Pre-trial video depositions may deter ‘memory loss’, says Bar Council

VIDEOTAPING witnesses’ depositions before a suspect is returned for trial or even charged should be considered to prevent cases collapsing due to claims of amnesia or intimidation, the Bar Council argued yesterday.

In a submission to the Oireachtas justice committee, senior barristers also said the witness protection programme should be placed on a statutory basis to make it more transparent, establish definite criteria for those admitted and to clearly lay down the witnesses' rights and responsibilities.

The committee is hearing representations over six days in response to public disquiet over the collapse of the Liam Keane murder trial after witnesses, claiming memory loss, refused to confirm earlier statements made to investigating gardaí.

The issue of how the justice system can better handle increasing gangland violence is also being investigated.

Senior Counsel George Berminghan argued the longer it took between gardaí taking statements and a witness giving evidence in court, the more likely he or she would decide to change their story. This was either because of direct intimidation, fears of reprisals or, if the witness was a friend or relative loyal to the defendant.

Mr Bermingham, who called for more judges to cut down on delays in hearing rape and murder trials, said a videotaped deposition, before a district court, could be taken if the gardaí identified witnesses who "might have a change of heart or might be forced into a change of heart".

There are rarely used provisions brought in after concerns about intimidation following the trial of a number of IRA men for the manslaughter of Garda Jerry McCabe allowing for such depositions to be taken after a person is returned for trial. But Mr Bermingham said: "A procedure like this could be operated in the period prior to the return for trial and indeed possibly it could be extended to the positions prior to the charge."

The Bar Council also believes the witness protection programme should be formalised by law. This follows criticism of the scheme by the Special Criminal Court following John Gilligan's unsuccessful appeal against his drug smuggling conviction. The court criticised the management of key witness Charles Bowden, who was described as a liar in Gilligan's original trial.

Both the Bar Council representatives and members of the Human Rights Commission, who also appeared before the Dáil committee, argued against the introduction of a new offence of membership of a criminal gang, based on the opinion evidence of a chief superintendent, as is the case for subversive organisations.

"Gang membership is a very loose and amorphous concept compared with, for example, IRA membership," said Michael Farrell, of the Human Rights Commission.