The European Court of Human Rights has ruled that a Dublin man did not get an unfair trial at the three judge non jury Special Criminal Court.
The Dubliner, Kenneth Donohoe, has claimed he did not get a fair trial because his lawyers were not given access to secret garda files which the court viewed during the trial and on which a Garda Chief Superintendent based his belief that Donohoe was an IRA member.
But earlier today, the court turned down his application and ruled that the garda privilege was essential for the protection of individuals and of State security.
In it's unanimous ruling the court said: "The applicant did not challenge, either before the domestic courts or this Court, the Chief Superintendent's view that disclosure of his sources would endanger persons and State security.
“The Court notes the domestic courts’ description of the unlawful organisation in question, the IRA: it was a secretive and violent organisation, one which assiduously sought out and punished police informers through torture and death and one which relied on the inevitable fear of testifying which those methods engendered.
"The admission of belief evidence, combined with the inevitable grant of privilege for the sources of that belief , also provides a crucial tool to overcome the evidential difficulties in prosecuting this particular kind of charge.
“A charge of ‘membership’ of such an organisation requires evidence drawn from intelligence necessarily gathered from numerous and varied sources (human and documentary) and over some time.
“The Court considers these justifications for the grant of privilege - effective protection of persons and State security as well as effective prosecution of serious and complex crime - to be compelling and substantiated.
"In such circumstances, and recalling that this Court’s task is to ascertain whether the proceedings in their entirety were fair, the Court considers that the weight of the evidence other than the belief evidence, combined with the counterbalancing safeguards and factors, must be considered sufficient to conclude that the grant of privilege as regards the sources of the Chief Superintendent’s belief did not render the applicant’s trial unfair.”
The ruling will be seen as a major boost to the efforts of the gardai to combat dissident republican terrorism. The gardai have charged many dissident republicans with IRA membership in recent years and one of the main planks of evidence in membership trials is the belief of a Garda Chief Superintendent.
Under the Offences Against the State Act, the Special Criminal Court is entitled to convict on the belief evidence of a Chief Superintendent, although the practice for many years has been that the court will only convict if there is other corroborating evidence.
Kenneth Donohoe(35), of Sundale Ave., Mountain View , Tallaght was convicted of IRA membership by the non jury Special Criminal Court in November, 2004 and jailed for four years.
During the trial the court heard that gardai arrested Donohoe and another man following suspicious activity around three vehicles in Bray, Co Wicklow on October 10th, 2002.
Donohoe and the other man were convicted on the belief evidence of a Garda Chief Superintendent which was supported by the failure of the two men to answer material questions when interviewed about documents.
Presiding judge Mr Justice Diarmuid O' Donovan said that the two men were members of the Provisional IRA and that organisation had been on ceasefire for some time when the offences occurred.
The three judges at the Special Criminal Court examined secret garda files on the two accused men which were not seen by either the prosecution or defence legal teams. Donohoe claimed in his action at the European Court of Human Rights that the non disclosure of the garda files made his trial unfair as it seriously restricted his defence rights.
His appeal against conviction was turned down twice by the Court of Criminal Appeal and the Supreme Court.