Director of Public Prosecutions (applicant) v The Special Criminal Court (respondent) and Paul Ward (notice party).
Paul Ward (applicant) v The Special Criminal Court (respondent) and Director of Public Prosecutions (notice party).
Constitution - Special Criminal Court - Presumption of innocence - Judicial review - Fair trial - Privilege - Whether judicial review is an appropriate option to take in the course of a criminal trial - Whether prosecution can withhold statements from accused on grounds of privilege - Whether the prosecution, the Gardai or the court can determine what documents are relevant to the defence - Whether limited disclosure of statements can be ordered to an accused's legal team - Whether trial rendered unfair by the court considering inadmissible documents containing information prejudicial to the accused - Whether trial should be remitted to ordinary courts.
The High Court (before Mr Justice Carney); judgment delivered 13
March 1998.
The Special Criminal Court exceeded its jurisdiction in ordering disclosure of statements taken by Gardai on terms that such disclosure would only be made if the accused waived his right to personal inspection of the statements and his legal team undertook not to divulge the contents of the statements to the accused. The relationship between defence lawyers and their client would be prejudicially affected if they were to become privy to information which they could not discuss with their client. The constitutional right of an accused to a fair trial must be balanced against the right of the people of Ireland to have organised crime combated and the right of people who furnish information to the Gardai not to be harmed. It is not for the Gardai to decide what material should be disclosed to the court or defence lawyers. It is also not for prosecution lawyers to decide what material would assist the defence. It is for the court to determine which, if any, of the statements, in respect of which privilege is claimed, should be disclosed to the defence. Such determination can be made by the Special Criminal Court without prejudicing the accused and without recourse to another chamber of the court or the ordinary courts.
The High Court so held in quashing the ruling of the Special Criminal Court and dismissing the application of the accused.
Peter Charleton SC, Eamon Leahy SC and Tom O'Connell BL for the first applicant/ second respondent; Patrick MacEntee SC, Barry White SC and Paul Burns BL for the first notice party/ second applicant.
Mr Justice Carney outlined the background to the case. Paul Ward was on trial before the Special Criminal Court accused of complicity in a common design to kill or seriously injure the journalist Veronica Guerin. In the course of the Garda investigation into her murder approximately 3,500 written statements were taken from approximately 1,350 people. Material which was not contained in the book of evidence served on Mr Ward was made available to his legal team for inspection with the exception of 40 statements made by 20 people.
The prosecution claimed privilege from disclosure in respect of these statements and said the statements fell into three categories: firstly, relevant information received in confidence by the Gardai which is prejudicial to the accused; secondly, information regarding the alleged involvement of the accused and others in unrelated criminal activity; thirdly, background information on criminal gangs which have no bearing on the murder of Veronica Guerin.
Counsel for the accused in the Special Criminal Court sought disclosure of all these statements particularly those in category one. Evidence was heard and accepted in the Special Criminal Court from Assistant Garda Commissioner Anthony Hickey to the effect that the disclosure of these statements could create a risk of serious personal harm coming to informants and their families. The Special Criminal Court accepted that confidential sourcing of information was an important part of criminal investigation which should be respected by the courts unless the interests of justice dictated that confidentiality should be waived.
In the instant case the Special Criminal Court was of the view that the statements in category one could be distinguished from the statements in the other categories because they were admittedly relevant to the charge against the accused. However, the interests of informants also had to be protected and therefore the Special Criminal Court would only allow disclosure of these statements if the accused waived his right to personal inspection and his lawyers undertook not to divulge the contents of any statement to the accused without the leave of the Court.
The Special Criminal Court was further of the view that the statements in the two other categories should not be disclosed as the risk of harm coming to informants far outweighed the remote possibility that these statements would be helpful to the defence. The court itself would consider those statements and affirm privilege unless satisfied a statement would be of assistance to the defence.
On 23 January 1998 the Supreme Court gave the Director of Public Prosecutions leave to apply to the High Court by way of judicial review for an order quashing the order of the Special Criminal Court allowing lawyers for the accused to inspect the statements in respect of which privilege had been claimed. Mr Ward also applied for an order remitting the case to the ordinary courts on the basis that the Special Criminal Court had prejudiced itself by reading documents which could contain material prejudicial to Mr Ward.
