Admissibility of garda evidence as to belief of IRA membership was constitutional if supported by other evidence

Hardiman J (nem diss): Claim for declaration that s.3(2) of the Offences Against the State (Amendment) Act 1972 was inconsistent with the constitution - admissibility in evidence of belief of Chief Superintendent of the Garda Siochana than an accused was a member of the Irish Republican Army - diminution of protection normally afforded to accused persons - accused powerless to challenge basis for belief - danger that superintendent might be manipulated - involvement of informers - lack of information on informers - right of cross-examination - constitutional dimension - whether Supreme Court had power to order use of "special advocate" to examine relevant papers in secret - whether withholding of information from defence rendered trial unfair - whether Special Criminal Court could convict on belief evidence alone - practice to seek corroboration - whether relevant section capable of construction which was constitutional - weight to be placed on belief evidence - safeguards - whether charge should otherwise be supported by some other piece of evidence or admissible circumstance that supported the charge.

"Quite independently of what the practice of the Special Criminal Court has been, (and it has never gone so far as to hold that a conviction may never be had on belief evidence solely) I believe that s.3(2) is not unconstitutional because it is capable of being construed as requiring the evidential support described in this paragraph. [par 29]"

Charleton J (concurring): Trial of membership of Irish Republican Army - evidence of belief given by Chief Superintendent of Garda - whether constitutional - other supporting evidence - ostensible necessity for the subsection - history of IRA's campaign - legislative and constitutional context - operation of the section - safeguards - special advocates.

"To the evidence briefly referred to and the arguments summarised above, it might be added that the self-styled IRA has purported to carry out a campaign of sadistic violence and terrorism with the ostensible aim of achieving a united Ireland on behalf of all of the people of this island both before and after the Act of 1972 was passed. There has been no mandate for this. Dissent from the decision to cease violence in 1994 continues to pose a real threat of igniting further civil conflagration within this island."

"There is no presumption of special merit attaching to the evidence of a Chief Superintendent in giving evidence of his or her belief on a trial of membership of an unlawful organisation contrary to s.21 of the Offences Against the State Act 1939 that an accused is such a member. There is nothing in the text of s. 3(2) of the Offences Against the State (Amendment) Act 1972 which establishes any element of favouritism towards such evidence or which in any way reverses the ordinary standard and burden of proof. Nor does any decision of this Court or any other court. Such belief evidence is merely admissible evidence. As such, it may be rejected, contradicted or challenged in the ordinary way."