About a month ago, Kenneth Donohoe was convicted for being a member of the IRA. The IRA, or Irish Republican army, dates back to the early 1920’s and were originally a parliamentary organization that sought to remove Northern Ireland from the United Kingdom. Recently, they have been linked to organized crime and criminal activities such as racketeering, bank robbing, fraud, money laundering, drug dealing, and kidnapping.
In November 2004, Donohoe was tried before Ireland’s Special Criminal Court who found him guilty and imposed a sentence of four years in prison. The Chief Superintendent P.K gave a key piece of the prosecution’s evidence. He claimed that it was his belief that Donohoe was a member of the IRA. He told the court that his belief was based on confidential information of oral and written nature that was available to him from police and civilian sources. The Special Criminal Court directed the Chief Superintendent to produce all relevant documentary sources, which formed the basis of his belief, and it reviewed those files in order to be satisfied as to the reliability of his belief. Neither the prosecution nor the defence had access to that confidential material.
However, he refused to identify those sources claiming privilege because disclosure would endanger human life and State security. Donohoe inquired to have the sources disclosed, arguing, “that the trial would be unfair if he did not know these courses and the evidence against him.” The trial judges reviewed the inquiry and the confidential files in order to satisfy the reliability of the Superintendent’s sources. Eventually, the Court of Criminal Appeal refused Donohue’s application for his appeal to be taken to the Supreme Court.
Donohoe’s complaint stated that the non-discloser of the confidential sources had restricted his deference and that the trial court’s review of that material was inadequate, under Article 6. He also claimed that the trial court’s review excluded effective safeguards “to ensure that the material could be evaluated in a way which did not prejudice his right to a fair trial.” Donohoe believed that it was unfair for the trial court to have access to material which “he alleged was persuasive of his guilt but to which he . . . had been denied scrutiny of any kind, the SCC review of the material having been held in private.”
The court found that “the justifications given – of protecting human life, namely, persons in danger of reprisals from the IRA and State security as well as the effective prosecution of serious and complex crime – had been compelling and substantiated and that the non-disclosure had therefore been necessary.”
Further, the court stated that they had upheld the non-disclosure of sources for “the legitimate purpose of protecting human life and State security; the decision to convict had been reached with the support of additional evidence which corroborated PK’s belief; and, there had been a number of safeguards in place during the trial to ensure that the non-disclosure of PK’s sources would not undermine the fairness of the proceedings.” For those reasons stated, the court ruled that the non-disclosure of the sources had not made this trial unfair.
Do you believe that this was the correct ruling by the court? If not, what other factors should have been weighed? If so, do you believe the court correctly applied the balancing test, or could they have possibly overstepped?
Something feels unfair here. While I believe that it is highly probable that this evidence promulgated by the superintendent corroborated with the fact that Donohoe was in the IRA, I can’t agree with Donohoe not being able to evaluate the evidence or even know what it is. Donohoe should be allowed a chance to defend himself as to evidence against him. If the disclosure of such evidence would lead to the danger of human life, than it really just shouldn’t be allowed to be considered by the decision maker. I don’t know how the material could be evaluated in a way that would not prejudice Donohoe’s right to a fair trial if he is not even allowed a chance to defend himself. I would never condone the bad acts committed by the organization, but the entry into evidence of material kept secret in this matter has an aura of unfairness.
It seems to me to be a basic in camera review by the court. Courts do this all the time, especially when a claim of State security or the threat to human life is involved. If they found the evidence lacking or unreliable, they would have disregarded. Moreover, what does “key piece of evidence” actually mean? Was this the determining factor of his guilt? How much weight was it given? These all seem like important questions to ask when we consider the fairness or lack thereof of the evidence being considered. I think a review of the factual record of the trial and the rules of evidence with respect to this tribunal in Ireland need to be reviewed before we can comment or make a decision on the matter.
Also the sentence of four years for being a member of the IRA seems to be quite arbitrary as well. Does it depend on any level of involvement?