Ward v Special Criminal Court

• Jurisdiction: Ireland
• Judge: O'Flaherty J.,Lynch J.
• Judgment Date: 01 January 1999
• Neutral Citation: 1998 WJSC-SC 13031,1998 WJSC-SC 13054
• Court: Supreme Court
• Docket Number: [1998 No. 30 J.R.; S.C. Nos. 92 and 105 of 1998],(92 & 105/98)
• Date: 01 January 1999

WARD v. SPECIAL CRIMINAL COURT & DPP

AN CH ÚIRT UACHTARACH

BETWEEN

PAUL WARD

Applicant/Appellant

.V.

THE SPECIAL CRIMINAL COURT

Respondents

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant/Respondents

.V.

SPECIAL CRIMINAL COURT

Respondents

and

PAUL WARD

Notice Party/Appellant

1998 WJSC-SC 13031

Hamilton C.J.,

O'Flaherty J.,

Barrington J.,

Keane J.,

Lynch J.,

(92 & 105/98)

THE SUPREME COURT

Synopsis

- [1999] 1 IR 77 - [1998] 2 ILRM 493

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S47

CRIMINAL PROCEDURE ACT 1967 S6(1)

DPP V MELEADY & GROGAN 1995 2 IR 517

AG V BRIANT 1846 15 MWR 169

MARKS V BEYFUS 1890 25 QBD 494

DIRECTOR OF CONSUMER AFFAIRS V SUGAR DISTRIBUTORS 1991 1 IR 225

DPP V REDDAN & HANNON 1995 3 IR 560

SKEFFINGTON V ROONEY 1997 1 IR 22

BURKE V CENTRAL INDEPENDENT TELEVISION 1994 2 IR 61

CONSTITUTION ART 38.1

R V DAVIS 1993 2 AER 643

AMBIORIX LTD V MIN FOR ENVIRONMENT (NO 1) 1992 1 IR 277

MURPHY V DUBLIN CORPORATION 1972 IR 215

R V LEIPERT 1997 2 LRC 260

AG, PEOPLE V MCGLYNN 1967 IR 232

WARD V DPP UNREP SUPREME 18.12.1997

KAVANAGH V IRELAND 1996 1 IR 321, 1997 1 ILRM 321

URBAN RENEWAL ACT 1986

1 Judgment delivered on the 20th day of July, 1998, by O'Flaherty J. [NEM DISS]

2 The appellant, Paul Ward, was charged at the Special Criminal Court on the 18th October, 1996, with the murder of Veronica Guerin on the 26th June, 1996. Veronica Guerin was shot dead while she was driving her motor car on the Naas Road, Dublin. Two people on a motor bike drew up along side her car and a firearm was discharged by one of them. It is the prosecution's case that while Paul Ward was not at the scene of the crime he was complicit in the plot to murder Veronica Guerin and, for example, had arranged that the killers could come back to his house so that the disposal of the motor bike would be effected. The prosecution say that Ward's complicity is further demonstrated because there was an exchange of sixteen telephone conversations by mobile phone on the day of the killing between the appellant and others with whom ??? is said he acted in concert in relation to the murder. The prosecution propose to call one Charles Bowden who they say will implicate the accused in the ??? and the prosecution also say that they will rely on admissions made by the accused.

Course of Proceedings at the Special Criminal Court

3 The Director of Public Prosecutions certified under s. 47 of the Offences Against the State Act, 1939, that the ordinary courts were, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Mr. Ward. Therefore, Mr. Ward was brought before the Special Criminal Court and duly charged. On 24th April, 1997, the accused was served with a "book of evidence" in accordance with Rules of the Special Court and in line with s. 6(1) of the Criminal Procedure Act, 1967.Counsel for the appellant said it was a rather short book of evidence.

4 On the 22nd July, 1997, the accused's trial was set for the 13th January, 1998.

5 On the 19th December, 1997, the last day of the Michaelmas term, the prosecution served a substantial volume of additional evidence upon the accused. Further additional evidence was served throughout the first week of January, 1998.

6 On the 12th January, 1998, an adjournment of one week of the trial was granted by the Special Criminal Court to allow the defence to consider these additional materials. At this stage, too, it was clear that while the prosecution disclosed the existence of 40 statements (made by 20 people) they were claiming privilege in respect of them on the basis that this was information that had been given by informants in regard to some, at least, on the basis that they would be treated in confidence and that they would not be required to give evidence. Further, it was, and is the State's case that there is a definite risk to life and property for some of the informants if their identity is disclosed.

