Jim OKeeffe Revised Witness Protection 20-03 - Fine Gael

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Jim OKeeffe Revised Witness Protection 20-03 - Fine Gael ...

Fine Gael National Press Office Press Release


    Leinster House Contact: Jim O’Keeffe TD

    Dublin 2 Nick Miller Justice

    Ireland 01 6183358 / 086 6992080

    thTuesday 20 March 2007

    FG will target gangland crime networks with new Witness Protection Programme - O'Keeffe

    FG Document sets out plans for overhaul of Witness Programme

    Fine Gael has unveiled plans to undermine the growing power of gangland by setting up a statutory scheme to persuade hardened criminals to inform on their gangland masterminds, while protecting crucial witnesses from the growing problem of witness intimidation. The Fine Gael proposals (see attached policy document) include setting the Witness Protection Programme on a statutory footing, establishing a special Witness Protection Unit within the Gardaí and launching a witness protection hotline to advise potential witnesses about coming forward as a witness.

“Gangland criminals have grown ever stronger since Michael McDowell took over as Justice

    Minister, and have extended their drug networks into every parish in the country. It is crucial that witnesses with vital information on gangland criminals are protected from the growing problem of witness intimidation. Yet the Witness Protection Scheme set up in 1997 is falling into disuse.

    “Fine Gael is determined to attack gangland crime from the inside out by actively encouraging criminals to inform on their partners in crime. We also want innocent witnesses to be able to report criminal activity to the State without fear of reprisal or intimidation. As things stand, this is not always the case.

    “With the rising prevalence of hardened career criminals using the intimidation of witnesses as a key weapon in their armoury, the current witness protection scheme instils little if any confidence in potential witnesses that their safety will be protected. In Government Fine Gael will move immediately to put the Witness Protection Programme on a statutory footing. This will extend State protection to witnesses, whether they are innocent bystanders, family members, or friends of criminals. But it will also actively encourage hardened criminals to inform on gangland masterminds.

“I want to make it clear this is not an amnesty for criminals. Every case will be decided on its

    own merits, and there will be no automatic guarantee of monetary reward, or that charges will be dropped. But what Fine Gael wants is a new system which will actively subvert the growing threat from organised crime, undermining it from the inside while providing a safety net for those with crucial information. In Government, Fine Gael will:


    ; Set the Witness Protection Programme on a statutory footing by publishing specific

    legislation. This will counteract the public perception that the State can do little to stop

    the intimidation of witnesses, and will also ensure that the Programme has an effective

    high profile similar to that of the Criminal Assets Bureau.

    ; Set up a specific Witness Protection Unit headed up by specially trained Gardaí. This

    unit will follow best international practice by ensuring that Gardaí heading up a specific

    investigation will hand over responsibility for witness protection to the Unit.

    ; Launch a witness protection hotline to ensure that potential witnesses who fear for their

    safety will feel secure in coming forward, and can then obtain information on the

    programme in a confidential and readily accessible way.

    ; Draft guidelines for Gardaí on when and how to use the programme. The current ad

    hoc arrangement lacks any formal basis and relies on the goodwill of Gardaí to check

    on the welfare of witnesses.

“Three levels of protection will be offered under the Fine Gael proposals:

    Level 1 'life threatening', where witnesses could be placed in serious danger by giving evidence, and will need relocation and/or a new identity;

    Level 2 'case specific', where victims or witnesses to specific crimes who have or are believed to have assisted Gardaí may receive verbal threats, phone calls, letters, stalking, property damage, or assaults;

    Level 3 includes witnesses or victims who fear they would place themselves at risk by giving evidence or co-operating with Gardaí.

    “Level 1 witnesses would be offered a range of options set out in statute including a new identity, sustained financial support, indemnity against criminal prosecution, relocation and related solutions. Legislation will determine who can avail of this category of protection, such as the level of the threat to the potential witness, the value of their testimony to trial, and the priority placed on apprehending the accused. This will be balanced against the potential harm to the communities where the criminal will be relocated. This is the most common use of Witness Protection Schemes in other jurisdictions like Australia given that criminal associates are often the best witnesses in gangland crime prosecutions.

