IRA man secretly recorded by gardaí fails to have conviction overturned on appeal

The Court of Appeal today rejected all the grounds of Damien Metcalfe's appeal and found that the evidence against him, excluding the opinion evidence of a Detective Chief Superintendent, "was cogent in the extreme; it might be described as crushing".

However, in a judgement returned electronically this morning, President of the Court of Appeal Mr Justice George Birmingham also said that the Special Criminal Court was fully entitled to have regard to the evidence of Chief Superintendent Anthony Howard. He said no "remotely credible basis" for suggesting that the court was obliged to exclude it from consideration had been advanced.

Lawyers for the man argued before the appellate court last May that the trial evidence of Chief Supt Howard, who told the Special Criminal Court of his belief that Damien Metcalfe was a member of the IRA, should have been "disregarded completely" as it was not proven.

They said attempts were made by the witness to advance a blanket claim for privilege and he did not engage with the cross-examination in a meaningful way.

They also submitted that the defence's cross-examination of Chief Supt Howard had been obstructed and that the witness demonstrated evasiveness.

Metcalfe, 34, with a last address at Monastery Park, Clondalkin, Dublin 22 was found guilty of membership of an unlawful organisation, styling itself the Irish Republican Army, otherwise Oglaigh na hÉireann, otherwise the IRA, on November 24, 2015.

In May 2019, the defendant was jailed by the non-jury Special Criminal Court for two years and six months. The offence of membership has a maximum prison sentence of eight years.

The three-judge court previously heard that the IRA were carrying out interrogations of other members following a series of IRA operations that were foiled by gardaí.

The IRA's Dublin and Belfast brigades wanted to know who was responsible for leaking information to gardaí and brought a number of men to a house in Castleknock in Dublin to interrogate them.

Passing sentence, presiding judge Mr Justice Tony Hunt said that the evidence against Metcalfe suggested that he played a “supporting and logistical role” in IRA inquiries.

His primary purpose was to bring people “to and from the inquiry” and he had "remained around the house" when enquiries were ongoing, said the judge, and had participated in one of the interviews. Furthermore, he said that supporting evidence suggested that Metcalfe was willing as well as trusted by the IRA to assist in their inquiries and had visited the premises on four separate occasions over two days. The State had relied on supporting evidence which included audio and video footage recovered from a Garda surveillance operation at Riverwood Park, Castleknock, Co. Dublin on August 7 and 8 2015.

Dismissing Metcalfe's appeal against conviction today, the Court of Appeal found that the trial court had dealt with Chief Supt Howard's evidence with "some care" and had recognised that "some real headway" had been made by the defence in cross-examination, and that this had served to weaken the opinion/belief evidence somewhat. It said the case went "well beyond being arguable that this was a case where a conviction could have resulted, even absent belief/opinion evidence". Mr Justice George Birmingham said that the court would dismiss the grounds of appeal relating to the opinion/belief evidence of Chief Super Howard.

Furthermore, Metcalfe's barrister argued that the trial court went a step too far in concluding, not only that IRA operations were being discussed, but that the appellant had been present at the location as an interviewee.

However, the State argued that the findings made by the non-jury court were justified and warranted and came against the background of the trial court having listened to three days of recordings. Dismissing this point of appeal, the Court of Appeal agreed with the State's submissions and said it was quite satisfied that the conclusions of the trial court were unimpeachable.

'No doubts' in Justices' minds about the safety of the conviction

Mr Justice Birmingham, sitting with Mr Justice John Edwards and Mr Justice Patrick McCarthy, said they were not persuaded to uphold any ground of appeal, nor has any doubt been raised in their minds about the safety of the conviction or the fairness of trial and accordingly dismissed the appeal.

In his appeal against conviction last May, the man's barrister, Hugh Hartnett SC, said Chief Supt Howard had asserted privilege on general matters and completely "insulated" himself from cross-examination. His evidence was defective to such an extent that it should not have been relied on and ought to have been withdrawn from the jury prior to the conclusion of the case, he argued. Mr Hartnett called the evidence given by Chief Supt Howard "bare" and "formulaic in fashion". "The cross-examination was obstructive, evasive and he refused to answer any questions at all," he said, adding that it was unacceptable for a witness to come to court and not assist counsel.

Furthermore, Mr Hartnett argued that certain things are expected from a Chief Superintendent and it's a "worrying place" if this is what is to be expected. "The contradictions and failures in this evidence are such that to rely on it would be wrong and to allow it to be mended like a puncture in a tyre [by circumstantial evidence] should not be allowed in law," he concluded.

In reply, counsel for the Director of Public Prosecutions (DPP), Anne-Marie Lawlor SC pointed out that the corroboration in the case was so strong and so unequivocal that it eliminated any doubts that might otherwise have arisen over the belief evidence.

In February of this year, five people jailed for their roles in the IRA “inquiry” of suspected informants in a Dublin suburb lost appeals against their convictions after having been found guilty following a trial at the Special Criminal Court in June 2018.

Kevin Hannaway, 71, of Colinmill, in Belfast as well as Eva Shannon, 61, of Oakman Street, in Belfast were given three years and nine months and four years imprisonment respectively for assisting the interviewing of persons involved in IRA-organised criminal activities at Riverwood Park, Castleknock, Dublin 15 on August 7 and 8, 2015.

Seán Hannaway, 48, of Linden Gardens, Belfast, was given five years and six months, David Nooney, 53, of Coultry Green, Ballymun, Dublin was given three years and nine months while Edward O’Brien, 42, of Hazelcroft Road, Finglas, Dublin was given 16 months imprisonment all for membership of an unlawful organisation, namely an organisation styling itself the Irish Republican Army, otherwise Oglaigh na hÉireann, otherwise the IRA on August 8th, 2015.

The Court of Appeal also upheld all five of their sentences despite appeals by Kevin Hannaway, Seán Hannaway and Eva Shannon that their sentences were too severe, as well as appeals by the DPP that the sentences imposed on Nooney and O’Brien were “unduly lenient”.

Damien Metcalfe's younger brother Conor Metcalfe, 28, was previously found guilty of IRA membership by the three-judge court in December 2018 and jailed for four years and six months.