7 The defence requested disclosure of these documents. Initially, the members of the Special Criminal Court (Barr J. presiding) proposed that a separate division of the Court might examine the documents. However, on the 15th January, 1998, the Court ruled that this was not a practical proposition.

Assistant Commissioner Hickey's Evidence

8 On the 15th January, 1998, Assistant Commissioner Anthony Hickey, gave evidence of the danger posed for potential witnesses. He asserted that there were people interested in this case who had the resources and access to firearms and so forth, and that they would resort to virtually anything, including murder, to maintain a "wall of silence" which they believe is necessary to protect themselves and their criminal activities.

9 Aside from the danger to witnesses, the Assistant Commissioner said that if the confidence of the informants were to be breached it would make it virtually impossible for the gardai to investigate serious crime.

Three Categories of Statement

10 Mr. Charleton, S.C., at the invitation of the Special Court, gave an outline of the prosecution case to the Court. He also informed the Court that there were three categories of statement for which privilege was claimed. The first category contains information which it is conceded is relevant to the issues raised in the trial but which are prejudicial to the accused, ie. they do not help the appellant's defence nor do they help to demolish the prosecution case in any way. The second category of statement relates to information about the alleged involvement of the accused, and other named persons, in criminal activity; notably major drug and firearm crimes unrelated to the murder of Veronica Guerin. The third category of statement contains background information which it is said is even further removed from the murder of Veronica Guerin and which can have no possible bearing on such murder.

11 Mr. MacEntee, S.C., counsel for the accused, submitted to the Special Criminal Court - a submission that was repeated before us - that with particular regard to the first category which the prosecution concedes contains documents that are relevant to the charge of murder against his client, he and his colleagues cannot form any view as to the relevance or otherwise of the information therein contained without seeing the statements and ascertaining the identities of the informants. Counsel also submits that a particular statement, though containing information which on its face is prejudicial to the accused, might in the light of facts known to the accused and his advisors, but unknown to the prosecution, cast a different light on the information and on the informant which could be helpful to the accused's defence.

Ruling of the Special Criminal Court

12 The Special Criminal Court on the 21st January, 1998, concluded as follows:-

13 2 "1. It accepts the evidence of Assistant Commissioner Hickey that if the statements are furnished to the accused, the informants, their families and associates, might thereby be at risk of serious harm, even death.

14 2. It also accepts the submission that receipt of information by the police in confidence is an important part of criminal investigation and that such confidentiality should be respected by the court unless there are cogent reasons in the interest of justice for an accused person that it should be waived. The importance of confidentiality is obviously all the greater where there is a perceived risk of grievous harm to the informants and others if such statements or the contents thereof are divulged to an accused person. However, information furnished to the police in confidence is not entitled to privilege merely on that account - see the judgment of the Supreme Court in (Skeffington .v. Rooney [1997] 1 IR 22).

15 3. There is a clear distinction between statements in the first category and statements in the other categories referred to by Mr. Charleton. In the former it is conceded that they contain information relevant to the charge of murder made against the accused. For reasons already stated, the court is satisfied that an injustice could possibly be done to the accused if his legal advisers are not allowed to see the documents in question. If the accused is willing to waive his right of personal inspection and of being informed of the contents of such documents, the court will direct production of them to the accused's solicitor to be seen only by him and the accused's counsel and also on terms that no information contained therein will be divulged by them to any other person. If in the opinion of the accused's counsel it transpires that any statement in category 1. contains information which may be relevant to the accused's defence and on which counsel requires further instruction from his client, the court will consider a further application relating to the statement in question that its contents, or part thereof, may be divulged to the accused for that purpose. If the accused is unwilling to waive his foregoing rights then, in the interest of protecting the informants and others from the risk of substantial harm, statements in category I will not be furnished to the accused's legal advisors. The Court will read them and decide whether they appear to have any relevance to the accused's defence to the charge of murdering Ms. Guerin or any other matter which might be of assistance to him in his trial."

Judicial Review of Special Criminal Court's Decision

16 On 23rd January, 1998, this Court, on appeal from Kinlen J., granted leave to issue judicial review proceedings to quash the order of the Special Criminal Court.

Judgement of Carney J.

17 The matter came for hearing before Carney J. who delivered his judgment quashing the ruling of the Special Criminal Court on the 13th March, 1998. After a very careful and comprehensive review of the...