I find it difficult to follow the reasoning adopted by the majority. In the first place, in my opinion the majority fail to address the applicant's core complaint. Secondly, they transpose principles related to statements by anonymous or absent witnesses to a situation of undisclosed material where such principles are in my opinion not applicable. Judge Lemmens

Non-disclosure of Police Sources did not make trial of IRA Member Unfair

[Please read carefully JL's reasoning, follows court briefing, complainant should seek referral to full chamber of the ECtHR]

Chamber judgment in the case of Donohoe v. Ireland (application no. 19165/08)' which is not final the European Court of Human Rights held, unanimously, that there had been: no violation of Article 6 (right to a fair hearing) of the European Convention on Human Rights.

The case concerned the fairness of Mr Donohoe's trial and conviction before the Special Criminal Court (/SCC) in Ireland for being a member of the IRA. His conviction was based, among other things, on evidence given by a Chief Superintendent of the Irish police, who testified that it was his belief that Mr Donohoe was a member of the IRA. When asked to identify the sources of his belief, the Chief Superintendent claimed privilege stating that disclosure would endanger lives and State security. The SCC directed the Chief Superintendent to produce all relevant documentary sources which formed the basis of his belief and it reviewed those files in order to be satisfied as to the reliability of his belief. Neither the prosecution nor the defence had access to that confidential material. Mr Donohoe complained that the non-disclosure had made his trial unfair as it seriously restricted his defence rights.

The Court found against the applicant because: the trial court had upheld the non-disclosure of sources for the legitimate purpose of protecting human life and State security; the decision to convict had been reached with the support of additional evidence which corroborated PK's belief; and, there had been a number of safeguards in place during the trial to ensure that the non-disclosure of PK's sources would not undermine the fairness of the proceedings.

Principal facts: The applicant, Kenneth Donohoe, is an Irish national who was born in 1978 and has a permanent address in Dublin. The case concerned Mr Donohoe's trial and conviction for membership of an illegal organisation, the IRA. In the evening of 2 October 2002 police noticed suspicious activity among three parked vehicles (a Nissan Almera, a Nissan Micra and a Transit van) in Corke Abbey housing estate, near Dublin. After investigating, they found two men dressed up as "Garda" (police) in the back of the van and a number of incriminating items both in the van and Nissan Almera, including balaclavas, police costumes, a stun gun and a canister of CS gas. Five men were arrested at the scene in the van and charged with being members of an illegal organisation. Mr Donohoe was not among them. However, the Nissan Micra, which had left the estate, was traced back to his partner, leading to a police search of his home. Papers were found there containing the phone numbers of the owner of the Nissan Almera, and of the man who had been sitting in the driver's seat of the van. 

Mr Donohoe was arrested and charged with membership of an illegal organisation. He was tried before Ireland's Special Criminal Court, which found him guilty and imposed a sentence of four years' imprisonment in November 2004. An aspect of the prosecution's evidence that carried some weight was the sworn testimony of Chief Superintendent P.K. He stated that, independently of any evidence found at the incident in the housing estate or in Mr Donohoe's home, it was his belief that Mr Donohoe was a member of the IRA. P.K. told the Court that his belief was based on confidential information of an oral and written nature that was available to him from police and civilian sources. He refused to identify those sources claiming privilege because disclosure would endanger human life and State security. Mr Donohoe made an application for an inquiry into the sources, arguing that the trial would be unfair if he did not know these sources and the evidence against him. The court conducted an inquiry; it ordered the production of all relevant confidential files and the trial judges reviewed them in order to be satisfied as to the reliability of P.K.'s belief. Mr Donohoe sought leave to appeal against his conviction. Following a hearing and an extensive review of national and Convention case-law, the Court of Criminal Appeal refused leave to appeal. In October 2007, the Court of Criminal Appeal, following another hearing, also refused Mr Donohoe's application for his appeal to be taken to the Supreme Court.

Relying on Article 6 (right to a fair trial), Mr Donohoe complained that the non-disclosure of the Chief Superintendent's sources had restricted his defence and that the trial court's review of that material was inadequate and that there should have been effective safeguards to ensure that the material could be evaluated in a way which did not prejudice his right to a fair trial. In particular, Mr Donohoe considered it unfair for a trial court to have access to material which he alleged was persuasive of his guilt but to which he, the defendant, had been denied scrutiny of any kind, the SCC review of the material having been held in private.

The application was lodged with the European Court of Human Rights on 8 April 2008. Third-party comments were received from the Irish Human Rights Commission, which was given leave to intervene in the Court's proceedings.

Decision of the Court
Article 6: The Court noted that, in order to assess the fairness of the non-disclosure of P.K.'s sources, three questions had to be addressed. The first was whether it had been necessary to uphold P.K.'s claim of privilege. The Court found that the justifications given - of protecting human life, namely, persons in danger of reprisals from the IRA and State security as well as the effective prosecution of serious and complex crime - had been compelling and substantiated and that the non-disclosure had therefore been necessary.

