The Director of Public Prosecutions has defended her office's handling of rape cases, saying it was "only very rarely" that it decided not to prosecute due to concerns about the credibility of a complainant.
Speaking at the annual prosecutors' conference in Dublin this morning, Claire Loftus also urged "great caution" in public comment on criminal cases pending before the courts, warning that the risk of prejudicing upcoming banking trials was "particularly acute".
On rape cases, Ms Loftus said society had “a long way to go” in approaching rape and sexual assault cases with “an entirely open and informed mind”. She also stressed, however, that the criminal standard of proof for a rape conviction was still “extremely high”.
When the DPP decided not to prosecute in a rape case, it was “only very rarely that there is any issue about the credibility of the complainant”, she said.
“Of course sometimes we will have concerns, for example, that it would be unsafe to prosecute because of inconsistencies in what is alleged. But in the vast majority of cases it is not because we do not believe the complainant’s account. It is just that there is insufficient evidence to justify charging a suspect and putting all parties through a trial when there is no reasonable prospect of a conviction.”
In rape cases, she said, there were usually no other witnesses to the event, and memories may be impaired due to alcohol consumption and other factors. “Thus it is often one person’s word against another’s,” Ms Loftus remarked.
“Sometimes we will prosecute such cases because of the quality and consistency of the account given by the complainant and because we believe the complainant will make a good witness, able to withstand the rigours of cross examination in the witness box,” she said.
“In other cases, the complainant’s accounts of events may be less clear and the account may not accord with what other independent witnesses recall, making it less likely that the complainant would make a good witness or be able to withstand cross-examination.”
Reiterating her concerns about public commentary about cases, Ms Loftus said that as her office received increasingly complex and high profile cases, it could not lose sight of its responsibility to vindicate a defendant’s right to a fair trial. “It is essential for the media and all persons who pass comment on, or discuss, in whatever forum, matters which are pending before the criminal courts, to exercise great caution and not trespass into areas that will result in prejudice for an accused,” she said.
“The risk increases as a trial date approaches. Where the banking trials are concerned, this risk is particularly acute.”
A number of banking trials are pending in 2016, and Ms Loftus added that they were having “major resource implications” for her office.
On the new Court of Appeal, which is due to be established later this month, Ms Loftus said having a fixed panel of judges hearing all criminal appeals - as opposed to the current ad hoc arrangement in the Court of Criminal Appeal - could help ensure consistency. This should reduce the number of undue leniency appeals taken by the prosecution and sentence severity reviews initiated by defence lawyers.
She said the new court would result in more appeals being heard each year, and the DPP's office had allocated extra staff to make sure the transition is "as smooth as possible." But Ms Loftus said the additional barristers' fees to be paid each year would put pressure on the DPP's budget and she had raised this with the Department of Public Expenditure and Reform.
The director also pointed to a number of recent judgments from the Court of Criminal Appeal, which suggested the DPP should indicate a sentence range it believed was appropriate in criminal cases.
Ms Loftus said the DPP’s role in sentencing was “important but limited” and she did not believe it would be appropriate for her to suggest the precise length of sentence to be imposed by a court.
“I do not favour the very detailed sentencing guidelines such as they have in England and Wales, much less sentence-based plea bargaining common in a number of other common law jurisdictions,” she added.
