In an unprecedented procedure, the three judges of the Special Criminal Court have ruled that secret Special Branch files on two Dublin men should be made available to them for inspection.
The head of the Garda Special Branch, Det Chief Supt Philip Kelly, brought three files to court, and the judges examined them in private. The files were then sealed by the members of the court and returned to gardaí.
It is believed to be 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 Det Chief Supt Kelly had formed his opinion that the two accused were IRA members.
It was the eighth day of the trial of Mr Niall Binead, also known as Niall Bennett (35), of Faughart Road, Crumlin, Dublin, and Mr Kenneth Donohoe (26), of Sundale Avenue, Mountain View, Tallaght, Dublin, who have pleaded not guilty to membership of an illegal organisation styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann, otherwise the IRA, on October 10th, 2002.
After examining the Garda files, Mr Justice O'Donovan, presiding, said the court was satisfied that Det Chief Supt Kelly had adequate information on which he could legitimately form the opinion that each of the accused was an IRA member.
Earlier, the court had ruled on defence applications concerning Det Chief Supt Kelly's opinion evidence that Mr Binead and Mr 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 inquiry whatsoever is made into the basis for Chief Supt 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 the court was satisfied it was entitled to review some of the documentation which Det Chief Supt Kelly asserted was the basis for his belief.
"Accordingly we will require Chief Supt 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 Mr George Birmingham SC, prosecuting, and Mr Peter Finlay SC for Mr Binead and Mr Conor Devally SC for Mr Donohoe, reserved its judgment and remanded the accused on continuing bail.