BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable RTF version]
[Help]
D.P.P. v. Special Criminal Court [1998] IEHC 48; [1999] 1 IR 60 (13th March, 1998)
THE
HIGH COURT
JUDICIAL
REVIEW
1998
No. 30 J.R
.
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
AND
THE
SPECIAL CRIMINAL COURT
RESPONDENT
AND
PAUL
WARD
NOTICE
PARTY
AND
JUDICIAL
REVIEW
1998
No. 63 J.R.
BETWEEN
PAUL
WARD
APPLICANT
AND
THE
SPECIAL CRIMINAL COURT
RESPONDENT
AND
THE
DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE
PARTY
Judgment
delivered the 13th day of March, 1998 by Carney J.
1. The
evidence of Assistant Commissioner, Anthony Hickey given before the Special
Criminal Court, evidence accepted by that Court, establishes that An Garda
Siochana as well as having to deal with crime in its traditional forms now has
in addition to deal with organised crime. Those engaged in such crime require
a wall of silence to surround their activities and believe that its maintenance
is necessary for their protection. They have at their disposal the resources
including money and firearms to maintain this wall of silence and will resort
to any necessary means including murder in furtherance of this objective.
2. To
deal with crime of this nature it is necessary for An Garda Siochana to collect
information, to gather intelligence and to take information in confidence from
those willing to provide it. Those prepared to furnish confidential
information to the police in relation to organised crime know that they could
face a death sentence if this co-operation became known.
3. Were
confidences of this nature to be breached, Assistant Commissioner Hickey has
sworn that it would become virtually impossible for An Garda Siochana to
investigate serious crime of this sort.
4. The
Courts are constantly called upon to resolve conflicting constitutional and
legal rights and to establish the hierarchy of conflicting constitutional
rights. In this case, there is a potential conflict between the rights of the
people of Ireland to have organised crime effectively combated by its police
force, the rights of those fulfilling a public duty to furnish information to
the police in relation to organised crime to be protected against being
murdered and the right of Paul Ward to have a fair trial.
5. On
Wednesday, 26th June, 1996, the well known investigative journalist, Veronica
Guerin, attended a court case in Naas and thereafter drove her motor car on the
Naas dual carriageway in the direction of Dublin. Shortly before 1 p.m. she
was stopped at the traffic lights near the Green Isle Hotel. A motorcycle with
two passengers on it wearing dark clothing and dark crash helmets drove up
beside her car. The prosecution will contend before the Special Criminal Court
that Ms. Guerin was murdered by shooting and the details of the killing are not
material to this application.
6. Paul
Ward is currently on trial before the Special Criminal Court for Ms. Guerin's
murder. It is not being alleged that he was present at Ms. Guerin's murder.
He is accused of complicity in a common design to kill her or seriously injure
her by assisting in the planning of the murder and in being available at his
house to receive the actual killers and to assist in their escape by disposing
of the firearm used and of the motorcycle.
7. The
prosecution intend to make their case against the Accused under three broad
headings. They claim to have evidence of admissions allegedly made by the
Accused. Secondly, they say they will adduce accomplice evidence from a person
being maintained within a newly established Witness Protection Programme and
thirdly, they say they have telephone records which establish that on the day
of the murder, sixteen telephone calls passed between the Accused and the
person alleged to have been on the motorcycle instrumental in the killing.
8. In
the course of the trial, the Accused will enjoy throughout a constitutional
presumption of innocence which in practical terms will mean that the Special
Criminal Court will be required to assess and consider the case and each piece
of evidence produced on the basis that the Accused is a totally innocent man.
The prosecution, in order to succeed, will have to prove its case and every
limb of significance in it to the standard of beyond reasonable doubt. There
will be no obligation on the Accused to prove anything, give evidence or call
witnesses though he will of course be entitled to do so. He will be entitled
to an acquittal as of right if the prosecution does not prove his guilt to the
satisfaction of the Special Criminal Court to the high standard indicated.
9. The
prosecution will have to prove its case by the calling of witnesses who will be
subject to cross-examination and the production of material documents which
will have to be established as admissible under the rules of evidence. The
accomplice evidence will be subject to the rules as to corroboration and the
confession evidence will be subject to the safeguards introduced by the
Criminal Procedure Act, 1993.
