#17520 - Evidence Practice And Principles Protected Witnesses - Evidence II: Practice and Principles

UNRELIABLE EVIDENCE PROTECTED WITNESSES • • • Accomplice may have immunity or be prosecuted for a lesser offence/ receive a less sentence The protected witness gets even more benefits Often an accomplice but:Not all protected witnesses are accomplices in the crimeCan just be someone who is being threatened and in need of protection but not necessarily have anything to gain from giving evidence THE WITNESS PROTECTION PROGRAMME • • • • • • In Ireland, protected witnesses admitted to this programme 1997 established - very much est. in the response to gangland crime In the 90s the state made a concerted effort to tackle organised crime by est. WTP and the crime bureau No legislative basis - no act that deals w the WTP - operates in a fairly secretive manner and this makes sense as to identity of involved persons etc but there's been criticism - from Labour Party in 2007 and Fine Gael (he thinks) - said it should be put on statutory footing but obviously hasn't done so. Legislation could regulate, provide structure and accountability etc. The benefits received: can be ➢ ➢ ➢ ➢ ➢ Relocation of the witness - life in new country New identity Pay them money and expenses Cash in lieu of wages Provision of security to protect their lifeRecognition that due to the evidence they are giving their life is in danger. THE WARNING The People (DPP) v Gilligan 2006 1 IR 107 Gilligan has been involved in much litigation. He was on trial for the murder of veronica Guerin and a number of drug and firearms relates offences 3 witnesses gave evidence against him that were in the WTP It was conducted in the Special criminal court w no jury - often cases occur in SCC where there is risk of jury intimidation. SCC found he was guilty of the drug charges only The SCC believed evidence given by witnesses who were former criminal associates of Gilligan and said that it regarded their evidence as true but decided that it would refuse to act on the uncorroborated evidence of these witnesses. Obviously, there is no jury so it is up to the judges having given themselves their own corroboration warnings, to decide whether they would convict and were satisfied beyond reasonable doubt. Gilligan appealed to the CA - appeal was dismissed but it certified two Qs of public importance to the SC 1. Was evidence obtained from witnesses in the programme admissible in trial 2. What is the test or warning for evidence given by such witnesses. CJ DenhamDecision to establish WTP may be taken by the executive and or the legislative organs for the state, however it is the duty of the judicial branch of government to protect the constitutional right of fair trial, the right to due process. In carrying out this duty, court may have to balance competing rightsIt is necessary to analyse the situation to see if there has been an unfair process, or a breach of the constitutional rights of any personMust balance right of accused to fair trial and the right of the people that offences be prosecuted and in balancing, the test is 'whether there is a real or serious risk of an unfair trial for the accused.'On a hierarchy of constitutional rights, the accused's right to a fair trial is superior to the community's right to have the matter prosecuted1The right of the people is also part of the equation…and encompasses the right to have a fair trial system in the community; and to guard against unfair trials which may lead to miscarriages of justice. The position of victims (and their families) should not be excluded from this equation either. The establishment of the WTP assists in the prosecution of criminal offences and in this way it contributes to the right of the people to have these people convicted. It also must safeguard the rights of witnesses. However, the establishment of WTP and the consequences of the accused must be considered in this mix. Difference between protected witness and an accomplice 1She said accomplice evidence is a 'useful analogy.'Accomplice evidence admissible despite not being corroborated - however 'it has been well settled…that there should be a warning given to the jury on the dangers of convicting on such evidence absent corroborating evidence'The rationale behind the warning for accomplices applies equally to witnesses in the WTP Z v Director of Public Prosecutions 1994