The second question was whether the undisclosed evidence had been the sole or decisive basis for Mr Donohoe's conviction. The Court found that this was not the case, noting that the trial court had heard over 50 other prosecution witnesses and that there was other important evidence provided by the prosecution, namely: Mr Donohoe's link to the suspicious activities at Corke Abbey on 2 October 2002 via the Nissan Micra (whose movements during the Corke Abbey events had to have been carried out, if not with his acquiescence, then at the least with his knowledge) as well as to incriminating objects found in the vehicles; the papers found at Mr Donohoe's home; and, the inference which the trial court was entitled to draw from his complete refusal to answer questions that were of clear relevance to the charges against him.

The third question was whether there had been sufficient safeguards during the trial to counterbalance the disadvantage caused to Mr Donohoe's defence by the upholding of P.K.'s claim of privilege. The Court noted that the trial court had adopted a number of measures having regard to the rights of the defence.

Firstly, there had been judicial control over the question of non-disclosure in that the SCC had reviewed the documentary materials upon which P.K.'s belief was based in order to test the adequacy and reliability of that belief. It found that P.K. had had adequate and reliable information on which he could legitimately form the opinion that Mr Donohoe was a member of the IRA. Furthermore, the SCC confirmed that there had been nothing in the undisclosed files that might have assisted Mr Donohoe's defence. If Mr Donohoe had doubted the trial judges' assessment he could have asked the appeal court to check their conclusions. The SCC also confirmed that it would not convict Mr Donohoe on the basis of P.K.'s evidence alone and that it required this to be corroborated by other evidence. It had kept Mr Donohoe informed of the procedure, allowing him to make detailed submissions about it.

The Court also noted that the laws allowing the admission of 'belief evidence ensured that it could only be provided by a high ranking police officer and that it would be assessed by the court as a belief rather than a fact. Finally, the defence could still cross-examine the Chief Superintendent in a range of ways - such as by asking about the nature of his sources, whether he knew or personally dealt with any of the informants and about his experience in gathering intelligence - in order to allow the trial court to assess his demeanour and credibility and the reliability of his evidence.

Therefore, considering the weight of the evidence other than P.K.'s belief as well as the numerous counterbalancing safeguards, the Court found that the non-disclosure of P. K.' s sources had not made Mr Donohoe's trial unfair.

Concurring but Separate Opinion Of Judge Lemmens

1. I voted with my colleagues that there has been no violation of Article 6 of the Convention.

To my regret, however, I find it difficult to follow the reasoning adopted by the majority. In the first place, in my opinion the majority fail to address the applicant's core complaint. Secondly, they transpose principles related to statements by anonymous or absent witnesses to a situation of undisclosed material where such principles are in my opinion not applicable.

Notwithstanding the fact that I would apply different principles to a different complaint, I come to the same conclusion.

The complaint: not about the admissibility of belief evidence or the non-disclosure of underlying material, but about the role of the trial court with respect to the privileged material

2. The applicant explicitly stated that he did not object to the admissibility of the belief evidence (written observations of 17 July 2012, § 1). Nor did he object to the non-disclosure as such of the privileged material submitted by the Superintendent to the Special Criminal Court (SCC).

What he objected to was "the unfairness which is inherent in the fact that the court of trial, which in this case was the trier of fact, reviewed the material upon which the belief was based, formed a view as to its reliability and convicted the (applicant) on the basis of it while denying the (applicant) any meaningful way of challenging that evidence" (written observations, § 2; emphasis added). He concluded his submissions in the following words: "The applicant does argue that the procedure adopted in his case was unfair because a trial court which had to determine the question of guilt or innocence had knowledge of material which it concluded was reliable evidence persuasive of guilt but which the applicant was unable to challenge in any meaningful way" (written observations, § 24; emphasis added).

In sum, the applicant argued that the SCC, as a trial court sitting without a jury, acted in an unfair way by reviewing undisclosed material, not with the purpose of merely deciding whether or not this material had to be disclosed, but with the purpose of assessing its reliability and adequacy as a basis for the Superintendent's belief, which in turn was part of the evidence of the applicant's guilt. In other words, the applicant's complaint was based on the fact that the same trial court reviewed the material underlying the Superintendent's belief and decided on the applicant's guilt or innocence.

3. While the majority correctly quote the applicant's complaint, especially in paragraph 66 of the judgment, it seems to me that they do not focus their reasoning on the dual role of the trial court. They examine whether there were reasons for upholding the Superintendent's claim of privilege (paragraphs 80-81), even though the applicant did not challenge that claim. They go on to examine whether the Superintendent's belief evidence was the sole or decisive basis for the applicant's conviction (paragraphs 82-87). Finally, they examine whether there were adequate "counterbalancing" factors and safeguards in place (paragraphs 88-92), but without discussing the very fact that the trial court examined the material relied on by the Superintendent and subsequently decided on the applicant's guilt.

