The Director of Public Prosecutions would not comment yesterday on his decision not to initiate prosecutions after considering the Report of the Tribunal of Inquiry into the Blood Transfusion Service Board (BTSB).
The director, Mr Eamonn Barnes, believes he is constrained from commenting on specific cases. During his years in office his public remarks have been limited to how his office is run, and to suggested reforms of the criminal justice system.
Speculation about why there are to be no prosecutions resulting from the tribunal report and a preliminary report by the Garda cannot therefore be based on his views or those of his assistants. Following publication of the tribunal report, a legal expert told The Irish Times that people should "not expect too much" to result from it.
"Expecting a report like this to be the basis for a criminal prosecution is like looking at a fish and expecting it to fly. It might, but for a very short distance," he said.
One of the legal difficulties with tribunals is that their reports do not have the status of a file resulting from a Garda investigation. Indeed they may have an opposite effect; tribunal law states that a statement or admission by a person before a tribunal of inquiry is not admissible as evidence against that person in any criminal proceedings. Even an admission of liability by any individual cannot be used against him or her. However, the evidence of one person can be used against another in a criminal prosecution.
This means that effective criminal prosecutions might only be possible if the Garda re-assembles the evidence by interviewing those who have been before a tribunal, and asks them the same questions the tribunal asked. Under these circumstances, however, individuals have to be cautioned and can refuse to answer incriminating questions.
While the BTSB tribunal report may have taken a critical view of a number of individuals, success in a criminal prosecution would require proof of criminal liability beyond reasonable doubt, and could require proof of recklessness to the extent of criminal intent.
While the report accused some of failing in their duty, this falls short of proof of criminal recklessness.
The DPP may also have determined that in some instances lines of responsibility within the BTSB were not formally defined, while a prosecution might also be hampered by the fact that some critical instructions within the organisation were not passed on in writing.
In addition no minutes were kept to record discussions of an important "scientific committee" within the BTSB which met during 1976 and 1977, and the tribunal report acknowledged that evidence as to what it discussed was "extremely poor".