10. The
Special Criminal Court which is subject to the appellate jurisdiction of the
Court of Criminal Appeal gives written reasons for its verdict unlike a jury in
the ordinary courts which records simply whether its finding is one of "guilty"
or "not guilty". It also gives written reasons for its interlocutory rulings
as evidenced by the 14 page ruling at present being considered by me.
11. The
Accused is entitled to be notified of the case against him by service upon him
of the Book of Evidence and disclosure of unused relevant material. In the
course of the investigation into the murder of Veronica Guerin about 3,500
written statements were taken by An Garda Siochana from approximately 1,350
people. The prosecution contend that the vast majority of these statements
have no bearing whatsoever against the instant Accused or any defence which
they perceive might be open to him. With the exception of 40 statements made
by 20 individuals material which does not appear in the Book of Evidence has
been made available for inspection by the Accused's legal advisers.
12. It
is contended by the prosecution that the disclosure of the remaining 40
statements made by 20 individuals would through their co-operation becoming
known to ruthless gangs place their lives in danger or at least require that
they be placed under Witness Protection Programmes. The Accused, as stated
already, enjoys a constitutional presumption of innocence but the prosecution
contend that even accepting this to be so he could be coerced to reveal what is
disclosed to him. Mr. Peter Charlton, S.C., leading Counsel for the Director
of Public Prosecutions told the Special Criminal Court that he and his Junior
Counsel, Mr. Thomas O'Connell had read and considered each of the said
statements with great care and that it was their professional opinion that the
information which they contain would provide no assistance to the Accused in
making his defence to the charge against him.
13. Two
propositions seem to me to be so obvious and fundamental under our system of
constitutional and adversarial justice that I propose to simply state them and
move on. They are:-
1. There
can be no question of Assistant Commissioner Anthony Hickey or any member of An
Garda Siochana deciding that any material might be withheld from disclosure to
the Court or the defence.
2. There
can be no question of Counsel or solicitor for the prosecution deciding what
material might or might not be of assistance to the defence.
14. Mr.
Charlton submitted to the Court of Trial that there were three categories of
statement for which privilege from disclosure was being claimed. They are:-
1(1) Information
which is conceded to be relevant to the issues raised in the trial but which is
prejudicial to the Accused. Such information was given to and received by the
police in confidence and on terms that the informants would not be prepared to
give evidence in Court for fear of reprisals. The prosecution has made it
clear that it will not call this evidence and would abandon this prosecution
rather than be forced to disclose it. I pause here to say that it would be the
abandonment of the rule of law and of democracy if an accused person could by
the assertion of a right of disclosure gain immunity against prosecution for
serious crime.
(2) The
second category of statements relate to the alleged involvement of the Accused
and other named persons in major drugs and firearms crimes unrelated to the
murder of Veronica Guerin. These statements may be relevant to future trials.
(3) The
third category of statements contain background information on the relationship
of criminal gangs to each other. They are said to have no bearing on the
murder of Veronica Guerin.
15. Mr.
Patrick MacEntee, S.C., leading Counsel for the Accused sought before the Court
of Trial disclosure to him and his colleagues of all of the statements but
particularly those in category one. As already noted, the prosecution is so
protective of these documents that they are prepared to abandon the prosecution
rather than disclose them. The Special Criminal Court in the almost
instantaneous time-scale to which it had operate considered the authorities to
which it was referred and the facts material to the claim of privilege in
relation to the 40 statements in issue and came to the following conclusions:-
"1. It
accepts the evidence of Assistant Commissioner Hickey that if the statements
are furnished to the accused, the informants, their families and associates,
might thereby be at risk of serious harm, even death.
2. It
also accepts the submission that receipt of information by the police in
confidence is an important part of criminal investigation and that such
confidentiality should be respected by the court unless there are cogent
reasons in the interest of justice for an accused person that it should be
waived. The importance of confidentiality is obviously all the greater where
there is a perceived risk of grievous harm to the informants and others if such
statements or the contents thereof are divulged to an accused person. However,
information furnished to the police in confidence is not entitled to privilege
merely on that account - see the Judgment of the Supreme Court in Skeffington
supra.
