The Supreme Court has dismissed a challenge to a key section of emergency legislation brought by a former Irish soldier as part of an unsuccessful appeal against his conviction for membership of the IRA.
The ruling clears the way for a number of IRA membership trials, which had been adjourned pending the outcome of the appeal, to proceed at the non-jury Special Criminal Court.
The case centred on the right of persons accused of membership to cross-examine a Garda chief superintendent on the basis of the officer's belief that an accused is a member of an unlawful organisation.
Under the Offences Against the State Act, a Garda chief superintendent's belief is evidence of membership; in practice, however, the belief must be supported by other evidence before the court will convict.
Martin Kelly (49), a former corporal in the Defence Forces, of Westpark, Artane, Dublin, was convicted in November 2003 of membership of an unlawful organisation styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann, otherwise the IRA, on July 29th, 2002, and was jailed for four years.
During the trial, the Special Criminal Court heard that Kelly and another man demanded money from a Dublin businessman to protect his lapdancing club at Crown Alley in Temple Bar. The businessman handed over €15,000 to the two men before going to the gardaí. He said the men told him the money was for the Continuity IRA.
Det Chief Supt Philip Kelly said in evidence that he believed Kelly was a member of the IRA.
Martin Kelly, however, in evidence on his own behalf, denied membership of the Continuity IRA and said he had spent 26 years in the Defence Forces.
The Court of Criminal Appeal turned down Kelly's appeal but certified that a point of law raised by his lawyers should go to the Supreme Court for consideration.
Dismissing the appeal, Mr Justice Nial Fennelly, in a unanimous judgment supported by all five judges, said that the right to cross-examine one's accusers is an essential element in a fair trial. However, that did not mean that restrictions may not be imposed in the interests of overall balance and the efficiency of the criminal justice system.
He said the use of the evidence of the chief superintendent applied only to organisations that represent a threat, not only to the institutions of the State, but to individuals who were prepared to co-operate with the State in securing the conviction of members of such organisations. This made it possible to justify some restrictions to direct access on behalf of the accused to the identity of his accusers.
The judge said that the legislature has allowed such evidence to be given by members of the Garda Síochána of particularly high rank, who can be presumed to have been chosen for having high standards of integrity. The offence is a scheduled one where the cases would only be heard in the Special Criminal Court, a court composed of judges who must be presumed to apply only the highest standards of fairness, he added.
The judge said that there was quite extensive evidence, other than the evidence of the chief superintendent, which convinced the Special Criminal Court that Kelly was a member of the IRA.
The court had taken into account that the chief superintendent had claimed privilege relating to his evidence but did not explain this remark any further, Mr Justice Fennelly noted.
The SCC should have explained the weight it attached to the evidence of the senior Garda officer, Mr Justice Fennelly said. However, in the particular circumstances of the trial, he did not think there was any overall unfairness.
"I do not think that the undoubted restriction on the rights of the accused went further than was strictly necessary to protect other potential witnesses or informants," he found.