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Five people jailed over their roles in an IRA “inquiry” of suspected informants carried out at a house in Dublin have lost their Supreme Court appeals against their convictions.
The appeals raised legal issues concerning the treatment of bugging or surveillance evidence and the interpretation of the Criminal Justice Surveillance Act 2009.
The group was convicted of helping the IRA carry out interrogations of other members in 2015 after gardaí foiled a number of operations.
The Garda­ National Surveillance Unit had set up listening devices in a house in Castleknock and recordings of the interrogations were used to prosecute four men and one woman. All five denied the charges against them but were convicted at the non-jury Special Criminal Court in June 2018.
Three were convicted of membership of an unlawful organisation, styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann, otherwise the IRA, on August 8th, 2015.
Sean Hannaway, Linden Gardens, Belfast, aged in his 40s, was jailed for five and a half years. David Nooney, Country Green, Ballymun, Dublin, aged in his 50s, was jailed for three years and nine months and Edward O’Brien, Hazelcroft Road, Finglas, Dublin, aged in his 40s, jailed for 16 months.
Two others — Kevin Hannaway, aged in his 70s, of Colinmill, Belfast and Eva Shannon, aged in her 60s, of Oakman Street, Belfast — were jailed for three years and nine months and four years imprisonment respectively for assisting the interviewing of persons involved in IRA-organised criminal activities at Riverwood Park, Castleknock, Dublin, on August 7th and 8th, 2015.
After the Court of Appeal upheld the convictions of the five, they secured further appeals to the Supreme Court.
Giving the court’s main judgment on Tuesday dismissing the appeals, Ms Justice Iseult O’Malley said both the SCC and the COA took the view that evidence lawfully obtained as a result of surveillance had been stored, accessed and handled in a manner that breached section 10 of the 2009 Act because no Ministerial authorisation had been given for such storage, access or handling.
However, both courts went on to conclude the evidence was not rendered inadmissible because, in their view, the rule excluding illegally or unconstitutionally obtained evidence had no application to illegalities that occurred after the evidence had been gathered.
In the appeals, it was argued on behalf of the five the distinction drawn between “gathering” and “handling” of evidence was not valid, given the nature of the recording and processing carried out in the case of the voice recordings.
Ms Justice O’Malley ruled there was no breach of section 10. She also held, in any event, section 10 has no relevance to the processes of investigation and trial of offences.
The judge also expressed the view there may be cases where a trial court may conclude the manner in which lawfully gathered evidence was handled by State agents breached the rights of an accused in such a way the State could not benefit from that evidence.
In concurring observations, Mr Justice Peter Charleton said the information concerning the IRA’s “trial or inquiry” was not unlawfully obtained and the legal authorities do not provide for any distinction as to “obtaining” and “processing” evidence.
Should there be an illegality, there is a balance to be struck and, when carrying out that analysis, the courts may take the position of victims into account, he said.
Kevin Hannaway was one of the “hooded men” subjected by the British army during the 1970s to what the European Court of Human Rights found was “inhumane and degrading” treatment. He was interned and taken to a secret base in Derry in 1971 where he had a hood placed over his head while being subjected to white noise and sleep deprivation.