ANALYSIS:The Court of Criminal Appeal has laid out key guidelines on conducting criminal prosecutions
THE IMPORTANCE of the issues addressed by the Court of Criminal Appeal in the latest murder conviction to be quashed is underlined by the fact the Chief Justice chose to preside over it.
While the conviction was quashed on the protected witness issue, the ruling contains a strong message to the Garda about the right of suspects to access to a solicitor during interview.
Two main issues were raised by the defence in the case of Bryan Ryan, convicted of the murder of Ian Tobin, who was shot at a party in Blanchardstown in 2007. The original trial heard Tobin’s brother Blake was thought to be the intended victim. The prosecution contended Ryan had driven the motorcycle on which the man who carried out the shooting was carried.
The issues raised by the defence concerned the use of an interview conducted in the absence of a solicitor, and the lack of a warning about the need for caution in accepting the evidence of a witness in the witness protection programme.
Ryan was interviewed six times, and allegedly made admissions as to his role in the killing. These interviews were held in the absence of a solicitor, and the contents of most of them were ruled out by the trial judge following a voir dire(legal arguments in the absence of the jury). A portion of one of them was admitted, as it took place after a brief phone call between the accused and his solicitor.
Mr Justice Murray made sharp comments on the failure of gardaí to ensure the accused man had access to his solicitor. He pointed out the trial judge had ruled the constitutional right of access to a solicitor “was roundly and flagrantly breached and abused” when he ruled out most of the interviews, and added: “This is by no means an unusual ruling in criminal trials generally, including those concerning the most serious of offences, such as murder.”
He condemned this fact, noting it contravened the Constitution and the European Convention on Human Rights, and caused considerable waste of time and expense in criminal trials. He stated the adoption of and giving effect to a uniform practice or protocol, which ensured the right of an arrested person’s access to a solicitor was routinely respected, would ensure evidence properly obtained was admissible at trial.
It will be for the new Minister for Justice to consider this recommendation.
The second issue explored was how to treat the evidence of a person in the witness protection programme. The main witness for the prosecution was Kevin Whelan, who had known Ryan. His evidence was he had discussed with Ryan a plan held by another man, Michael Murray, to shoot Blake Tobin, and that he had been asked to help, and he refused.
The defence argued the jury should have been warned to treat the uncorroborated evidence of a protected witness with caution. The trial judge had spoken extensively to the jury about the danger of accepting the evidence of a person who was an accomplice and a protected witness, but had added: “If the State have not satisfied you beyond reasonable doubt that he is not an accomplice, you must bear in mind my warning about it being dangerous to convict in the absence of corroboration.”
This meant, the Chief Justice said, that if the jury was satisfied he was not an accomplice, there was no need to be cautious about his uncorroborated evidence.
This was wrong, he said. The Supreme Court had decided, in relation to the trial of John Gilligan for the murder of Veronica Guerin, that all witnesses in a protection programme, accomplices or not, should be treated with caution, as they could be in receipt of benefits from it. The jury could accept his or her evidence, but only if they were convinced of the witness’s credibility following a warning.
Both the Garda and the courts will have to take note of these warnings.