    “Witnesses at Levels 2 and 3 would be offered a number of options including a safety audit of their home, regular scheduled calls from Gardaí, personal electronic warning devices or pagers, assignment to a specific Garda liaison officer, and access to community support or counselling. Department of Justice figures confirm that the current Witness Protection Scheme is being used less and less:

1998 ?52,831

    1999 ?109,671

    2000 ?190,085

    2001 ?459,488

    2002 ?829,989

    2003 ?1,183,482

    2004 ?1,123,889

    2005 ?540,547

    2006 ?610,000


“There is an overwhelming argument for placing the scheme on a statutory basis. In the case of

    the DPP vs Gilligan, Judge McCracken stated that 'undoubtedly the Witness Protection Programme was badly thought out and almost developed a life of its own…one of the most worrying features is that there never seems to have actually been a programme'. Yet an internal review conducted by an Assistant Garda Commissioner which was due in 2005 has still not been published.

    “Any criminal case depends on whether the prosecution has evidence. Any influence which prevents witnesses appearing in court is perverting the course of justice, resulting in the acquittal of guilty parties. Yet it appears that witness intimidation is becoming ever more common. Criminal gangs regard witness intimidation as a standard weapon in their armoury. These include threats, actual injury, or more subtle intimidation.

    “Fine Gael believes that witness intimidation and the reluctance of witnesses to come forward is so patent a threat to our criminal justice system that the record of the current Government is at best an oversight and at worst negligent. We are determined to set that record straight ourselves.”








    March 2007

    Main Proposals

    ; Place the witness protection programme on a statutory footing, in line with international

    best practice, to ensure that we move away from the current programme run on an „ad

    hoc‟ basis by the Garda Commissioner;

    ; Introduce specially trained Gardai heading up a specific unit to liaise with both those on

    the programme and those who are identified by Gardai as in need of protection;

    ; Establish clear guidelines within which the Gardai can operate to ensure the maximum

    protection for witnesses subject to intimidation but also to ensure that Gardai are fully

    aware of their responsibilities to such witnesses;

    ; Ensure that potential witnesses admitted to the formal programme execute

    Memoranda of Understanding which would resemble a contract between the witness

    and the Garda Commissioner whereby the obligations and conditions of entry onto the

    programme are recorded;

    ; Ensure that the legislation strikes the right balance in requiring that the criteria set out

    for admission to the formal programme (based on factors such as the level of the threat

    to the potential witness, the value of their testimony to the trial and the priority of

    apprehending the accused) is considered against the potential harm to local

    communities where (very often) it is a criminal who is relocated under the witness

    protection programme;

    ; Ensure that the legislative framework established for witness protection allows and

    encourages all other arms of government to assist with witness protection



    ; Ensure that the legislative framework also establishes a range of secondary protection

    measures to those witnesses, who although are not in fear of their lives, are

    nevertheless subjected to intimidation; and

    ; Introduce a specific witness protection hotline to ensure that potential witnesses who

    fear for their safety can come forward and obtain information on the programme in a

    confidential and readily accessible way.



    The debates surrounding the administration of criminal justice in this country have traditionally centred around such topics as crime statistics, policing and detection, penal policy, sentencing and rehabilitation of offenders, court procedure and violent crime, with the topic of witness protection rarely at the forefront. Given that the central crux of any criminal case proceedings depends on whether the prosecution have evidence, and such evidence is often garnered from the words of witnesses, it is abundantly clear that the testimony of witnesses is crucial in the operation of our criminal justice system. From this, it is evident that any force or influence which may prevent witnesses from appearing in court, or which may make them reluctant to speak with full candour must be regarded as perverting the course of justice. If witnesses fail to give evidence because of a fear of their own safety, this can lead to people being acquitted of offences which they have committed. This results in the loss of public confidence in the effectiveness and fairness of the courts. Indeed, the very judges who are entrusted to administer justice have referred to the “collective amnesia” of witnesses that is currently

    1permeating throughout the Irish court system.

    There are very real concerns that attempts to tamper with witnesses or tainting the evidence of a witness is on the rise in Ireland. Anecdotal evidence as well as reports every week in the press note that with the spread of powerful and wealthy organised crime groups, the rise in the intimidation of witnesses is not entirely unexpected. Such crime gangs regard it as a standard weapon in their anti-social armoury, to be used as a matter of course whenever the need arises. The level of interference with potential witnesses ranges quite dramatically, with actual threats of death or injury at one end of the scale and more subtle intimidation at the other end of the scale. Added to this, there is the general fear of the public at large, who have the perception that they would be at risk of harm if they went forward as witnesses against major career criminals. The law surrounding the protection of witnesses is therefore crucial in ensuring the proper administration of justice.