3. There
is a clear distinction between statements in the first category and statements
in the other categories referred to by Mr. Charlton. In the former it is
conceded that they contain information relevant to the charge of murder made
against the accused. For reasons already stated, the court is satisfied that
an injustice could possibly be done to the accused if his legal advisers are
not allowed to see the documents in question. If the accused is willing to
waive his right of personal inspection and of being informed of the contents of
such documents, the court will direct production of them to the accused's
solicitor to be seen only by him and the accused's counsel and also on terms
that no information contained therein will be divulged by them to any other
person. If in the opinion of the accused's counsel it transpires that any
statement in category I contains information which may be relevant to the
accused's defence and on which counsel requires further instruction from his
client, the court will consider a further application relating to the statement
in question that its contents, or part thereof, may be divulged to the accused
for that purpose. If the accused is unwilling to waive his foregoing rights
then, in the interest of protecting the informants and others from the risk of
substantial harm, statements in category 1 will not be furnished to the
accused's legal advisers. The Court will read them and decide whether they
appear to have any relevance to the accused's defence to the charge of
murdering Ms. Guerin or any other matter which might be of assistance to him in
this trial.
On
careful consideration the court takes the view that there is a crucial
distinction between the circumstances of this case and those in Burke. There
is a world of difference between a conflict about the risk of grievous harm to
informants whose statements are sought to be protected from disclosure and the
right of plaintiffs to their good name and reputation on the one hand and, on
the other hand, the risk of grievous harm to informants and others measured
against the right of an accused charged with murder to make the best defence
available to him. The right of a person accused of crime to a fair trial is
fundamental to our law and involves elements of justice which go beyond the
requirements of civil litigation. The terms on which the court is authorising
production of the documents in category I are based on that distinction. The
court has also taken into account that in Burke the Supreme Court in effect
rendered moot the production of the documents at issue by striking out part of
the defendant's defence and confining it to a plea of justification. The court
believes that it is not appropriate to interpret Burke as extending the law
into the realm of rights of an accused person in criminal law.
As
to the statements in categories II and III; it seems most unlikely that they
could have any relevance to the accused's defence on the charge of murder of
Ms. Guerin. In short, it appears that the risk of grievous harm to informants
and others in the event of disclosure to the accused of such documents, far
outweighs the remote possibility that any information contained therein might
be of assistance to him in his defence. These statements have a prima facie
right to protection. The court will consider them. Privilege will be affirmed
unless the court is satisfied in any particular case that the content of the
statement could be of assistance to the accused in his defence.
There
is one other matter which may be of relevance to the production of the
statements comprised in category I to the solicitor for the accused. The court
apprehends that some statements in that category may in addition to information
regarding the murder charge, also contains other information which, per se,
would fall within categories II or III. If that is so then photocopies of such
statements should be furnished to the accused's solicitor in which the
irrelevant information is expunged.
For
security reasons, the court also directs that statements to be furnished to the
accused's solicitor shall be examined in this building and shall not leave the
precincts of the court. Each evening they should be handed over to the
registrar of the court for safe-keeping until the following morning. When all
documents have been examined they should be returned forthwith to the
registrar. The members of the court propose to adopt the same security
arrangement and they also will not remove the documents from the precincts of
the court.
Finally
as to statements in categories II and III; the court appreciates that in
reading them they will receive a substantial amount of information which is
prejudicial to the accused regarding his alleged participation in criminal
activities unrelated to the murder of Ms. Guerin. However, the court is
frequently obliged in the course of criminal trials to disregard prejudicial
information which transpires to be inadmissible.
The
members of the court believe that exposure to such information will not inhibit
them in any way from trying this case, and in dealing with all issues which may
arise therein, fairly and in accordance with law."
16. By
Order of the Supreme Court made the 23rd day of January, 1998 the Director of
Public Prosecutions obtained leave to apply to this Court by way of an
application for Judicial Review for (1) an Order of Certiorari quashing the
said Ruling of the Special Criminal Court, (2) a declaration that the said
Ruling was wrong in law and (3) a declaration that the Special Criminal Court
in its Ruling aforesaid acted in excess of its jurisdiction.
