The High Court has refused to permit the Director of Public Prosecutions to seek judicial review of the Special Criminal Court's decision to grant access to confidential statements to lawyers for a man charged with the murder of journalist Veronica Guerin.
Lawyers for the State are expected to seek to appeal the decision in the Supreme Court today.
The trial at the Special Criminal Court of Mr Paul Ward (33), from Windmill Park, Crumlin, with an address at Walkinstown Road, Dublin, was adjourned on Wednesday after the court ruled the defendant's lawyers could have access to the documents. Mr Ward has denied the murder of Ms Guerin at Naas Road, Clondalkin, Dublin, on June 26th, 1996.
The adjournment was granted to allow the State's legal team to seek instructions regarding the documents ruling. Yesterday, the trial was further adjourned until today after Mr Eamonn Leahy SC, for the State, said his side was seeking a judicial review of the ruling.
The State had sought to prevent disclosure of 40 statements from 20 people which had been made to gardai in their investigation into the killing of Ms Guerin.
In his ruling that Mr Ward's legal team could have access to the documents, Mr Justice Barr, presiding, said the Special Criminal Court was satisfied that an injustice could be done to the defendant if his legal advisers were not allowed to see the documents.
On Mr Ward's undertaking to waive his right to personal information, the court directed production of the documents to his solicitor, to be seen only by him and the defence counsel, on condition no information contained in the documents would be divulged by them to anyone else.
In the High Court yesterday afternoon, Mr Peter Charleton SC, for the State, asked for leave to seek judicial review of the Special Criminal Court's decision.
He submitted that the ruling overturned the administrative procedure for information given in confidence to the Garda, on which the courts have operated since the foundation of the State.
He said it had always been understood to be the law that people might communicate in confidence with the Garda, whereby crime might be detected or the peace kept. Maintaining that confidence had been an accepted part of Irish jurisprudence.
Counsel said it was fundamental to public order that the gardai should have the right to exercise such privilege and there was therefore a public interest in the maintenance of that privilege.
He said the only exception was the prosecution's duty to disclose to the defence matters which provided material which could show the innocence of the accused - but nothing in the documents disclosed a potential defence to the defendant. He said the Special Criminal Court had the documents and could determine during the trial if the view of the prosecution accorded with the legal principle on disclosure to the defence.
Counsel submitted the Special Criminal Court ruling was contrary to the applicable rule of law. He was seeking leave to seek an order quashing the decision of the Special Criminal Court and a declaration that it was wrong in law.
Refusing the application, Mr Justice Kinlen said all the Special Criminal Court had done was to give permission to lawyers for Mr Ward to see the documents and not to communicate their contents to the defendant. The documents were to be kept in the court.
He said the State submitted that a lot of those documents related to people who had given information to the gardai but were not prepared to give evidence and who had been promised confidentiality. The court had been told that if their identities were disclosed they might be exposed to danger, including arson attacks or even murder.
He said the gardai submitted that, since the foundation of the State, they had been able to provide confidentiality.
In the present application, it was suggested there was a conflict between the right of the accused to know what evidence was available regarding his alleged part in a murder case and the right of persons to give information to gardai.
The State was seeking leave for judicial review of the Special Criminal Court's decision to grant access to Mr Ward's lawyers to the documents in question. The judge said the High Court has given clear reasons why judicial review applications should deal with civil matters. This was a criminal matter.
He said the defence "should not be put into blinkers" regarding what information might be made available to them. There were strong judicial pronouncements in relation to that.
He said the Special Criminal Court strictly controlled what information was to be made available to Mr Ward's lawyers.
The Special Criminal Court had ruled the defence was entitled to see certain documents, the judge said. It was not for the State to decide whether those documents were of use to the defence. The court's concern was to ensure a fair and just trial was held and to decide what documents could be produced.
He could not see why the documents in question should not be shown to Mr Ward's lawyers. He was quite satisfied that the High Court had jurisdiction over the Special Criminal Court but said it was not for the High Court or any court to interfere with the decision of a trial judge during a trial.