The use of evidence from accomplices in a witness protection programme is constitutional, writes Carol Coulter, Legal Affairs Correspondent.
The Gilligan appeal is the first case where the Supreme Court has been asked to consider how the courts should use evidence given by beneficiaries of the witness protection programme.
In its judgment yesterday, the court acknowledged the primacy in Irish law and the Constitution of the right of the accused to a fair trial. "On a hierarchy of constitutional rights, the applicant's right to a fair trial is superior to the community's right to have the matter prosecuted," it stated.
It then went on to consider whether the use of evidence from people in the witness protection programme had compromised the right to a fair trial.
Lawyers for John Gilligan had argued that such evidence was tainted because those giving it were accomplices in the commission of crime and received benefits from the State that could be perceived as inducements to give certain evidence.
Such benefits included immunity from prosecution for serious crimes, early release, temporary release and money, specifically in this case the return to them of money that could have been the proceeds of crime.
Overall, "the effect of the witness protection programme was such as to create a perception in the minds of the witnesses, John Dunne, Charlie Bowden and Russell Warren . . . which affected their capacity to give unprejudiced evidence".
The court was asked to give particular attention to a phrase in a memorandum from a department of Justice official, who had attended a meeting with Charles Bowden, which stated that "the granting of an overnight [temporary release] would only be considered for a very special occasion and would be dependent on his/their performance in court".
The reference to performance in court was later scratched out, but much was made of it, both in the original trial in the Special Criminal Court and in the two appeals, including this one, as it appeared to tie privileges to the evidence being given.
The judgment acknowledged that this demonstrated "an inappropriate approach by personnel at the meeting", but the fact that the words were scratched out showed that this attitude was not the basis of the decision on temporary release taken by the department.
The approach to be taken to evidence from witnesses in the programme is similar to that for evidence from accomplices. This includes a warning to the jury of the danger of convicting on such evidence if it is not corroborated.
This does not mean that there should never be a conviction without corroboration. Such corroboration can include circumstantial evidence. The Supreme Court found that the trial court, in this case the Special Criminal Court and not a jury, was cautious about convicting on the evidence of accomplices in the programme and did seek corroboration.
The Supreme Court also acknowledged that the witness protection programme was not well organised or executed, but this did not totally invalidate it. It declined to accept rules proposed by Gilligan's legal team for the operation of such a programme.
These included that the quality of the witness should be assessed before acceptance on to the programme. It was for the courts to assess witnesses, it said. It also rejected arguments that the advantages to the witness of entering the programme be spelled out.
"The essence of such a programme is protection," it said. "In such circumstances it may be necessary to keep much of this information confidential to protect the witness."
However, the issue of immunity from prosecution should, in general, be made known. It also stressed that the payment of money which was the proceeds of crime should not be made to an accomplice expected to give evidence.
The ground rules for the operation of the witness protection programme, therefore, appear to be that gardaí should keep records of their dealings with such witnesses, that any offer of immunity from prosecution should be made known to the defence and the court, though not offers of early release or relocation, and that there should be no offer of money, especially if it involved the proceeds of crime.
When it came to trial, such witnesses should be scrutinised rigorously and the court should exercise extreme caution in accepting their evidence without corroboration, but such corroboration is not essential.