With all due respect, it seems to me that the majority thus fail to give an answer to the specific complaint made by the applicant.

The relevant case law: not Al-Khawaja and Tahery, but Rowe and Davis and Edwards and Lewis

4. The majority further hold that they must be guided by the general principles articulated by the Court in Al-Khawaja and Tahery v. the United Kingdom [GC] (nos. 26766/05 and 22228/06, ECHR 2011) (paragraphs 78-79). That case concerns the impossibility to cross-examine an absent witness. It provides for a three-prong test (as is recalled in paragraph 76 of the present judgment): (i) was it necessary to admit the statement by the absent witness?; (ii) if so, was the evidence given by the witness the sole or decisive evidence for the accused's conviction?; (iii) if so, where there sufficient counterbalancing factors?

It is true that the Superintendent could not be cross-examined about the material underlying his belief that the applicant was a member of the IRA, but this does not turn the present case into a case about an absent (or anonymous) witness. I would like to add that neither is this case about a prosecution witness who refuses to answer questions of the defence (compare Pichugin v. Russia, no. 38623/03, 23 October 2012).

5. This case is about the role of the trial court with respect to undisclosed documents.

The relevant principles are, in my opinion, those that can be found in Rowe and Davis v. the United Kingdom [GC] (no. 28901/95, ECHR 2000-II) and Edwards and Lewis v. the United Kingdom [GC] (nos. 39647/98 and 40461/98, ECHR 2004-X). These cases concern the admissibility of undisclosed material in criminal proceedings and the procedure for dealing with such material. In recent cases concerning the non-disclosure of evidence the Court has continued to refer to those principles, not seeking to replace them with the Al-Khawaja and Tahery principles (see, for example, Leas v. Estonia, no. 59577/08, 6 March 2012; O'Farrell and Others v. the United Kingdom (dec.), no. 31777/05, 5 February 2013; and Twomey and Others v. the United Kingdom (dec.), nos. 67318/09 and 22226/12, 28 May 2013). The approach adopted by the majority in the present case is unprecedented.

6. Rowe and Davis sets the general principles for cases like the present one. These principles were also stated in two other judgments handed down on the same day: Jasper v. the United Kingdom [GC] (no. 27052/95, § 53, 16 February 2000), and Fitt v. the United Kingdom [GC] (no. 29777/96, § 46, ECHR 2000-II). They are quoted in paragraph 74 of the present judgment.

These same principles were reaffirmed in Edwards and Lewis (Chamber judgment of 22 July 2003, § 54, quoted in the Grand Chamber judgment, § 46). While Rowe and Davis, Jasper and Fitt all concerned cases in which undisclosed material submitted by the prosecution had been reviewed by the trial judge but not put to the jury which had to decide on the guilt or innocence of the accused, Edwards and Lewis concerned two cases in which undisclosed material had been reviewed by the trial court, while that same court also had to decide on all issues of fact and on the guilt or innocence of the accused. The Court found that the material reviewed ex parte by the trial judge in order to determine whether there had been entrapment by the police concerned an issue that was "of determinative importance to the (accused's) trials" (Chamber judgment, § 57, quoted in the Grand Chamber judgment, § 46). Moreover, since the trial judge had seen prosecution evidence which could have been relevant to the defence submissions on entrapment, while the defence was not informed of the content of the undisclosed material, the Court did not consider "that the procedure employed to determine the issues of disclosure of evidence and entrapment complied with the requirements to provide adversarial proceedings and equality of arms or incorporated adequate safeguards to protect the interests of the accused" (Chamber judgment, §§ 58-59, quoted in the Grand Chamber judgment, § 46).

On the basis of the Rowe and Davis and Edwards and Lewis judgments, it seems to me that the Court would have to answer two questions in the present case: (i) did the trial court, in reviewing the material underlying the Superintendent's belief, see material which was, or could have been, "of determinative importance" for the applicant's trial (Edwards and Lewis)?; (ii) if so, did the decision-making procedure comply, as far as possible, with the requirement to provide adversarial proceedings[1] and did it incorporate adequate safeguards to protect the interests of the accused (Rowe and Davis and Edwards and Lewis)?

Application of the Rowe and Davis and Edwards and Lewis principles to the present case

7. In what follows, I will try to give an answer to the complaint, as I interpret it, on the basis of the principles set forth in Rowe and Davis, and further developed in Edwards and Lewis.

