Legal first sees miscarriage of justice certificate for IRA membership conviction quashed

Fiona Magennis

In a legal first, the Court of Appeal has overturned a decision to grant a miscarriage of justice certificate to a man who spent 14 months in prison before his IRA membership conviction was quashed.

In delivering judgment on Friday, Judge Brian O’Moore said the granting of the certificate to Michael Connolly was not one of the options properly open to the Special Criminal Court and represented a fundamental error in law.

The DPP had appealed a High Court decision dismissing her application for a judicial review of the SCC’s ruling that Connolly was a victim of a miscarriage of justice.

Connolly, who is in his 50s, had denied a charge of IRA membership, brought after he was observed by gardaí driving in convoy on December 16th, 2014, with another man who was then found with two improvised explosive devices.

His original conviction in the Special Criminal Court (SCC) in 2017, where he was sentenced to three years imprisonment, was subsequently overturned by the court of Appeal in 2018. Connolly, last of Grange Drive, in Dundalk, Co Louth, was acquitted of the membership charge following a retrial at the SCC in 2019.

Connolly's original conviction in the non-jury court was based on belief evidence given by a senior Garda that the defendant was a member of the IRA. The SCC can accept the belief evidence of high-ranking gardaí in membership cases, as long as it is based on material that is independent to the evidence before the court.

It emerged in Connolly’s case that the basis for an assistant garda commissioner’s belief evidence was also contained in the book of evidence against the accused.

This, it was claimed, resulted in the belief evidence being in breach of the “double-counting” rule.

This rule requires that belief evidence is supported by evidence that is wholly extrinsic. The breach of the rule resulted in Connolly's acquittal of the membership charge.

Delivering judgment on Friday,  O’Moore held that the SCC made an error in principle in deciding that what had occurred at the original trial was capable of sustaining a finding that a miscarriage of justice had occurred.

He said the fact that the senior garda was “careless” in giving his evidence, whilst “regrettable”, was not a basis for granting a certificate.

“The grant of the certificate was not one of the options properly open to the SCC,” he said. “The decision to grant the certificate was therefore one which was unreasonable.”

This constituted “a fundamental error of law” on the part of the SCC in assessing what circumstances could constitute a miscarriage of justice, the judge said.

“I would therefore grant the director an order quashing the grant by the SCC of a certificate pursuant to section 9 (1) 9a) (ii) of the Criminal Procedure Act 1993.”

In June 2024, the SCC formally deemed that Connolly's conviction was a miscarriage of justice and held that there had been "a grave defect in the administration of justice brought about by agents of the State".

It found that the assistant commissioner had made “an unqualified assertion” during the trial that none of the material that formed the basis of his belief was in the book of evidence against the accused.

The SCC described this assertion as “seriously incomplete and misleading”.

However, the court found there was no evidence that the assistant commissioner made his assertion in the knowledge that it was misleading and there could not be any such evidence, as he had no knowledge of what was in the Book of Evidence.

In a High Court challenge brought against the SCC's decision, the DPP claimed there was evidence, establishing beyond a reasonable doubt, implicating Connolly in the transportation of two improvised devices. This made the decision regarding the miscarriage "unsustainable", the DPP submitted.

The miscarriage finding was made despite the fact there was a proper basis for the prosecution, it was argued, while there was no finding of improper, deliberate action on the part of the State in the conviction of Connolly.

The State underlined that there was no right of appeal against the SCC's decision and the only way to challenge it was by way of judicial review proceedings. In December 2023, however, the High Court dismissed the Director’s application for judicial review.

Appealing this decision at the Court of Appeal in December 2024, Brendan Grehan, for the DPP, argued that the appeal should be allowed, the order of the High Court be set aside, and the order of the Special Criminal Court be quashed.