The Special Criminal Court should not have ruled that a man who spent 14 months in prison on an IRA membership charge was the victim of a miscarriage of justice, the Director of Public Prosecutions (DPP) has told the High Court.
Michael Connolly (49) was acquitted by the Court of Appeal in 2018 and found not guilty the next year following a retrial at the Special Criminal Court.
In April 2021, the non-jury court declared there was a miscarriage of justice and a “grave defect” in the administration of justice in the case brought about “by agents of the State”.
The DPP has taken High Court judicial review proceedings seeking to quash the finding, which entitles Mr Connolly to apply to the Minister for Justice for compensation.
On Thursday, the DPP’s senior counsel, Brendan Grehan, told the High Court there was a “fundamental error” in how the Special Criminal Court approached its decision to grant a miscarriage of justice certificate.
Such an order, which is extremely rare, should only be given to someone who is “factually innocent”, he said. Legal innocence involves someone being found not guilty, while factual innocence is where it can be proved a person is not guilty of an offence, he said.
In this case, Mr Grehan said, the Special Criminal Court that acquitted Mr Connolly nevertheless made a finding of fact that, beyond reasonable doubt, circumstantial evidence “tended to implicate” him in the transportation of two improvised explosive devices a decade ago.
The Special Criminal Court acquitted Mr Connolly after finding it could not rely on the “belief evidence” of the Garda assistant commissioner as being independent from the investigation. It, unlike other courts, can accept the belief evidence of high-ranking gardaí if it is based on material that is independent to other evidence before it.
Mr Connolly, of Grange Drive in Dundalk, Co Louth, had pleaded not guilty to membership of the IRA after he had been observed by gardaí driving in a convoy on December 16th, 2014, with another man who was then found with two improvised explosive devices.
It emerged during the retrial that the basis for assistant commissioner Michael O’Sullivan’s belief evidence was also contained in the book of evidence against the accused, resulting in a danger of it being “double-counted”.
The Special Criminal Court said Mr O’Sullivan made a “careless” assertion during the trial that none of the material forming his belief was in the book of evidence. The assertion was “seriously incomplete and misleading”, the court said.
On Thursday, Mr Grehan told the High Court the Criminal Procedure Act of 1993 provides for “limited” circumstances in which compensation can be made to people who were wrongly convicted.
A civil application made under section 9 of the Act bears the onus of establishing the applicant has been a victim of a miscarriage of justice, he said. The careless actions of the garda did not give rise to a “grave defect” in the administration of justice, which could only arise as a result of a deliberate act, he said.
Asked by Mr Justice Garrett Simons if the DPP was attempting to “gainsay” the acquittal, Mr Grehan said she was not.
“The DPP accepts the accused was acquitted of the criminal offence and is not guilty of the criminal offence.”
Representing Mr Connolly, senior counsel Hugh Hartnett said the court was being asked to make “some sort of half finding” that is not in accordance with the constitutional principle of the presumption of innocence.
His client twice asked the Special Criminal Court to look at the intelligence file in the prosecution’s case.
The court refused during his initial trial, accepting an “incorrectly made” plea of privilege over the records, said Mr Hartnett. During the retrial, the court found material in the file that was “clearly germane” to the case and that was “contradictory” to the assistant commissioner’s evidence, he added.
The Special Criminal Court said the original trial court would have felt compelled to acquit Mr Connolly if this material was before it, he added.
No explanation was provided for how such an error could have been made, he said, adding that the role of a senior garda giving belief evidence is a “highly responsible” one.
Mr Hartnett said the DPP has failed to show the miscarriage of justice declaration was made in error or was unreasonable or irrational.
After hearing most of the submissions, Mr Justice Simons said he regarded as “extremely serious” a statement in the DPP’s written submissions that said the Special Criminal Court made a specific finding of fact against Mr Connolly.
Her lawyers said the finding was more “nuanced” than her wording suggested but she was not resiling from the submissions.
Dissatisfied with the response, the judge directed the DPP to file amended submissions explaining whether she stands over the statement. He adjourned the case to be mentioned next month.