8. As to the question whether the undisclosed material was "of determinative importance" for the applicant's trial, I would like to emphasise that "determinative" does not mean "decisive". In my opinion, it is sufficient that the undisclosed material was or could have been "relevant" for the trial court's assessment of the guilt or innocence of the accused.

There cannot be any doubt that this was indeed the case. The material related to the Superintendent's belief that the applicant was a member of the IRA, and this belief formed the first strand of the evidence tendered by the prosecution.

The majority attach importance to the fact that the Superintendent's belief was not the "sole or decisive" evidence relied on by the SCC (paragraphs 82-87). I believe that this assessment is correct, but in my opinion it is not a relevant issue. Even if the Superintendent's belief had been the sole or decisive basis for the applicant's conviction, this fact alone would in my opinion not necessarily have led to the conclusion that the applicant's trial was unfair.

Indeed, it remains to be seen whether the decision-making procedure complied, as far as possible, with the requirement to provide adversarial proceedings and whether it incorporated adequate safeguards to protect the interests of the applicant.

9. It appears to me that the procedure in the applicant's case allowed, as far as possible, for adversarial proceedings.

In the first place, the SCC decided that it would not base a conviction of the applicant solely on the Superintendent's belief, unless it was satisfied that there was evidence which supported or corroborated it. The applicant was able to comment on each of the other strands of evidence presented by the prosecution.

Moreover, "while the scope of cross-examination (of the Superintendent) was restricted by the trial court's ruling, the possibility to cross-examine the witness on his evidence was not entirely eliminated" (see paragraph 92 of the judgment, with further developments).

10. With respect to the protection of the applicant's interests during the proceedings, I note that the Irish Human Rights Commission (IHRC) in its submissions as a third party was very critical of the decision-making procedure before the SCC. Commenting on the role of the SCC, the IHRC stated: "As noted, the SCC sits without a jury, and so the judges charged with determining the guilt or innocence of the accused hear all the evidence irrespective of whether part of it is later ruled inadmissible... This is in stark contrast to a jury trial where the jury, which ultimately decides matters of guilt or innocence, does not hear evidence deemed to be inadmissible, so their deliberations are not tainted by evidence that should never have been before the court in the first place. It is this safeguard in normal procedure that is such a significant lacuna in the safeguards before the SCC" (written comments of 9 May 2012, paragraph 21). Further in its submissions, the IHRC pointed to the fact that the absence of a jury in the proceedings before the SCC constituted a "structural deficit ..., which should be the overall responsibility of the State" (paragraph 41).

11. I have sympathy for the point of view of the IHRC, but in the end I believe that, notwithstanding the restrictions to the rights of the defence, the procedure in the applicant's case, taken as a whole, incorporated a number of safeguards which sufficiently protected his interests. I would attach particular weight to three aspects of the proceedings. They are also mentioned, albeit with other accents, in paragraph 88 of the judgment.

In the first place, the SCC was well aware of the difficulties the system created for the defence. For that reason, it made two things clear after having reviewed whether the information upon which the Superintendent based his opinion was "adequate and reliable". It stated "that there was nothing in any of the files which, in the view of the court, would assist the defence in proving the innocence of their clients", thus deciding that the "innocence at stake" exception was not applicable. It further stated that in weighing and considering the belief evidence of the Superintendent, it "specifically excluded consideration of any information to which the court had become privy as a result of perusing the files relating to the two accused which had been produced by the ... Superintendent". As the Court of Criminal Appeal (CCA) found in its first judgment, the latter statement indicated that the material examined by the SCC "was (not) influential on that court in making its judgment, let alone inspiring anything determinative of the guilt of (the applicant and his co-accused)".

It is true that it was the trial court itself that made the reassuring statements. The applicant could not meaningfully contest either of them. However, as for the first statement, it would in any event have been for the court deciding on the merits to assess whether or not there was something in the file that could have gone in the direction of an acquittal, and the accused would have had to accept that assessment, subject to appeal of course. As for the second statement, it is understandable that a convicted person may have doubts as to whether a court was able to disregard material it had seen before. However, as the CCA stated in its first judgment, banishing matters from their minds is something experienced judges do "meticulously and without difficulty every day". Our Court also accepts that experienced judges perfectly understand how to deal with undisclosed material that cannot serve as a basis for a conviction (Twomey, cited above, § 38).

Finally, it is important to note that the applicant could have invited the CCA, which was not the trial court, "to ascertain whether (in the process of reviewing the material submitted by the Superintendent) the trial judges had misdirected themselves in respect of the documents or the material contained therein" (second judgment of the CCA). The applicant did not seek such an "independent" review. This failure is an element that considerably weakens the strength of his argument.

12. For the reasons set out above, I would conclude that, despite the examination of some undisclosed, potentially damaging material by the SCC, the applicant has not been deprived of a fair trial.

The full text of the Judgement <}>here . . . .