The European Court of Human Rights has ruled that a Dublin man’s right to a fair trial was not violated by procedures adopted by the
Special Criminal Court
in which the judges were given access to information which was not disclosed to the defence.
Kenneth Donohoe was sentenced to four years in prison after being convicted of IRA membership in 2004. His conviction was based, among other things, on evidence given by a Garda chief superintendent, who testified that it was his belief Mr Donohoe was a member of the IRA.
When asked to identify the sources of his belief, the chief superintendent claimed privilege, saying that disclosure of this information would endanger lives and State security. The non-jury Special Criminal Court instead reviewed the Garda files to be satisfied as to the reliability of his belief, but neither the prosecution nor the defence had access to the confidential material.
In his case to the Strasbourg court, Mr Donohoe complained the non-disclosure had made his trial unfair as it seriously restricted his defence rights.
Protecting human life
Finding unanimously against Mr Donohoe yesterday, the chamber of seven judges said the Irish court had upheld the non-disclosure of sources for the legitimate purpose of protecting human life and State security.
It said the decision to convict had been reached with the support of additional evidence which corroborated the senior garda's belief and that there had been a number of safeguards in place during the trial to ensure the non-disclosure of Garda sources would not undermine the fairness of the proceedings.
Suspicious activity
Mr Donohoe's trial heard that, on October 2nd, 2002, gardaí noticed suspicious activity among three parked vehicles – a Nissan Almera, a Nissan Micra and a transit van – in Corke Abbey housing estate in Bray, Co Wicklow.
After investigating, they found two men dressed as gardaí in the back of the van and a number of incriminating items in the van and the Almera, including balaclavas, Garda uniforms, a stun gun and a canister of CS gas. Five men were arrested and charged with being members of an illegal organisation.
Mr Donohoe was not among them. However, the Micra, which had left the estate, was traced back to his partner, leading to a Garda search of his home. Papers were found there containing the phone numbers of the owner of the Almera and of the man who had been sitting in the driver’s seat of the van.
Confidential information
At Mr Donohoe's trial, the superintendent said that, independently of any evidence found at the incident in the housing estate or in Mr Donohoe's home, it was his belief Mr Donohoe was a member of the IRA.
He told the court this was based on confidential oral and written information available to him from police and civilian sources.
Mr Donohoe later sought leave to appeal. Following a hearing the Court of Criminal Appeal refused leave to appeal.
In October 2007, the Court of Criminal Appeal, following another hearing, also refused Mr Donohoe's application for his appeal to be taken to the Supreme Court.
