DPP fails in High Court attempt to have miscarriage of justice finding quashed

The Director of Public Prosecutions (DPP) has lost her High Court challenge to a ruling that a man who spent 14 months in jail on an IRA membership charge was a victim of a miscarriage of justice.

The 2017 conviction of Michael Connolly (49) in the Special Criminal Court in 2017 was set aside on appeal. He was found not guilty in 2019 following a retrial at the Special Criminal Court.

In April 2021, the Special Criminal Court found there was a miscarriage of justice due to a “grave defect” in the administration of justice in the case brought about “by agents of the State”.

The DPP asked the High Court to quash the miscarriage of justice certificate, but, in a ruling on Monday, Mr Justice Garrett Simons dismissed the DPP’s case in its entirety.

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He said the non-jury court’s decision is not invalidated by the absence of a finding that the acquitted Mr Connolly is “‘factually innocent’ (as opposed to merely presumptively innocent)”.

Certification of a miscarriage of justice is not confined to the acquitted person being able to establish, on the balance of probabilities, that they are factually innocent, he said.

Mr Connolly, of Grange Drive in Dundalk, Co Louth, had pleaded not guilty to membership of the IRA after he had been observed by gardaí driving in a convoy on December 16th, 2014, with another man who was then found with two improvised explosive devices.

He was acquitted after the Special Criminal Court found it could not rely on the “belief evidence” of the Garda assistant commissioner as being independent from the investigation.

Unlike other courts, the non-jury court can accept the belief evidence of high-ranking gardaí if it is based on material that is independent to other evidence before it. Here, there was a danger of the evidence being “double-counted”.

Mr Justice Simons rejected the DPP’s argument that the criminal court made a “positive finding” to the effect that the acquitted Mr Connolly was “not factually innocent” or that he had been involved in the movement of explosive devices.

“Had the Special Criminal Court purported to make such a finding, it would have been invalid as inconsistent with the presumption of innocence,” he said.

The DPP had sought to persuade him that a miscarriage of justice certificate should only be given to someone who is “factually innocent”. Legal innocence involves someone being found not guilty, while factual innocence is where it can be proved a person is not guilty of an offence, the DPP argued.

Here, the DPP submitted, the court that acquitted Mr Connolly nevertheless made a finding of fact that, beyond reasonable doubt, circumstantial evidence “tended to implicate” him in the transportation of two improvised explosive devices a decade ago.

Questioned by the judge, the DPP’s lawyers said she “accepts the accused was acquitted of the criminal offence and is not guilty of the criminal offence”.

Hugh Hartnett SC, instructed by Thompson Solicitors, for Mr Connolly, said the court was being asked to make “some sort of half finding” that does not accord with the constitutional principle of the presumption of innocence.

Ruling, Mr Justice Simons said the DPP’s arguments are not well founded. He said the Special Criminal Court “went no further than deciding that, whereas the discovery of the difficulty with the belief evidence necessitated an acquittal, it did not go so far as establishing that an acquitted person was ‘factually innocent’”.

“This is qualitatively different from a positive finding that the acquitted person was guilty of an offence,” the judge said.

Crucially, he added, there is “nothing in the judgment which displaces the presumption of innocence”, which is a right recognised by the Constitution and the European Convention on Human Rights.

In a judicial review application, the High Court can only set aside a decision under challenge if it is unreasonable or irrational. Here, the judge said, the decision to certify was open to the Special Criminal Court to reach on the evidence.

A miscarriage of justice may be certified on the distinct ground of a grave defect in the administration of justice, he added.

Applications for miscarriage of justice certificates are relatively rare. The Department of Justice said last June it had received just six claims for compensation, on foot of court certificates, under section 9 of the Criminal Procedure Act of 1993.

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