Mr Justice Carney was of the view that a wide ranging discussion and analysis of the law in this area would be inappropriate as a ground breaking application such as this one required a narrow and focused judgment. Seeking relief by way of judicial review as a result of an adverse ruling during a criminal trial was highly unusual and ordinarily should not be entertained. However, in the instant case a most pressing need had arisen to balance the right of an accused to a fair trial, the right of the people of Ireland to have offences prosecuted and the right of an informant to be protected from personal harm. Mr Justice Carney said that there was not a great degree of difference between both sides on the applicable law in the area. It is accepted that a general duty of disclosure rests on the prosecution but this is subject to exceptional circumstances where such disclosure would endanger an informant. This exception is itself subject to the "innocence at stake exemption" which would require disclosure, or the abandonment of the prosecution, where the information could damage the prosecution case.
Counsel for Mr Ward argued that in determining what is to be disclosed it is essential that defence lawyers be directly involved. Mr Justice Carney declared that under our system of constitutional and adversarial justice there could be no question of Gardai deciding what material should be disclosed to the court or the defence. Similarly, it was not for lawyers for the prosecution to decide what material might or might not be of assistance to the defence.
Problems relating to the disclosure of documents have traditionally been resolved by the trial judge examining those documents in order to decide whether the interest of disclosure or confidentiality should prevail. The principles were set down, albeit in a civil context, in the Supreme Court decision in Murphy v Dublin Corporation [1972] IR 215 and restated by the Supreme Court in Ambiorix Limited v Minister for the Environment (No 1) [1992] 1 IR 277. The Supreme Court stated that the administration of justice is entrusted to the judiciary and the power to compel the production of evidence is an inherent part of judicial power.
However, counsel for Mr Ward argued that a criminal trial was an organic thing which grows and that as a result a trial court, which is not instructed by an accused, is not in the best position to assess the significance to the defence of material before it. It was further argued on his behalf that by examining documents which contained information prejudicial to Mr Ward the Special Criminal Court had prejudiced itself and that the trial should be remitted to the ordinary courts.
Mr Justice Carney then referred to the Supreme Court decision of Burke v Central Independent Television plc [1994] 2 IR 61 which, he said, was most analogous to the present case. In that case an offer was made by the plaintiffs that if documents were disclosed then lawyers for the plaintiffs would undertake to inspect the documents on the basis that they would not reveal the contents of those documents to the plaintiffs without the leave of the Court. The Supreme Court rejected this compromise arrangement on the basis that it would be an undesirable breach in the duty which a lawyer owes to his client to create a situation where lawyers would be privy to possibly significant information which they could not discuss with their client or use on his behalf.
The English Court of Appeal reached a similar decision in R v Davis [1993] 2 All ER 643. In that case the Court of Appeal also laid emphasis on the practical difficulties of such a compromise, for example, where lawyers differ on whether or not to give such an undertaking or where there is a change of lawyers and therefore a change of view.
Mr Justice Carney shared these views on the importance of the lawyer-client relationship and quashed the order of the Special Criminal Court allowing limited disclosure of the statements despite the fact that Mr Ward had consented to his legal team having sight of the statements on the basis that they were not disclosed to him. The members of the Special Criminal Court were experienced in the criminal law both as judges and practitioners and it would be for the court to examine the statements to determine which, if any, would be disclosed to Mr Ward. Mr Justice Carney said that while the court would be exposed to information which could be prejudicial to Mr Ward experienced judges would be able to exclude such information from their minds if such information was inadmissible according to the rules of evidence. He said it followed from this view that the argument of Mr Ward that the trial should be remitted to the ordinary criminal courts should be rejected. Even if such a course was to be regarded as desirable Mr Justice Carney was unaware of any mechanism to bring the case back before the ordinary courts.
Chief State Solicitor for the first applicant/second notice party; M. E. Hanahoe (Dublin) for the first notice party/second applicant.
