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What is the Witness Protection Programme, and how is it viewed by the Irish Courts? (Part 1 of 2)

By: Gregory Murphy BL

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Introduction

Ireland’s Witness Protection Programme (“WPP”; “the Programme”) has received a lot of renewed interest in recent weeks as Jonathon Dowdall will enter the WPP following his decision to give evidence as a State witness in the trial of Gerard Hutch. Announced mere days before Mr Hutch’s trial was due to begin, this was surprising to many with questions being asked as to what protections Mr Dowdall would receive from the State in return for becoming a State witness. This posed questions such as (i) what is the WPP and, (ii) in return for indefinite governmental protection and financial backing, can these witnesses’ evidence be trusted?

The Foundation

Ireland’s WPP has no basis in statute and is in fact run and funded by An Garda Síochána. Its terms and the assessment as to how one becomes eligible are unknown, leaving one to wonder how it actually works, who makes the decision to permit witnesses into the Programme and what safeguards are in place to ensure witnesses remain impartial and truthful in giving their evidence. The Programme was developed in response to gangland crime in the late 1990s and has been criticised for its lack of transparency and its potential to incentivise witnesses to give favourable evidence in return for government protection and/or more favourable sentences.

DPP v Gilligan

There are few judicial decisions dealing with the use of witnesses in the WPP. This suggests that these witnesses are used few and far between. The use of these witnesses may increase however as Justice Minister Helen McEntee has indicated that the future of the Programme is to be examined by her Department, indicating that the Programme may soon find itself statutorily grounded.

The judiciary’s first main tussle with the WPP, and the leading case on this area, came in the form of the trial of John Gilligan when he was charged with the murder of journalist Veronica Guerin and numerous drugs offences. An appeal was brought by Mr Gilligan focusing on the fact that witnesses under the WPP had given evidence for the State. On behalf of the Supreme Court in DPP v Gilligan [2006] 1 IR 107, Denham J (as she then was) noted that:

“There are benefits to both the prosecution and the witness. The essence of the programme is protection and in the protection the witness will receive benefits from the State” (para. 92).

She recognised the potential danger in permitting a protected witness to give evidence and the Court went as far as stating that the evidence tendered by these witnesses should be treated with caution and not with any assurance that prejudicial evidence would not be given (para. 93).

In contemplating the evidence of witnesses who are protected under the Programme, Denham J usefully analogised with the evidence of accomplices giving uncorroborated evidence. At para. 71, she cited with approval the statement of Butler J in Dental Board v O’Callaghan [1969] IR 181 (p. 184):

“The rule is that the tribunal of fact, be it District Justice or jury, must clearly bear in mind and be warned that it is dangerous to convict upon the evidence of an accomplice unless it is corroborated; but that having borne that in mind and having given due weight to the warning, if the evidence is nonetheless so clearly acceptable that the tribunal is satisfied beyond doubt of the guilt of the accused to the extent that the danger which is generally inherent in acting on the evidence of an accomplice is not present in the case, then the tribunal may act upon the evidence and convict.”

She went on, at para. 73:

The rationale behind the common law rule requiring a warning before acting upon the uncorroborated evidence of an accomplice applies equally to the evidence of a person in, or who is going to join, a witness protection programme. There is a danger that the witness may not tell the truth in the hope of receiving benefits. In relation to the witness protection programme this applies also to expectations the witness may have into the future for him or herself and their family. Thus there is the danger that the witness may seek to obtain additional benefits by his or her evidence. There are dangers especially where there has been a grant of immunity and/or the prosecution has supported the giving of a light sentence.

In Gilligan, Denham J stated that there are no special rules of evidence relating to witnesses in a WPP (para. 150):

The ordinary rules as to the admissibility of evidence apply. There is no rule excluding such evidence. The facts and circumstances have to be considered in each case. Such evidence is admissible but should be excluded if the circumstances fall below the fundamental standard of fairness”.

Conclusion

The WPP remains ambiguous with regard to how it operates. There is a distinct lack of oversight by the legislature, and the judiciary have been left in the unenviable position of attempting to guide how these witnesses should give evidence and what protections should exist for an accused person. However, the judiciary can only do so much with the information (or the lack thereof) they possess. Judges are not given a breakdown on a case-by-case basis of what benefits a certain witness will receive for giving evidence as a witness under the WPP, how long they will receive these benefits for, and whether the witness’ evidence must be given in a certain manner or to a certain extent before they can avail of their WPP benefits. The result of this lack of information is that a court is operating with one arm tied behind its back in the making of directions as to how these witnesses’ evidence is to be treated and/or trusted. Until clearer guidance and information is provided by the legislature, accused persons at the mercy of a witness in the WPP may find that their constitutionally protected right to a fair trial, is not so protected after all.

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