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Cite as: [1999] 1 IR 60, [1998] IEHC 48

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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.