No bias arose from Northern Ireland’s Director of Public Prosecutions (DPP) being involved in a criminal case after previously representing a co-accused who pleaded guilty, the Court of Appeal ruled yesterday.
Senior judges also held that Barra McGrory QC’s challenge to the terms of an anonymity order for police surveillance witnesses did not amount to an abuse of process.
Confirming that the appeal centred on issues of law alone, Lord Justice Higgins acknowledged that it raised a fundamental issue about the “strict dichotomy” between the prosecution and defence in any criminal trial.
His verdict came in a failed challenge to a screening decision which led to three Belfast men being acquitted of conspiracy to rob. Charges had been brought over an alleged attempted security van heist in Belfast in 2009.
The men cleared are: Bernard Rooney, 43, of Donegall Road in the city; Alexander Carlin, 38, and Mark McKeaveney, 36 – both of Iris Street.
Another man detained at the scene with a knife subsequently pleaded guilty to attempted robbery and possession of an offensive weapon. Mr McGrory had represented him before being appointed DPP.
Charges against the three co-accused depended on police witnesses who wanted anonymity before they would testify at trial.
A judge decided their identities should be protected but refused to grant them screening from the defendants.
That decision prompted the prosecution appeal which defence lawyers claimed to be an abuse of process.
It was also submitted that the DPP’s involvement gave rise to an appearance of bias.
Concerns were heightened by senior prosecuting counsel in the appeal having also previously acted for a fifth man who was cleared at an earlier stage due to insufficient evidence.
Barristers for the defendants argued there was a risk of confidential if not privileged information being imparted in the application.
Defence counsel becoming prosecutor in the same case fundamentally undermined legal professional privilege, it was contended.
Leave to appeal was refused following a hearing in 2012, leading to the acquittal of Mr Carlin, Mr Rooney and Mr McKeaveney being directed under the terms of the Criminal Justice Order 2004.
Setting out full reasons yesterday, Lord Justice Higgins said senior prosecuting counsel and the DPP both waived their legal privilege over opinions on the merits of mounting the appeal.
“It is clear from that document that the appeal raises issues of law alone,” he said. “The challenge to the involvement of the DPP and counsel does not in our view give rise to problems of abuse of process as that principle has developed over recent years.
“Equally it does not give rise to the kind of questions posed in matters relating to allegations of judicial bias, whether perceived or actual.”
The judge added, however, that the case raised a question on whether counsel who previously acted for a co-accused who pleaded guilty should then mount an appeal in a different prosecutorial role while the same criminal trial is still ongoing.
Lord Justice Higgins acknowledged: “Posed in this way it can be seen that the question could have the effect of clouding the sharp distinction between the roles of the prosecution and the defence in the criminal trial process.”