The Special Criminal Court must try all cases in accordance with constitutional rights, writes Carol Coulter, Legal Affairs Correspondent.
One of the responses of politicians and commentators to the recent spate of gangland activity has been to call for such cases to be sent to the Special Criminal Court.
In fact, all indictable crime can already be sent to the special Criminal Court by the Director of Public Prosecutions (DPP), if he considers an ordinary court could not try the case, a power that has been criticised by the United Nations Committee on Human Rights. But even when "ordinary" rather than subversive crimes do go to this court, they must be tried in accordance with the rules of evidence and fair procedure that apply to ordinary courts.
If they fall below these standards, they are subject to appeal to the Court of Criminal Appeal.
Two recent judgments of this court relating to John Gilligan set certain parameters for trying such cases, not least in relation to the use of witnesses who are part of the witness protection programme, currently under review by the Garda.
Gilligan was acquitted by the Special Criminal Court of the murder of Veronica Guerin, though the same court convicted him of drug offences and sentenced him to 28 years' imprisonment.
Gilligan appealed his drug conviction on the grounds of the unreliability of evidence from the accomplices who had been taken into the witness protection programme. He later also appealed the severity of the sentence. The Court of Criminal Appeal upheld his conviction, but reduced the sentence by eight years. In both judgments it set out pointers for the future.
The original trial before the Special Criminal Court had relied on the evidence of three accomplices.
Charles Bowden and Russell Warren were gang members who had knowingly participated in the importation and distribution of cannabis with Gilligan. Bowden also admitted to loading the gun which killed Ms Guerin.
The third accomplice was John Dunne, who was not part of the gang, but who had been paid by Gilligan to import cartons containing cannabis and deliver them to him. He did not know what they contained.
In examining the evidence of Bowden and Warren, the Court of Criminal Appeal was highly critical of the way in which the witness protection programme operated.
"The witness protection programme was badly thought out and almost developed a life of its own," Mr Justice McCracken wrote. "One can hardly blame the witnesses for trying to get the best benefits they could out of it."
The court listed the benefits they obtained: immunity from prosecution for murder, no prosecution for other offences, very light sentences for the offences for which they were prosecuted, new identities and financial support abroad and the repayment of substantial amounts of money seized by gardaí which were "almost certainly the proceeds of crime".
The judgment continued: "Charles Bowden, both on his own behalf and on behalf of Russell Warren, entered into what might be called negotiations with the authorities trying to obtain further and better benefits for himself and his co-conspirator in return for giving evidence." There were no notes of these discussions.
The judges concluded: "There are certainly some very disturbing factors in the way in which the authorities sought to obtain the evidence of these two witnesses.
"This was the first time that a witness protection programme had been implemented in this State and one of the most worrying features is that there never seems to have actually been a programme. There ought to have been clear guidelines from the beginning as to what could or could not be offered to the witnesses."
It did not conclude that the evidence of these witnesses should have been excluded, but listed a five-point "health warning" which should be applied to such evidence in general. It pointed out that the conviction for the importation of drugs depended on the evidence of John Dunne and relied much less on that of the other two.
The Special Criminal Court found that evidence of close association between Gilligan, Bowden, Warren and others - they were together at a wedding, there was evidence of telephone calls and other links - proved that they were members of a "gang". The Court of Criminal Appeal disagreed.
"This court feels that any inferences from these pieces of evidence could only lead to a conclusion that the persons concerned knew each other, as none of the incidents involved anything unlawful."
The Special Criminal Court had rightly decided that evidence of association was not enough on which to base a conviction for the murder of Veronica Guerin, according to the Court of Criminal Appeal, and it added that this approach should also apply to other accusations. It therefore concluded that it would be unsafe to find that Gilligan was the leader of the gang, although it upheld the drug convictions.
The next Gilligan appeal was against the severity of sentence, given that the conviction was for importation and possession of cannabis.
Irish drug-trafficking law does not distinguish between cannabis and heroin in terms of severity of sentence. There is a mandatory minimum 10-year sentence for possession of any drug worth more than £10,000 (€12,700), unless there are exceptional circumstances.
In practice this sentence is rarely applied as the legislation was said to be aimed at drug bosses and those usually caught are couriers, often addicts themselves, which are found to amount to "exceptional circumstances".
However, other drug laws do distinguish between "soft" and "hard" drugs and a person found with a small quantity of cannabis for personal use receives only a small fine, while a person found with heroin of similar value is likely to go to jail.
Nonetheless, the Court of Criminal Appeal did not see any reason to reduce the Gilligan sentence because the drug involved was cannabis. However, it stressed the importance of not sentencing for offences on which the accused has not been convicted.
"The court was entitled to take into account the facts and circumstances surrounding the commission of offences. He was the leader and prime mover and organiser of the importation and sale of the drugs in respect of which he was charged."
Quoting from comments made by the trial judge in imposing sentence, it felt he had "overstepped the line between considering surrounding circumstances and in effect sentencing for criminal activities of which the applicant had not been convicted".
Taking into account sentences imposed on others convicted of similar offences, which ranged from 12 to 20 years, it reduced the sentence to 20 years.
It is now more than seven years since the death of Ms Guerin and no-one has yet been convicted of her murder, despite two trials (the other was of Paul Ward, whose conviction was overturned). The challenge of obtaining evidence that will meet the standard of beating "reasonable doubt" has not, as yet, been met.
And as the Court of Criminal Appeal has reminded us, sending a case for hearing before the Special Criminal Court does not remove the necessity to meet this standard.