John Gilligan yesterday lost his appeal against conviction by the three-judge Special Criminal Court of having possessed drugs for supply to a drugs gang.
But the Court of Criminal Appeal, while affirming the conviction on the possession and supply charges, held it would be unsafe to find that Gilligan had been the leader of "the so-called gang".
The appeal court, consisting of Mr Justice McCracken, Mr Justice Quirke and Mr Justice Peart, will meet in November to consider Gilligan's appeal against the 28-year sentence handed down by the Special Criminal Court in March 2001.
At the same time, the court will consider an application under Section 29 of the Courts of Justice Act, 1924, a provision which allows it to certify a point of law of exceptional public importance to be decided by the Supreme Court.
Mr Cian Ferriter, counsel for Gilligan, asked that the matter be put in for mention only on October 7th.
Gilligan was convicted of 11 drug-related offences involving the importation and possession for the purpose of sale and supply of a vast quantity of cannabis resin between July 1994 and October 1996.
At the same trial he was acquitted of a charge of murdering journalist Veronica Guerin and of three charges relating to importation of firearms.
In its judgment, the court stated the background to the charges arose from when Ms Guerin had been brutally murdered in her car in traffic on June 26th, 1996.
While it had never been alleged he had been present at the murder, the way in which the trial court had dealt with the murder charge had some relevance to the charges of which he had been convicted.
The case against Gilligan had been dependent to a large extent on the evidence of Charles Bowden, Russell Warren and John Dunne who, on their own evidence, had been accomplices of Gilligan.
They had claimed to have taken part in drug-supply activities with Gilligan who had claimed in his appeal that the Special Criminal Court had erred in placing any reliance on their evidence, and in particular on the evidence of Bowden or Warren, which Gilligan had claimed ought to have been excluded on the basis it was so flawed it could not be relied upon. As the evidence had been admitted it had been argued that Gilligan, as a result, had been precluded from getting a fair trial.
Gilligan had argued that their evidence had been obtained to some degree by offers of incentives to them through the witness protection programme. Counsel for Gilligan had criticised the manner in which the programme was carried out.
"Clearly, in seeking to ensure the preservation of public order and the protection of the public, the gardaí and the prosecuting authorities are entitled to offer protection to witnesses who might be intimidated or fearful that if they gave evidence there would be serious reprisals against them or their family," the judges stated. This necessarily also involved the offering of benefits to such witnesses who could not be fully protected unless such benefits were given, which was in the nature of a witness protection programme.
The question arose whether it was unlawful to offer benefits beyond a certain degree.
If there had been an agreement between a witness and the gardaí that he would give specific evidence in return for money, such evidence would have been unlawfully obtained and may be excluded, but the events in the Gilligan case had come nowhere near that situation.
"Undoubtedly the witness protection programme was badly thought out and almost developed a life of its own," the judges said. "One could hardly blame witnesses for trying to get the best benefits they could out of it but to say their evidence was actually bought or that they were bribed is not borne out."