There is a real prospect of threats to the lives of people who have made confidential statements to gardai investigating the Veronica Guerin murder should their identities become known, the State told the Supreme Court yesterday.
This is a situation where one person - Ms Guerin - is dead, the homes of two others have been burned to the ground and a further two have been told they will be killed, Mr Peter Charleton SC said.
He said 40 statements from 20 witnesses should not be disclosed to lawyers for Mr Paul Ward, who is charged with murdering Ms Guerin.
In its submissions the State said the statements were privileged against disclosure and that none of those whose statements were being withheld could give evidence that might exonerate Mr Ward.
It was submitted that all of the 20 witnesses who made statements, being people who gave information to the gardai about the activities of the criminal gang of which, it is alleged, Paul Ward was a member, would be subject to an immediate threat should their identities be disclosed.
The State also argued that it is operationally important that the existence of witnesses regarding matters not directly concerned with the murder of Ms Guerin should not be disclosed before a time when their statements became relevant, when people "who may now be fugitives in respect of warrants issued by the Special Criminal Court (SCC)" were charged with offences.
What the Supreme Court had to determine was, where there was a normal duty of disclosure, the prosecution was entitled to hold back the 40 statements for good or sufficient reason and whether that established a privilege against disclosure, Mr Charleton said.
The privilege was not just that of the State but also of the person who made the statement in question, he said.
Mr Charleton was making submissions on the second day of the appeal by Mr Ward (33), from Windmill Park, Crumlin, with an address at Walkinstown Road, Dublin, against a High Court decision that his trial should go before the non-jury SCC and that access by his lawyers to the 40 statements should be prohibited unless the SCC, having examined the statements, determined whether any they should be disclosed.
The appeal concluded yesterday and judgment was reserved.
Mr Ward is charged with the murder of Ms Guerin at Naas Road, Clondalkin, on June 26th 1996. He denied the charge at the SCC last January but his trial has been adjourned to October 6th to facilitate the Supreme Court appeal.
In closing submissions on behalf of Mr Ward yesterday, Mr Patrick MacEntee SC said the law recognised the existence of informer privilege but this was subject to the "innocence exception" and the requirements of constitutional and natural justice.
The prosecution must disclose any documents which could assist the defence in establishing a defence or in damaging the prosecution case and that obligation overrode any claim of privilege, public interest or otherwise.
Documents relevant to the defence must be disclosed and the test of relevance should have a low threshold, he said. Inadequate disclosure was one of the causes of the Guildford Four and of other miscarriages of justice.
He said the DPP should either abandon the prosecution of Mr Ward or put up with the ruling of the SCC, allowing Mr Ward's lawyers access to the confidential statements.
The DPP should not be allowed to "behave like a spoilt child", threatening to abandon the prosecution if the statements were disclosed, Mr MacEntee said.
In his submissions, Mr Charle ton said the DPP had said that, if a decision was made to disclose statements to the defence, he would have to consider the options and these included abandoning the prosecution.
He said the SCC had departed from all established precedent in ruling that lawyers for Mr Ward could have access to the statements, and that a pre-trial motion for disclosure should not become the means whereby an accused argues for an acquittal. The test has always been as to whether a failure to disclose deprives the accused of the right to a fair trial, Mr Charleton said.
Whether something could under mine the prosecution case or assist a positive defence case had to be looked at reasonably and it was subject to review throughout the entire course of the trial. There should be a balance between disclosure of documents and the upholding of the right to life and bodily integrity of those who might be identified.
That balance could only be exercised by upholding the prosecution's right against disclosure, save in circumstances where the material could be relevant in establishing a defence for the accused. The statements in question were not relevant and did not establish a defence.
The ability to help the gardai in confidence has been of immense benefit in pursuing organised crime in Ireland, it was submitted. It was a huge disincentive to such communications for the SCC to rule that they may be read by lawyers for an accused. This ruling was contrary to law.
