User:Serial Number 54129/Michael Connolly case

Background
Michael Connolly, from Dundalk.

16 December 2014: Arrest
During Connolly's Section 2 interviews,

Connolly denied he was a member of the IRA.

O'Sullivan stated that, in his reasoned opinion, Connolly was a member of the IRA. He confirmed that his opinion was based on secret material from an intelligence file and that he did not believe it to overlap with evidence within the book of Evidence. O'Sullivan also confirmed that he had not seen the Book of Evidence regarding the case.

June 2017: Conviction
Connolly was convicted before the non-jury Special Criminal Court in Dublin in June 2017 on the charge of membership. He was sentenced to three years' imprisonment.

26 June 2018: Conviction set aside
On 26 June{{sfn| the following year, the Court of appeal overturned Connolly's conviction and ordered a trial, before a different panel of judges at the Special Security Court.{{sfn|O'Riordan|2019}} The grounds upon which the appeal was upheld was the lack of discretion shown by the first court in disallowing a defence request to examine the intelligence file upon which O'Sullivan's opinion had been founded.{{sfn|Longford{{nbsp}}Leader|2021}}

2019: Retrial
Held before the Special Criminal Court, Dublin.

The defence, led by Hartnett SC, was instructed by Michael Finucane Solicitors.

On 16 December 2019, Connolly pleaded not guilty to membership of a proscribed organisation, "styling itself Oglaigh na hEireann, otherwise the Irish Republican Army, otherwise the IRA".

Defence
The prosecution alleged that Connolly had been observed driving as part of a convoy by the garda. When stopped, the other car was found with two homemade bombs.

Connolly was stated to have been "a significant part" of the IRA's plan.

The defence requested the court to assess the material used by the Assistant Commissioner to come to the conclusion he did. As a result, the court ordered the defence be provided with a hitherto undisclosed document, related to Connolly's attendance in court; this formed part of the evidence that O'Sullivan used to make his decision.

Addressing the IRA plan, Hartnett argued that no links had been established between Connolly and the materiel being transported, otherwise, he said Connolly "would have been charged with possession" (of explosives) rather than solely membership.

O'Sullivan based his assertion on, in part, confidential information, which he argued was protected as tradecraft and potentially relevant in future operations.

The judges, having examined the intelligence file, ordered the disclosure of two pieces of evidence, one of which was a summary of the events of 16 December 2014, including Connolly's activities and subsequent arrest and questioning.

Connolly had acted "entirely consistently" with what the garda would have expected from a man in his position when arrested.

Prosecution
Connolly's retrial was heard before Mr Justice Paul Coffey presiding alongside Judges Sinéad Ní Chúlacháin and James Faughnan.

O'Sullivan, argued Hartnett, had refused to answer "even the simplest" of their questions.

The defence argued that O'Sullivan's opinion as Connolly's membership was not based on an impartial assessment of events prior to the 2014 trial, but also included material that had arisen as a result of the trial. This, they argued, breached guidelines against double counting.

Burns countered that, rather than merely rubber-stamping a subordinate's assertion of Connolly's membership, he had considered it on its own merits. Indeed, he said he had not seen the Book of Evidence and was ignorant of its contents. The defence counsel, Hugh Hartnett, described O'Sullivan's opinion as weak, and that, furthermore, the defence's ability to cross-examine him had been restricted by the Assistant Commissioner's reliance on protected information, some of which, Hartnett claimed, "should not have been made".

Likewise, the prosecution rested on more than just Sullivan's word but on other evidence, specifically the inferences to be drawn from Connolly's silence under questioning.

The prosecution, led by Special Council Paul Burns, argued that their case rested on more than one line of evidence. Apart from the word of the Assistant Commissioner, there were the interrogations of 16 December, the inferences that could be drawn from Connolly's silence, and material evidence showing that Connolly had been witnessed in the company of known IRA men.

Judgment
Connolly had earlier been granted leave to seek compensation from the government for his 14-months' imprisonment, and his lawyers argued that his was a "classic case of miscarriage of justice".

Coffey's judgement, handed down electronically,{{refn|Due to the coronavirus pandemic in Ireland, written judgments had been delivered by email since March 2019 with issues arising thereof also dealt with remotely.{{sfn|ILN|2021}} indicated the court found issue with the evidence of Assistant Commissioner Michael O’Sullivan's evidence. This, Coffey said, did not convince them that his evidence was sufficiently impartial of the evidence upon which the prosecution otherwise relied.{{sfn|O'Riordan|2019}} The court was forced to examine the Assistant Commissioner's statement so detailedly, he said, so as to match the degree of ease with which it was accepted by the first court.{{sfn|Longford{{nbsp}}Leader|2021}}

Coffey stated that "We cannot have the confidence that we would need beyond a reasonable doubt that the Assistant Commissioner did not base his belief on the events of December 16". {{sfn|O'Riordan|2019}}

It was the prosecution's duty, when using police evidence in such a way, to ensure that they could prove the officer in question understood the double-counting guideline.{{sfn|O'Riordan|2019}} In this particular case, stated Coffey, there was no indication to show that O'Sullivan's testimony was independent of the garda's own Book of Evidence, and that the possibility of an overlap between public and private evidence could not be discounted.{{sfn|Reynolds|2021}} O'Sullivan's statement to the original court—that he had no knowledge of the material evidence against Connolly—had allowed the court to falsely believe that double-counting could not have occurred. While this did not rise to the level of misleading the court{{sfn|Reynolds|2021}}—they noted that, not having viewed the contents of the evidence book, he could not have deliberately misled the court{{sfn|Longford{{nbsp}}Leader|2021}}—the prosecution had had the opportunity to re-present O'Sullivan and explain his reasons for over-reliance on the intelligence files, "unhappily no application was made" to this end.{{sfn|Reynolds|2021}} It was, however, careless of O'Sullivan not to have ascertained the contents of the Book of Evidence beforehand, in order to satisfy himself as to any overlap, particularly as he "knew or ought to have known" how important, evidentially, the date of 14 December 2014 was.{{sfn|Longford{{nbsp}}Leader|2021}}

Likewise, while section 2 allows the court to draw inferences from the witness' silence, in this case, the court ruled that the questions raised to Connolly were too indiscriminate to indicate a pattern in his silence.{{sfn|O'Riordan|2019}}

The court considered it likely that, had the original judges been aware of the possibility of evidence having been presented twice, as was now considered to have happened, then they would probably have acquitted Connolly in the first place.{{sfn|Reynolds|2021}}

Coffey described O'Sullivan's evidence as "seriously incomplete and misleading".{{sfn|Longford{{nbsp}}Leader|2021}} The serious extent to which justice had been misapplied, said Coffey, "constitutes a miscarriage of justice"{{sfn|Reynolds|2021}} brought about by "agents of the state".{{sfn|Longford{{nbsp}}Leader|2021}}

Although Coffey authorised the release of a certificate of miscarriage of justice, he emphasised that this was not a case in which newly discovered evidence changes the appearance of a conviction or establishes innocence or guilt. The fact remained, he said, that there existed "a body of circumstantial evidence which tended to implicate" Connolly in the IRA convoy.{{sfn|Reynolds|2021}}

Release
After a year on trial, and two years after his original conviction, Connolly was freed on the morning of 24 June 2019.