    In practice, protection can take numerous forms, be it regular phone calls from a local Garda or at the other extreme, it may require a whole family to be relocated and provided with new identities.

     1st Justice Paul Carney, quoted in the Irish Times, 31 October, 2003


    Given the recent escalation of gangland crime, the time is ripe now for a fresh appraisal of our laws surrounding the protection of witnesses. If this point needs emphasis, it was starkly supplied by Mr. Justice McCracken in DPP v Gilligan where he stated that:

    Undoubtedly the Witness Protection Programme was badly thought out and almost developed a life of its own…one of the most worry features is that there never seems to have actually

    2 been a programme.”

    In light of these criticisms, the Minister for Justice (the “Minister”) instigated an internal review

    undertaken by the Garda assistant commissioner of our Witness Protection Programme, which although stated to have been substantially completed in 2005, is still awaiting publication by the Minister. As shall be outlined, the law in relation to the protection of witnesses in Ireland is currently not codified and instead operates on an „ad hoc‟ basis, administered by the Gardai.

    Fine Gael believes there is now an urgent need to tackle this issue by providing for a clear systematic approach to witness protection through the introduction of specific legislation, the form of which is set out below. Such legislation is common throughout other common law jurisdictions, recognising the importance of witnesses in the administration of criminal justice. This recognition is visible by the fact that numerous jurisdictions‟ programmes, which seek to protect witnesses at risk of intimidation, are on a statutory footing ensuring there are clear and precise guidelines as to how they operate.

Witness Protection in Ireland

    In suggesting the real need for reform in this area, it is first necessary to understand the current legal provisions under Irish law that deal with witness intimidation and protection. As noted already, there is a real lack of statutory measures enacted to deal with witness intimidation. The common law offences of perjury and contempt of court are often referred to in any consideration of this topic. Both the law society and the Garda have called for these offences to be placed on a statutory footing, given that it is recognised, specifically in the case of contempt of court, to be “a lack of clarity with regards to defining the offence and the punishment relating

    3to it.” These offences have yet to be enacted in legislation but nonetheless are considered

     2th DPP v Gilligan, Court of Criminal Appeal, 8 August 2003.

    3 Colman P. O’Donnchadha, Witness Intimidation Criminal Justice in Crisis?, Cork Online Law

    Review 5, 2004.


    relevant in the context of the current debate, although their deterrence factor is questionable

    4 given the relative lack of such convictions.

    In terms of statutory measures, there is in comparison to other common law jurisdictions, very little in place. The Witness Protection Programme here was established in 1997 under the direct operational control and administration of the Garda Commissioner, with no legislation passed establishing the parameters and details under which the programme would operate. However, there were a number of provisions introduced related to the intimidation of witnesses in the Criminal Justice Act 1999 (the “Act”). Specifically, section 39 of the Act provides that where the court is satisfied that a person is likely to be in fear or subject to intimidation in giving evidence, that person may give evidence through a live video link. Also, the s. 41 of the Act created a new statutory offence of intimidation of witnesses which attracts a maximum sentence of 10 years imprisonment. Furthermore, s.40 of the Act created a new offence of attempting to track down witnesses who have been relocated under the Witness Protection Scheme, attracting a maximum sentence of 5 years. Again, although the creation of these offences is to be welcomed, they cannot be utilised properly given that they are operating as stand alone provisions and not within a comprehensive codified witness protection scheme. This is evidenced by the figures in relation to these new offences:

    ; In respect of s.41 of the Act, the offence of intimidation of witnesses, there were 2

    5; and convictions in 2002, 7 in 2003, 9 in 2004 and 4 in 2005

    ; In respect of s.40, the Minister has confirmed that there have been no proceedings

    6commenced in respect of this offence and therefore no convictions in respect of it.

    If witnesses themselves fear that they cannot be protected by the current measures in place and choose not to give evidence, it is no wonder there is such a lack of convictions. As it currently stands, one cannot blame witnesses in fear of intimidation who are not willing to risk admitting themselves to an informal and fundamentally flawed programme.