17. Mr.
Charlton invites me to deliver in this judgment a wide ranging dissertation on
what the law is. This, I decline to do. As this application is a ground
making one it is, in my view, desirable that this judgment be as narrow as it
can be to deal with the instant problem.
18. It
is unique in my experience that relief of this nature is being sought during
the currency of a trial which remains at hearing. It cannot be strongly enough
emphasised that an expedition to the Judicial Review Court is not to be
regarded as an option where an adverse ruling is encountered in the course of a
criminal trial. I am undertaking this application for judicial review during
the currency of the trial because a need has presented itself to urgently
balance the hierarchy of constitutional rights including, in particular, the
right to life. In the overwhelming majority of cases it would be appropriate
that any question of judicial review be left over until after the conclusion of
the trial. In the instant case, such an approach would have led the Director
of Public Prosecutions to abort the trial and the people of Ireland would have
been deprived of their right to have a particularly heinous crime prosecuted to
a verdict of either conviction or acquittal. The jurisdiction which I am
exercising at present, I find identified in
Tormey
-v- Ireland
,
1985 I.R. p.289. At page 296, Henchy J. said:-
"The
Court accepts that Article 34,
s. 3, sub-s. 1, read literally and in isolation
from the rest of the Constitution, supports the plaintiff's claim to be
entitled to a trial in the High Court. But the Court considers that such an
approach would not be a correct mode of interpretation. The 'full' original
jurisdiction of the High Court, referred to in Article 34,
s. 3, sub-s. 1, must
be deemed to be full in the sense that all justiciable matters and questions
(save those removed by the Constitution itself from the original jurisdiction
of the High Court) shall be within the original jurisdiction of the High Court
in one form or another. If, in exercise of its powers under Article 34, s. 3,
sub-s. 4, Parliament commits certain matters or questions to the jurisdiction
of the District Court or of the Circuit Court, the functions of hearing and
determining those matters and questions may, expressly or by necessary
implication, be given exclusively to those courts. But that does not mean that
those matters and questions are put outside the original jurisdiction of the
High Court. The inter-relation of Article 34, s. 3, sub.s. 1 and Article 34,
s. 3, sub-s. 4 has the effect that, while the District Court or the Circuit
Court may be given sole jurisdiction to hear and determine a particular matter
or question, the full original jurisdiction of the High Court can be invoked so
as to ensure that justice will be done in that matter or question. In this
context the original jurisdiction of the High Court is exercisable in one or
other of two ways. If there has no been a statutory devolution of jurisdiction
on a local and limited basis to a court such as the District Court or the
Circuit Court, the High court will hear and determine the matter or question,
without any qualitative or quantitative limitation of jurisdiction. On the
other hand, if there has been such a devolution on an exclusive basis, the High
Court will not hear and determine the matter or question, but its full
jurisdiction is there to be invoked - in proceedings such as habeas corpus,
certiorari, prohibition, mandamus, quo warranto, injunction or a declaratory
action - so as to ensure that the hearing and determination will be in
accordance with law. Save to the extent required by the terms of the
Constitution itself, no justiciable matter or question may be excluded from the
range of the original jurisdiction of the High Court."
19. It
is accepted by the parties that as regards the applicable law, there is not a
great deal of difference between them. Mr. MacEntee accepts that there are
circumstances where the identity of an informer is granted protection against
disclosure by the Common Law. He submits that the prosecution must disclose
any document which could be of assistance to the defence in establishing a
defence, in damaging the prosecution case or in providing a lead on evidence
that goes to either of these two things. This obligation overrides any claim
of privilege, public interest or otherwise. Mr. Eamonn Leahy, S.C., in closing
the case for the Director of Public Prosecutions says that it is accepted by
the parties that there is a duty of disclosure that rests on the prosecution;
it is accepted by the parties that there is an exception to the duty of
disclosure in relation to the identity of informants and persons who may be
endangered by disclosure and it is accepted that that exception itself is
subject to the innocence-at-stake exemption.
20. The
issue here tends to be more in the area of mechanics than principle. Mr.
