David Mooney v Commissioner of an Garda SÍochána, and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 14 March 2014
• Neutral Citation: [2014] IEHC 155
• Court: High Court
• Docket Number: [2012 No. 5808P]
• Date: 14 March 2014

[2014] IEHC 155

THE HIGH COURT

[No. 5808 P/2012]

Mooney v Cmsr of An Garda Siochana & Ors

BETWEEN:

DAVID MOONEY

PLAINTIFF

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

CONSTITUTION ART 34.1

INDEPENDENT NEWSPAPERS (IRL) LTD & ORS v JUDGE ANDERSON 2006 3 IR 341 2006/29/6308 2006 IEHC 62

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998

IRISH TIMES LTD & ORS v IRELAND & ORS 1998 1 IR 359

CRIMINAL JUSTICE ACT 1999 S40(1)

CRIMINAL JUSTICE ACT 1999 S40(2)

DOE v REVENUE CMRS 2008 3 IR 328 2008 2 ILRM 114 2008/14/2866 2008 IEHC 5

ANSBACHER (CAYMAN) LTD, IN RE 2002 2 IR 517 2002 2 ILRM 491 2002/2/294

CRIMINAL JUSTICE ACT 1999 S40

CRIMINAL ASSETS BUREAU ACT 1996 S10(7)

COMPANIES ACT 1990 S8

CONSTITUTION ART 38

DE GORTARI v JUDGE SMITHWICK 1999 4 IR 223 2000 1 ILRM 463 1999/12/3225

CONSTITUTION ART 34

DPP v SHAW 1982 IR 1

Criminal law - Witness security program - Agreement with Garda - New identity in return for information - Protection to witnesses who aid prosecution authorities in the trial and conviction of particular individuals - Admission of evidence - Constitutional law – Administration of justice in public – Reporting restrictions - Right to fair trial

Facts: The witness security programme is a non-statutory programme whereby An Garda Síochána provides security advice and services to witnesses whose lives might otherwise be in danger. The plaintiff alleges he entered into an agreement with An Garda Síochána to be placed on said programme in return for information regarding two individuals involved in criminal activity. The "exit agreement" was said to omit previously agreed terms. The plaintiff sought specific performance of what he was originally promised, together with damages for breach of contract, negligence, misrepresentation, breach of legitimate expectation and breach of his constitutional rights as well as other ancillary relief. The central issue to the proceedings concerned the admission of witness evidence and whether the administration of justice was to be heard in open court. The deponent, on behalf of the Chief State Solicitor, averred that the giving of such evidence in open court would lead to the defendant being unable to guarantee the safety of those either involved in the working of the programme or those who benefit from its protection.

Held: The judge accepted that the general trend of the authorities to date was to the effect that the order being sought could only be made in exceptional circumstances and that each case must be decided on its own unique facts. The judge concluded that Article 34.1 of the Constitution did not exist in a vacuum. He noted there were clearly competing constitutional rights and interests. The plaintiff had a right to have his case heard and reported upon in public, whilst the An Garda Síochána had a right to carry out their duties for the general welfare of society. The judge decided this was an exceptional case and that if proceedings were permitted to be heard in public the lives of persons giving evidence and persons identified during the course of the trial could be at stake. He stated the order sought would not compromise the plaintiff's right to a fair trial. He established that the plaintiff's right to achieve the vindication he required would not be threatened. The judge arrived at the overall conclusion ( Re Ansbacher (Cayman) Ltd [2002] 2 I.R. 517, Doe v. Revenue Commissioners [2008] 3 I.R. 328, Irish Times Ltd v Ireland [1998] I I.R. 359 considered) that the defendants would be impeded from a fair trial if the matter was to be heard in public and that directions from the trial judge would not be sufficient to deal with the concerns as indicated by the deponent in relation to disclosure in evidence of information concerning the programme.

