Special Criminal Court examines secret Garda files

The Special Criminal Court for the first time in its history today examined secret garda files relating to an IRA membership trial.

The three judges of the court ruled that secret Special Branch files relating to two Dublin men should be made available to them for inspection.

The head of the Garda Special Branch, Detective Chief Superintendent Philip Kelly, brought three files to court and they were then examined by the three judges in private in their chambers. After the examination the files were sealed by the members of the court and returned to the gardaí.

It is the first time in an IRA membership trial that the court has inspected secret garda files on the accused.

The court asked for the files to assess on what basis Detective Chief Superintendent Kelly formed his opinion that the two accused were IRA members.

It was the eighth day of the trial of Niall Binead, also known as Niall Bennett, (aged 35), of Faughart Road, Crumlin and Kenneth Donohoe (aged 26), of Sundale Avenue, Mountain View, Tallaght who have pleaded not guilty to membership of an illegal organisation styling itself the Irish Republican Army, otherwise Oglaigh na hÉireann, otherwise the IRA on October 10, 2002.

After examining the garda files, Mr Justice Diarmuid O' Donovan, presiding, said that the court was satisfied that Chief Superintedent Kelly had adequate information on which he could legitimately form the opinion that each of the accused a member of the IRA.

Earlier the court had ruled on defence applications concerning Detective Chief Superintendent Kelly's opinion evidence that Binead and Donohoe were IRA members in October 2002.

Giving the court's ruling Mr Justice O' Donovan said: "The court has considered these submissions and the court is of the view that if no enquiry whatsoever is made into the basis for Chief Superintendent Kelly's belief, then there is substance to the defence argument that there is an imbalance in the trial in favour of the prosecution and an absence of equality of arms, which could be interpreted as a lack of fairness insofar as the accused are concerned.

"The court is also of the view that Article 6 of the European Convention of Human Rights, which is now part of the domestic law in this country, does augment the traditional rights of an accused person in the course of his/her trial in that it is now the law that one of his minimum rights is the right to examine and have examined, and I emphasise the `have examined', witnesses against him . In the context of this case, this right would appear to include the right to have Chief Supt Kelly examined with regard to the basis for his beliefs.''

The judge said that the court was satisfied that it was entitled to review some of the documentation which Chief Supt Kelly asserted was the basis for his belief.

"Accordingly we will require Chief Superintendent Kelly to produce to the court documentation which he asserts informed him that the accused were members of the IRA," the judge added.

The court refused a defence application for a direction to acquit the two accused and after hearing submissions from prosecuting counsel Mr George Birmingham SC and Mr Peter Finlay SC for Binead and Mr Conor Devally SC for Donohoe reserved its judgement in the trial and remanded the two accused on continuing bail.