Dublin criminal John Gilligan has lost his last legal bid to overturn his 20-year conviction on drug trafficking charges.
In an important judgment addressing for the first time issues relating to the admissibility of evidence from persons involved in a State witness protection programme, the five-judge Supreme Court yesterday unanimously rejected all Gilligan's grounds of appeal and set down criteria regarding how evidence from persons in a witness protection programme should be treated.
In an ideal world, Mrs Justice Susan Denham remarked, there "would be no need for witnesses who were in a WPP or who were accomplices of an accused". However, the development of a protection programme was "a reflection of the need arising in our times" and "a consequence of a society where there are gangs, drug trafficking, violence and death and very significant sums being made from criminal activity".
The State was entitled to establish such a programme and it was for the courts to ensure a fair trial. This case involved the State's first witness protection programme but the fact that it had deficiencies and was not perfect "was not immediately fatal" to it.
Mrs Justice Denham, with whose 70-page judgment the other four judges agreed, said the issue at the core of the appeal was the credibility of the evidence against Gilligan of three accomplices - Charles Bowden, Russell Warren and John Dunne - all participants in a witness protection programme.
She found their evidence at Gilligan's trial in 2001 before the non-jury Special Criminal Court was properly treated and she rejected his argument that the programme as applied in his case resulted in unfair procedures and breached his right to a fair trial. While aspects of procedures followed by gardaí in the case compromised the evidence of Bowden and Warren, they did not compromise the entire criminal process system.
Gilligan's appeal came before the Supreme Court last July after the Court of Criminal Appeal referred two points of law - (1) the circumstances and the extent to which evidence from witnesses in a State protection programme is inadmissible in a trial in due course of law and (2) the nature of corroborative evidence required from accomplice witnesses who have participated in such a programme.
In her judgment, Mrs Justice Denham said the constitutional root of Gilligan's case was that he was entitled, under Article 38.1 of the Constitution, to a trial in due process of law. After a detailed analysis of the evidence of Bowden, Warren and Dunne, she upheld the Special Criminal Court's approach to that evidence.
She held that the evidence of accomplices, subject to an appropriate warning, may be relied upon by a trial court. She was satisfied the same approach could be taken to a witness who was or would be in a protection programme.
The administration of justice required that the public had a right to "every man's evidence" except for evidence excluded by law or the Constitution. She was satisfied the evidence of Bowden, Warren and Dunne was not so excluded. Once their evidence was admitted, their credibility and the weight of their evidence was addressed by the Special Criminal Court and she would not intervene in that decision.
There was no legal reason why the State could not establish a witness protection programme and could not conduct it confidentially, the judge added. The activities of gardaí in relation to such a programme were relevant and must be scrutinised carefully.
No special rules of evidence attached to a protection programme but the ordinary rules regarding admissibility of evidence applied, she said. A warning should be given of the dangers of convicting a person on accomplice evidence if it was not corroborated. Once that warning was given, however, it was open to a court to convict on the evidence of a person in a witness protection programme without corroboration.
In Gilligan's case, it was clear the Special Criminal Court had properly addressed the issues of accomplice, corroborative and circumstantial evidence, she held. The trial court understood the critical nature of the evidence of the accomplices and had taken a cautious approach.
Mrs Justice Denham also held there was evidence before the Special Criminal Court to justify its conclusions that Gilligan, Bowden, Paul Ward, Brian Meehan, Shay Ward and Peter Mitchell were "a gang" engaged in drug trafficking; that Gilligan was "the prime mover" in importing cannabis resin; the "supreme authority" among the gang members and "the largest beneficiary" of the proceeds of the sale of cannabis.