MacEntee contends that defence Counsel must participate directly in the process
of determining what would not be disclosed. I have already summarily ruled out
the determination being made by the prosecution team or the police. Mr.
MacEntee would also contend against the determination being made exclusively by
the Court on the ground that it is not privy to defence Counsel's instructions
and to put it crudely would not know what to look for or where the case is
going. To the court of trial, Mr. MacEntee submitted that a criminal trial is
an organic thing which grows and the court of trial would not have the capacity
to appreciate that an apparently insignificant piece of material might develop
significance as the case went on.
Since
Murphy
-v- Dublin Corporation
,
1972 I.R. 215 problems relating to disclosure of documents have been resolved
by the documents being examined by the trial Judge. In
Ambiorix
Limited -v- Minister for the Environment
(No.1), 1992 1 I.R. 227 the Supreme Court declined to reconsider the principles
stated in
Murphy
-v- Dublin Corporation
and said that that decision was based on fundamental constitutional principles
which did not apply to decisions made by the courts of other jurisdictions.
Finlay, C.J. in
Ambiorix
restated the
Murphy
-v- Dublin Corporation
principles as follows at page 283:-
"1. Under
the Constitution the administration of justice is committed solely to the
judiciary by the exercise of their powers in the courts set up under the
Constitution.
2. Power
to compel the production of evidence (which, of course, includes a power to
compel the production of documents) is an inherent part of the judicial power
and is part of the ultimate safeguard of justice in the State.
3. Where
a conflict arises during the exercise of the judicial power between the aspect
of public interest involved in the confidentiality or exemption from production
of documents pertaining to the exercise of the executive powers of the State,
it is the judicial power which will decide which public interest shall prevail.
4. The
duty of the judicial power to make that decision does not mean that there is
any priority or preference for the production of evidence over other public
interests, such as the security of the State or the efficient discharge of the
functions of the executive organ of the Government.
5. It
is for the judicial power to choose the evidence upon which it might act in any
individual case in order to reach that decision."
21. At
page 286, Finlay C.J. as regards the mechanics to be employed said:-
"In
these circumstances, I am satisfied that either by a method of editing the
documents which are referred to in this section of Mr. Matthews' affidavit or
by restricting their inspection to lawyers engaged on behalf of the plaintiffs
who would give to the Court an undertaking that they would not reveal their
contents to their clients, except with special leave to the court, the
commercial and financial interests of the parties who made these
representations should be protected.
I
would hear counsel for the plaintiffs and the defendants further on this
particular issue in the hope that a simple formula could be devised between
them which would give to the plaintiffs adequate information concerning the
material matters contained in this particular collection of documents, and
would give to the persons who wrote to the Department adequate protection of
their commercial and financial interests."
22. These
mechanics of course related to the protection of financial and commercial
interests which are very different to the interests claiming protection here.
They also related to a civil rather than a criminal justiciable controversy.
Director
of
Consumer
Affairs -v- Sugar Distributors Limited
,
1991 1 I.R. 225 concerned an investigation and prosecution into alleged
anti-competative behaviour. Costello J. (as he then was) considered the law of
disclosure from both a civil and criminal stand point. At page 229, he said:-
"When
a claim is made, as it has been in this case, that it is not in the public
interest that relevant documents in the Director's possession should not be
inspected, the court should examine the documents. If satisfied that they form
part of a complaint made to the Director by a member of the public that a
breach of the restrictive practices legislation or orders made thereunder has
occurred inspection should not be allowed unless the court concludes that the
documents might tend to show that the defendant had not committed the wrongful
acts alleged against him.
I
have followed this course in this case. The disputed documents were all
documents forwarded to the Director as part of a complaint made by ASI
International Foods Ltd. that breaches of restrictive practices legislation had
occurred. They do not tend in any way to show that the defendant was not
guilty of the wrongdoing alleged against it. I will therefore not allow their
inspection."
23. The
most analogous case to be present is undoubtedly
Burke
-v- Central Independent Television Plc
.,
1994 2 I.R. 61. It is not diminished as an authority in coming from the civil
side of the court - most of the case law to date has done so.
© 1998 Irish High Court
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ie/cases/IEHC/1998/48.html
