The Court of Criminal Appeal has reserved judgement in the case of three Northern Ireland men appealing against their convictions for membership of the IRA.
In November 2010, Gerard McGarrigle (aged 47), Desmond Donnelly (aged 59) and Jim Murphy (aged 62) were convicted of membership of an illegal organisation styling itself the Irish Republican Army, otherwise Oglaigh na hÉireann, otherwise the IRA on February 22nd of the same year.
McGarrigle, of Mount Carmel Heights, Strabane, Co Tyrone, was jailed for five years by the Special Criminal Court while Donnelly, of Drumall, Lisnarick, Co Fermanagh and Murphy, of Floraville, Enniskillen, Co Fermanagh were each sentenced to three years and nine months.
The court heard that the three men were arrested at a Garda checkpoint outside Letterkenny in the early hours of February 22, 2010.
Gardaí uncovered an imitation firearm, cable ties, latex gloves, bin liners, a pair of kevlar gloves and insulation tape after a search of the vehicle the men were travelling in.
The accused men told gardaí that they had driven to Letterkenny in the hope of securing security work at a nightclub in the vicinity of Port Road.
Counsel for Gerard McGarrigle, Mr Diarmaid McGuinness SC, told the court that the arrest of his client was unlawful as insufficient information had been conveyed to him about why he was being arrested, such as the time and place he was alleged to be a member of an illegal organisation.
He said the court should not have admitted the belief evidence of Chief Superintendent Michael O’Sullivan that the three men were members of an illegal organisation on February 22, 2010 as it was based on anonymous and untested statements made outside of the court.
Mr McGuiness said that questions put to his client in certain interviews regarding the items found in the car could not have been of material significance because his client had already denied he was a member of the IRA, had admitted ownership of the Kevlar gloves but had denied any knowledge of the other items in the car, of which he was not the owner.
He said the trial court in its judgement had accepted that there was no proof beyond a reasonable doubt that any of the items found in the car gave rise to a finding that this was an “IRA raiding party”.
Junior Counsel Mr John Quirke told the court that the presiding judge Mr Justice Paul Butler erred in principle in determining that McGarrigle’s failure to answer material questions relating to his arrest was corroborative of other evidence against him.
He submitted that the court “failed to set out at all” what inferences it had drawn, where it had drawn them from and subsequently failed to explain why the inferences drawn were adverse and how they were corroborative.
Mr Paul Burns SC, for Donnelly, submitted that the trial court in its judgement said it would “return” to evidence that the men were looking for work at a Letterkenny nightclub, but failed to do so.
He said his client had told gardaí in interview that he was not a member of an illegal organisation and that the other men in the car were friends of his but the trial court did not take this to account when it drew inferences from his failure to answer material questions.
The court heard that the three men were informed by gardaí that a judge or jury could draw certain inferences from their failure or refusal to answer material questions relating to their arrest and may regard evidence of this as corroborative of other evidence against them.
Ms Una Ni Raifeartaigh SC, for the State, told the court that the normal use of the words used by gardaí when arresting Gerard McGarrigle adequately conveyed what he had been arrested for.
She said there was no error in law in the decision by the court to admit the belief evidence of Chief Superintendent O’Sullivan, which then went on to properly examine what weight should be attached to it.
Ms Ni Raifeartaigh said the Chief Superintendent was a “weighty witness” who had been tasked with setting up guidelines and protocols for the management of informants, had worked with Interpol and had 30 years experience in the gardaí at the time of the trial.
She submitted that the late hour and place of the arrest, coupled with the items found in the car called for an explanation and cumulatively made the questions put to the men in interview highly material.
Presiding judge Mr Justice Donal O’Donnell, sitting with Mr Justice George Birmingham and Mr Justice Gerard Hogan, said the court would reserve its judgement until a later date.