Would the witness protection programme have changed the course of the Liam Keane trial, asks Carol Coulter, Legal Affairs Correspondent.
The Director of Public Prosecutions decided not to proceed with the trial of Liam Keane for murder when all the witnesses developed what the trial judge, Mr Justice Carney, described as "collective amnesia", and failed to remember what happened on the night in question. We can only speculate as to why the witnesses did not stand over the statements they had made earlier to gardaí, and their behaviour may yet be the subject of further legal proceedings. However, one of the possibilities raised by Monday's events is that of intimidation, or the fear of intimidation, though as yet no evidence of this has been brought forward.
If witnesses are being intimidated, or fear they might be, is the witness protection programme not there to protect them? If it is, why was it not invoked in this case? The witness protection programme was introduced following the murder of Veronica Guerin, though not on a statutory basis. Instead, the 1999 Criminal Justice Act provided enabling legislation, which permits the Garda Síochána to operate such a programme. It is run by the force, a fact that in itself has given rise to criticism from the Court of Criminal Appeal.
The programme has been used mainly to protect former accomplices who have agreed to give evidence against various accused. John Gilligan was convicted of drug dealing primarily, though not entirely, because of accomplice evidence. Paul Ward was convicted of Veronica Guerin's murder on evidence from accomplices protected by the programme, though this conviction was later overturned.
The criticisms from the Court of Criminal Appeal have focused on the fact that accomplices in serious crimes have evaded prosecution themselves, sometimes for crimes as serious as murder, and obtained financial benefit, in return for giving evidence against former colleagues. These inducements put a question-mark over the reliability of their evidence, unless it was corroborated, the court found. This court has also been highly critical of the informal nature of the scheme, commenting in the Gilligan judgment: "One of the most worrying features is that there never seems to have actually been a programme." A Garda spokesman told The Irish Times that, in view of such comments, the scheme is currently under review.
There has been little use of the witness protection programme in cases that do not involve organised crime or make use of former accomplices as witnesses. The Liam Keane trial involved the death of a young man in a stabbing incident. It had nothing to do with organised crime and the witnesses due to give evidence were not accomplices of the accused.
There have been a few cases where a witness in the programme was not an accomplice. Earlier this year, a court in the trial of a man accused of firearms offences was told of a woman who was taken into the witness protection programme when she changed evidence she had given alleging that the man had committed two murders.
In a case currently running in the Special Criminal Court a former manager of a lap-dancing club was taken into the witness protection programme when he said he was threatened by two men accused of membership of the Continuity IRA. The court heard that he was paid €150 a week on the programme.
The programme can be invoked in a murder trial. However, the gardaí must have had a report of a threat made against an individual, or must suspect that the individual will be intimidated. The programme involves the witness being moved from their home and financed in starting a new life. Details about the programme are scant, but some such witnesses are set up with new identities abroad, along with their families. Such an operation is very expensive, and can only be used sparingly. It is clearly aimed primarily at obtaining accomplice evidence in organised crime cases.
The witnesses must be willing to be relocated, breaking links with families, communities and friends. While this might be an acceptable option for an individual faced with the alternative of a jail sentence, it is likely to be less attractive to someone who has no involvement in criminal activity and wants to live a normal life.
Quite apart from the expense, it is impractical to offer this programme to large numbers of people from communities where criminal gangs are active. Other ways will have to be found to ensure that witnesses will feel safe in coming forward and giving evidence against violent criminals who prey on their communities.