was in breach of the rule against “double counting”, said the barrister, and he submitted that on the balance of probabilities, the belief evidence of the Asst Comm was formed amongst other things by reference to an extract on the intelligence file summarising the movements and activities of Mr Connolly on December 16, 2014.
This newly-discovered fact, which Mr Hartnett submitted showed the conviction to have been a miscarriage of justice, came to light during the re-trial by reason of the court’s ruling on May 22, 2019 that the relevant extracts from the intelligence files be disclosed to the defence. Furthermore, the applicant had spent 14 months and 22 days in custody on foot of this matter, he remarked.
The lawyer said that before and during the first trial the applicant had sought disclosure of the intelligence file upon which the Asst Comm had based his belief but the investigating and prosecuting authorities had declined this request for disclosure and claimed privilege. The trial court in the first trial had upheld the privilege claimed and declined to review the intelligence file, he outlined.
"If ever there was a glaring miscarriage it is that,' he added.
In June 2018, the Court of Appeal set aside the conviction on the basis that the first trial-court had erred in the circumstances of the case in refusing to examine the materials upon which the Asst Comm had formed his statutory belief and a re-trial was ordered.
Mr Hartnett said the re-trial of the applicant commenced in April 2019, where the Asst Comm again gave belief evidence and claimed privilege over the intelligence file which formed the basis of his belief. The Asst Comm maintained that in forming his belief he did not have regard to any matters contained in the book of evidence, such as Mr Connolly's conduct on December 16, 2014.
The barrister said the three-judge panel in the re-trial examined the intelligence file and ordered the disclosure of two relevant extracts.
One of these summarised the relevant movements or activities of the Applicant on December 16, 2014.
“This was in direct contradiction of the evidence of the Asst Comm in the previous trial that nothing from the book of evidence was contained on the file he examined. This extract had been ticked in the fashion described by the Asst Comm,” he said.
Mr Hartnett said Mr Connolly was acquitted in the retrial and the court was satisfied in reaching its verdict “that there must be at least a reasonable possibility that the Assistant Commissioner considered and relied upon the relevant matters when forming his belief”.
The court could not accept that the circumstantial evidence relating to December 16 2014 provided independent evidence to support that belief evidence of the Asst Comm, which therefore effectively stood alone and an acquittal followed, he added.
Regarding yesterday's, Monday's application, Mr Hartnett said the fact which was newly discovered by the applicant at the re-trial was that the Asst Comm did indeed read and consider the contents of the extract of the intelligence file relating to Mr Connolly’s conduct on December 16, 2014, when forming his belief and that the claim of privilege in respect of the material was unfounded.
The lawyer submitted that this fact was newly discovered in the second trial, which breached the rule against “double counting” and tainted the belief evidence which led to the wrongful conviction of the applicant in the first trial, which he said amounted to a miscarriage of justice.
He said this matter was of "great and grave significance" and the first trial was "marred" by a shortcoming in the administration of justice.
"If ever there was unconstitutionality it was here," he said, adding that the three-judge panel must now look back at the first trial to see if there had been a miscarriage of justice as there was a deliberate decision not to impose safeguards.
There was an unfounded claim of privilege in the first trial and as a result matters discovered in the second trial went "undiscovered", he said. "This is a classic case of a miscarriage of justice and we don't need to prove anything else such as innocence, we just need to prove that there was a flaw or failure in the administration of justice," he concluded.
In reply, Fiona Murphy SC on behalf of the Director of Public Prosecutions said the court must be satisfied that on foot of the newly discovered fact that there had been a miscarriage of justice.
"It is certainly the case that courts have made it clear that simply because a conviction was quashed by the Court of Appeal or someone was acquitted on a retrial it doesn't automatically follow that a certificate of a miscarriage of justice should be issued," she argued.
Counsel said she accepted that the newly discovered fact were the documents disclosed by the court but disputed that the newly discovered fact was one that would show there was a miscarriage of justice in the case.
Ms Murphy submitted that there was no finding either beyond reasonable doubt or even upon the balance of probabilities that double counting was engaged in or that the Asst Comm had acted in any way inappropriately.
She said the court needed to be satisfied on the balance of probabilities that there had been double counting and the applicant in this case had not reached the test.
The barrister submitted that to seek a miscarriage of justice certificate was ill conceived and the relief sought ought to be refused.
Mr Justice Paul Coffey, presiding, sitting with Judge Sinead Ni Chulachain and Judge James Faughnan, reserved judgment.