-Proceedings heard otherwise than in public

1 JUDGMENT of Mr. Justice Gilligan delivered on the 14th day of March, 2014

2 1. The plaintiff in these proceedings participated in the Witness Security Programme established by the Commissioner of An Garda Síochána arising from his involvement in the investigation and trial of two individuals associated with organised and subversive crime, who were convicted in the Special Criminal Court on 19 ^th November, 2003, and sentenced to terms of imprisonment. The trials in question were held in open court as were a subsequent application for leave to appeal, which was dismissed, and a certified point of law of exceptional public importance application which was also dismissed by the Supreme Court on 4 ^th April, 2006. There were no reporting restrictions in place at those trials and the plaintiff gave evidence in open court. There was no redaction of any of the judgments delivered by the courts which dealt with those matters. The plaintiff avers that during the criminal proceedings he was questioned in open court about the Witness Security Programme. The question at issue before this Court is whether the defendant is entitled to have the within proceedings, initiated by the plaintiff, heard otherwise than in public.

3 2. The proceedings were initiated by plenary summons issued by the plaintiff on 13 ^th June, 2012. According to the general endorsement of claim attached thereto the plaintiff seeks an order directing the defendants to take all necessary steps to place the plaintiff in the State's Witness Security Programme (hereafter "the Programme"). The plaintiff also seeks a declaration that he entered an agreement with the defendants to the effect that, in return for the provision of certain information to them in relation to the trial of two individuals, they would place him in the Programme. The plaintiff believes that the agreement between him and An Garda Síochána which marked his "Exit" from witness protection did not reflect what he had initially been promised. The plaintiff claims that he was in fact promised, inter alia, a new identity and all the elements necessary for the constitution of a new identity, such as a new date of birth, and that he would be given substantial assistance with relocation to a third country. The first named defendant is of the view that the "Exit agreement" contained the entirety of the relationship between the parties. The plaintiff seeks specific performance of the agreement which he alleges was originally concluded between the parties and which he claims is not reflected in the terms of the "Exit agreement" and also seeks a declaration that the defendants are guilty of misfeasance in public office in inducing the plaintiff to provide certain information to An Garda Síochána in the knowledge that failure to fully realise the agreement allegedly made with the plaintiff would result in grave risk of injury to him. The plaintiff also seeks damages for breach of contract, negligence, misrepresentation, breach of legitimate expectation and breach of the plaintiff's constitutional rights as well as other ancillary relief.

4 3. By way of notice of motion issued on 3 ^rd December, 2013, the defendants to the within proceedings applied to this Court for an order providing that the plenary action be heard otherwise than in public along with other ancillary orders. The deponent on behalf of the Chief State Solicitor (hereafter "the deponent") avers that the issues which will be in dispute before the Court in these proceedings will relate primarily to the operation of the Witness Security Programme which is a non-statutory programme whereby An Garda Síochána provides security advice and services to witnesses whose lives might otherwise be in danger. The deponent avers that it is the intention of the defendants to call a number of Garda witnesses who have been involved in the Programme for the last number of years. During the course of the hearing in this matter and in response to a question from the Court Mr. Farrell SC, counsel for the defendant moving party, stated that the number of such witnesses was likely to be somewhere in the order of nine. The deponent avers that these witnesses, by the nature of their work, would not only be familiar with the details of the plaintiff's involvement with the Programme but also with the involvement of other witnesses who are beneficiaries of the Programme. The publication of the identities of those Gardaí would render them targets for subversives and persons involved in organised crime.

5 4. The deponent also avers that the matter in dispute before this Court will require examination of the operation of the Programme in order for the issues between the parties to be determined. The view of the first named defendant is that this would result in the disclosure of the identities of a number of civilians who have an involvement with the Programme and who would then also become a possible target for subversive and organised criminal organisations seeking information in relation to participants in the Programme. This information would, in the view of the first named defendant, compromise the operations of the Programme.

6 5. The relationship between the Programme and its participating countries, and in particular the country which relates to the plaintiff's case, would also be the subject of evidence in order for this matter to be determined. The view of the first named defendant is that this could be detrimental to the relationship of this State with other participating countries, that relationship being entirely based on the goodwill of the obliging third country. The deponent avers that the giving of such evidence in open court would lead to the first named defendant being unable to guarantee the safety of those either involved in the working of the Programme or those who benefit from its protection.

7 6. In particular, the deponent avers that as such the Programme is concerned not only with the integrity of the...