A man who agreed to assist in a dissident Republicans punishment shooting or knee-capping which, unkown to him, was to be a “deliberate execution from the word go”, has had his murder conviction upheld by the Court of Appeal.
Martin Kelly (42), of Barrack St, Strabane, Co Tyrone, had pleaded not guilty to the murder of Andrew Burns at Donnyloop, Castlefin, Co Donegal on February 12th, 2008.
The non-jury Special Criminal Court found Kelly guilty of the murder and gave him the mandatory sentence of life imprisonment on January 24th, 2012.
The Special Criminal Court heard that Mr Burns was shot twice in the back by a gunman linked to the dissident republican group, Óglaigh na hÉireann, in a church car park. Both Kelly and Mr Burns were associated with that group.
The Court of Appeal upheld Kelly’s conviction on Wednesday. However, the three-judge court noted that one ground of appeal raised by Kelly’s lawyers was “novel” and of “clear importance”.
Counsel for Kelly, Giollaíosa Ó Lideadha SC, submitted that his client should not have been convicted of murder where there was a fundamental difference between what Kelly had contemplated would happen and a deliberate shooting to kill.
Mr Ó Lideadha said the contemplated plan as far as Kelly was concerned, a kneecapping and order to Mr Burns to leave the jurisdiction in 48 hours, was not what actually happened.
It was accepted that Kelly had agreed to drive Mr Burns to the Church car park on an erroneous pretext where three dissidents would deliver a punishment shooting or knee-capping.
However, it was to be a “deliberate execution from the word go”, Mr Ó Lideadha said, and Kelly had no knowledge, foresight, intention or realisation of that.
The was also a fundamental difference between shooting at the knee and shooting at somebody’s chest, Mr Ó Lideadha submitted.
Dismissing Kelly’s appeal on Wednesday, Mr Justice George Birmingham said “the issues raised by this ground of appeal are not only novel, but clearly important”.
If Mr Ó Lideadha was correct, then it was “hard to see how someone who causes death, but had not intended to kill should be guilty of murder, but such a person unquestionably is,” the judge said, “if the intention was to cause serious harm”.
“Likewise, it would be hard to see that co-accused should all be responsible for the consequences flowing from the actions of all, including unforeseen consequences, but again that is the law”.
It had long been the position in Ireland that a murder conviction is recorded if there was an intention to cause at least serious harm and death results, Mr Justice Birmingham said, and that the Special Criminal Court correctly approached the matter.
Kelly had brought the victim to the Church car park with the intention that he would suffer serious injury: that he would be shot.
In fact he was shot and even if it cannot be proved that a shooting with intention to kill had been contemplated by Kelly, “he is nonetheless guilty of murder”.
There was no doubt that Kelly rendered assistance to those who carried out the murder both before and after the shooting.
While undoubtedly there was a distinction between what Kelly says was agreed and what occurred, the court did not accept that this was so fundamental a departure as to absolve Kelly from responsbility for the murder.
Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, dismissed a number of other grounds and accordingly dismissed the appeal.
Mr Ó Lideadha indicated that an appeal to the Supreme Court was being contemplated.
The Court of Appeal had received further submissions from the parties in light of the UK Supreme Court decision on the doctrine of joint enterprise known as ‘Jogee’.
Mr Justice Birmingham said the point of central significance in ‘Jogee’ did not have direct relevance to Irish law.
In ‘Jogee’, the UK Supreme Court and the Privy Council were being asked to “correct a wrong turning” UK jurisprudence had taken “which had then fed into many other decisions over the past 30 years”.
“However, it is important to realise that Irish law never took that wrong turning.” The focus of Irish law has remained on intention rather than forseeability.
Mr Justice Birmingham said the development of the law of murder in Ireland over the years “involved elements of public policy”.
The fact that an intention to cause serious injury was sufficient to make out the required mental intent for murder was a recognition of the fact that in many cases, even where it was highly probable that there was in fact an intention to kill, that it would not be possible to prove that was the intent.
The policy adopted is a pragmatic one that was deeply rooted and long established, Mr Justice Birmingham said.