A judge has said the Special Criminal Court is “minded” to look at sensitive material pertaining to two men charged in connection with the murder of dissident republican Peter Butterly because the DPP is “unable and unwilling” to do so.
Ms Justice Tara Burns was speaking on Thursday after prosecution counsel told the court on Wednesday that gardaí had refused to hand over sensitive material which allegedly concerns the two men.
Defence counsel has indicated it will object to the court viewing the material.
On Wednesday Paul O’Higgins SC, for the State, referred to a letter written by Assistant Commissioner Michael O’Sullivan to the DPP, in which An Garda Síochána cited fears for the safety of prosecution senior and junior counsel as the reason for not handing over the material.
He said members of the Bar had been previously assaulted and there were concerns about it becoming commonly known that senior counsel and junior counsel would have access to such material.
It followed Ms Justice Burns ruling last Friday that the prosecution counsel should view the material.
Peter Butterly, a 35-year-old father of two, was shot dead shortly after 2pm in the car park of the Huntsman Inn at Gormanston, Co Meath on March 6th, 2013.
He died from gun shot wounds to his neck and upper back.
Laurence Murphy (62), of McDonough Caravan Park, Triton Road, Bettystown, Co Meath and Ray Kennedy (40), with an address at Whitestown Drive, Blanchardstown, Dublin 15, have pleaded not guilty to membership of an unlawful organisation, styling itself the Irish Republican Army, otherwise Oglaigh Na Éireann, otherwise the IRA on March 6th, 2013.
Mr Kennedy is also charged with carrying out an act intending to pervert the course of justice by destroying a SIM card on March 6th, 2013.
Last Thursday Detective Chief Superintendent Anthony Howard, who is head of the Special Detective Unit, told Mr O’Higgins he believed that on March 6th, 2013, Mr Kennedy and Mr Murphy were members of an illegal organisation, namely the IRA.
He said he formed this belief having considered material held by An Garda Síochána in December 2017.
Ms Justice Burns subsequently ruled that the prosecution should view this underlying material to ensure that the disclosure process had been properly carried out.
She said: “The duty on prosecution counsel which the court has identified may not arise in every case but on the facts of this particular case where Detective Chief Superintendent Howard has indicated he based his belief on the underlying material, a duty arises on prosecution counsel to view the material and to ensure that the disclosure process has been properly attended to in this specific case.”
However the gardaí refused to hand over the material to the DPP and Mr O’Higgins told the court that the DPP agreed with the security concerns of the gardaí.
On Thursday morning, Ms Justice Burns said the court did not hear any evidence pertaining to Assistant Commissioner O’Sullivan’s concerns.
She also said that, in her ruling last week that the prosecution should view the material, she did not specifically rule that junior counsel, or indeed both counsel, would have to review it.
The judge said any concerns about a potential conflict of interest — whereby the material observed by a prosecuting counsel would later assist them in a defence role — could be met by “reverting to a practice from years ago” whereby prosecuting counsel in the Special Criminal Court would not defend in the same court.
She also said that while the prosecution will not be reviewing the material because gardaí will not make it available to the DPP, even if they did “it appears that the DPP would not allow counsel to view it”.
Ms Justice Burns said that, arising from this position, the defence say that Det Chief Supt Howard’s evidence “has become inadmissible as the prosecution has failed to comply with a ruling”.
However, she said the matter is “not as simple as that”.
She referred to the prosecution counsel’s position to be “extremely unfortunate” and said it put a “greater onus” on the court.
However, she said that while the “DPP is unable and unwilling to perform the task”, the court nonetheless has a supervisory role in relation to disclosure that it must carry out.
She said: “Despite the failure of the prosecution counsel to carry out their disclosure duties, this does not render the evidence of Det Chief Supt Howard inadmissible due to the ultimate disclosure supervisory role which the court possesses.”
Ms Justice Burns also told the court that she was open to being dissuaded and said she would listen to submissions from the defence.
Hugh Hartnett SC, for Mr Murphy, indicated to Ms Justice Burns that the defence team will object to the court viewing the material.
John D Fitzgerald SC, for Mr Kennedy, told her that the defence team want to “proceed carefully”, that they need to make further inquiries and need time to research the law.
Ms Justice Burns told the defence that she wants the two accused to be “fully aware” that if the court views the material she wants the men to understand that it’s a “very specific task” and “that task finishes once the court views the material”. She added: “It doesn’t carry over.”
The trial continues on Friday at 10.30am.