    The current „ad hoc’ nature of the witness protection scheme, with no systematic structure in place on a statutory footing, has led to severe criticism by judges and academics alike. Indeed issues surrounding criminal convictions on the ground of uncorroborated evidence of

     4 There were 0 proceedings commenced for perjury in 2004 and only 3 proceedings commenced in 2005 with 0 convictions.

    5th Response by Minister for Justice, Dail Question, 7 November 2006.

    6th Response by Minister for Justice, Dail Question13 December 2006


accomplices has arisen in numerous cases such as DPP v Holland, DPP v Ward and DPP v

    Meehan. One of the most worrying features recognised by the courts in DPP v Gilligan is that

    witnesses under the current programme could increase their demands as their court appearance came closer. This was recognised as down to the fact that there was no structure or agreed understanding in place between the authorities and the witness in question, with the

    7 programme described by the court as “fluid”.

    From this, it is abundantly clear that our witness protection programme should now be put on a statutory footing. The whole issue of witness intimidation needs to be fundamentally re-visited with a view to introducing more stringent measures that would help increase public confidence. Given that we have no mechanism in place for the collection of objective and verifiable data of witness intimidation in Ireland, we can only rely on anecdotal evidence to suggest that witness intimidation is increasingly prevalent. Indeed one State Prosecutor noted that one in ten criminal cases he dealt with could not be successfully prosecuted because of witness

    8intimidation. Having said this, research in the U.K. noted the following in relation to the prevalence of intimidation of witnesses:

    i. During the last decade at lease 10% of crimes reported to police result in witness


    ii. At least 20% of crimes not reported by witnesses are not reported because of a fear of


    iii. Fear of intimidation deters a greater number of witnesses than victims from reporting

    crime whereas actual intimidation is more likely to directed at those who have been the


    iv. In the vast majority of cases (85%) reported in the 1998 British Crime Survey,

    harassers of victims and witnesses were the original offender and in other cases, the

    harasser was from the offender‟s family or friends;

    v. There appear to be no significant differences in intimidation by crime type; and vi. No assaults reported by witnesses were followed by intimidation but 30% went

    9unreported due to fear of reprisal.

     7 Op. cite n.2 above

    8th Michael Murray, Sunday Times Intimidation is the stock and trade of Limerick Criminals, 9

    November 2003.

    9 Cited in Fyfe, Nicholas, Protecting Intimidated Witnesses, Ashgate Publishing: Aldershot [2001]


    Although we are not of the same size as the U.K., it would be remiss of us to think that such figures tell us nothing of the potential prevalence of such intimidation here in Ireland. Given the anecdotal evidence from those working in the courts and such figures from the U.K, it is clear that the problem of witness intimidation is not fantasy but is very real and now needs to be dealt with systematically in order to minimise the role it plays in our Criminal Justice system. As it stands, it would appear that even the „ad hoc’ scheme in place now is being used less and

    less, as is borne out by the diminishing cost of the programme revealed in a response to a Dail question:

    1998 ?52,831

    1999 ?109,671

    2000 ?190,085

    2001 ?459,488

    2002 ?829,989

    2003 ?1,183,482

    2004 ?1,123,889

    2005 ?540,547

    2006 ?610,000

    The above figures do little to dismiss the perception that with the rising prevalence of hardened career criminals using the intimidation of witness as a key weapon in their armory, the current witness protection scheme instills little (if any) confidence in potential witnesses that their safety can be adequately looked after.

    The following is what Fine Gael proposes to do, understanding that if we are to continue ignoring the potential witnesses who suffer either real or perceived instances of intimidation it is likely to have serious long term consequences for the future of our Criminal Justice system. Proposed Reforms

    The most pressing need is for the current witness protection programme to be put on a statutory footing to ensure that we move away from a witness protection programme run on an ad hoc‟ basis by the Garda Commissioner. It is clear that in the current climate where witness

    intimidation is becoming more prevalent, we need to establish a systematic approach to witness protection with specially trained Gardai heading up a specific unit to deal with such a programme. This would follow international best practice in ensuring that those Gardai heading up a specific investigation would not also be tasked with putting witness protection measures in


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