Does evidence from a witness in the Witness Protection Programme abridge the rights of the accused? (Part 2 of 2)

A New Approach to the Witness Protection Programme

As demonstrated in Part 1, Denham J (as she then was) took the view at para. 150 of DPP v Gilligan [2006] 1 IR 107 that no special rules of evidence apply to evidence given by witnesses in a Witness Protection Programme (“WPP”; “the Programme”). While this may be the case at present, I would respectfully disagree that it should be.

While there ought not to be an explicit, hard and fast rule excluding these witnesses from giving evidence, their evidence is so obviously biased in favour of the State that it deserves a depart from the norm and specific treatment by the courts. The onus of developing this standard to ensure fairness should fall on the legislature, and not on the judiciary. What rules should apply to these witnesses would be outside the scope of this article, but they must focus on warnings as to credibility issues and the reasons behind these such as references to State protections and the funding a witness would receive under the Programme. Clear explanations are necessary as to the differences between the evidence of a normal witness and a witness in WPP.

A witness’ evidence should be truthful and impartial. Expert witnesses who give evidence in civil cases, where they may be hired and remunerated by only one party to the action, are still required to ultimately accept that their duty is to the Court and that their evidence is required to be impartial and true (see recently, Duffy v McGee Insultation Services and Anor [2022] IECA 254). However, a civil expert witness must be looked upon differently to that of a WPP witness in a criminal trial, who by virtue of their decision to give evidence for the State, are agreeing not to a once off remuneration, but to the far greater remuneration of being protected and financially supported for an indefinite period by the party they are giving evidence for. This raises fundamental issues as to the credibility of these witnesses, who are beneficiaries of the State purse.

The entire WPP should be put on a statutory footing, including the method of assessment by which An Garda Síochána determine who is eligible to enter the Programme and the extent of the remuneration/protection these witnesses are entitled to. This raises the further issue that An Garda Siochana should not be the deciders of who enters the Programme and instead this should be decided by a multitude of individuals from An Garda Síochána, the Director of Public Prosecutions and the Department of Justice on a case-by-case basis, and by individuals who have no connection to the particular case. This would be in a similar fashion to the independence from investigation requirement for a Superintendent to issue a search warrant pursuant s.29(1) Offences Against the State Act 1939.

Furthermore, there should be a clear and specific warning given to triers of fact as to what exactly a WPP is and what benefits witnesses under this Programme receive. This would benefit accused persons in ensuring that the trier of fact understands the nature of the evidence being given against them by these witnesses and ensuring that no confusion or misapprehension exists as to what exact benefits these witnesses receive for giving this evidence and why these witnesses’ credibility should be questioned from the outset. These witnesses fall into a category of such a potentially prejudicial nature that the truthfulness of their evidence, and the benefits these witnesses receive for entering the Programme should be clearly formulated in statute. This is for the benefit of trials and triers of fact as a whole, to ensure witness evidence is credible and truthful, and to ensure that an accused person benefits from the full protection of their fair trial rights under Article 38.1 of the Constitution.

Conclusion

Ultimately, very little is known about the WPP, and perhaps this is to be expected due to the nature of the beast. Where the courts will draw the line in determining whether a witness’ credibility is too prejudicially jeopardised by virtue of them receiving State protection and funding remains to be seen. However, what is known is that the WPP permits the State to benefit from witnesses who may be more motivated to protect themselves before their duty to tell the truth. While cross-examination is the key to unlocking any potential credibility issues with non-WPP witnesses, these non-WPP witnesses come before the court with, at least in theory, a legal and moral duty to be truthful and give impartial evidence. The same cannot be said with regard to witnesses under the WPP. To say otherwise would be to believe in a Utopian world where witnesses who are clearly benefitting themselves by giving evidence are not prejudiced or impartial in some way. Until some semblance of legislation is enacted to give more information and provide clear and consistent guidelines to the courts in respect of WPP witnesses giving evidence, this area will remain unclear and ambiguous and, ultimately, as an unsatisfactory lacuna in Irish criminal law.