The Director of Public Prosecutions' review of the policy of keeping reasons for not prosecuting confidential could assist people with intellectual disabilities obtain justice, according to Inclusion Ireland.
The National Association for People with an Intellectual Disability says that cases involving people with an intellectual disability are not brought before the courts generally due to questions over their capacity to testify.
"We are aware of cases concerning sexual assault of people with an intellectual disability being brought to the attention of the DPP, which are not brought forward for prosecution for reasons relating to the capacity of witnesses to give evidence, " chief executive Deirdre Carroll said.
Director of Public Prosecutions, James Hamilton
"The question, however, of what determines capacity remains unanswered. Knowing why cases have not been brought forward will help us to inform the new legislation."
Her comments follow the DPP's move to review his office's decades-long policy of not giving reasons for decisions not to prosecute.
In a document published today on the DPP's website, entitled the Reasons Project, James Hamilton seeks submissions from interested parties on how this could be done without infringing the rights of accused people and witnesses.
The policy of not giving reasons not to prosecute, especially in high-profile cases or those involving violence and death, has frequently been criticised by victims and their families, as well as by politicians and commentators.
"Victims of crimes who have complained to the authorities have felt aggrieved because they are not told the reasons for decisions not to prosecute," Mr Hamilton said.
"I have long felt that if a method of giving reasons to victims without doing injustice to others could be devised then, in the interests of fairness to victims, I should attempt to do so."
In an interview on RTÉ radio today, Mr Hamilton said it would be difficult to give reasons for his decisions without cutting the rights of other people, especially suspects who are not being prosecuted.
"My own instinct is to be very cautious and to start with the more serious type of offence and see if we can do that," he said.
Mr Hamilton said he would like to be able to give a reason for his decisions without casting a doubt on an "identifiable suspect" in such a way as they would be condemned by the public, or without disclosing the existence of a Garda informant or Garda investigation methods.
In 1983, Mr Hamilton's predecessor, Eamonn Barnes, issued a public statement outlining the need for the policy. He said if reasons were given in one case they would have to be given in all, and the reasons given, if they were of a technical nature, could amount to a conviction without trial while depriving the suspect of due process.
This position was reiterated by Mr Hamilton in 1998.
However, he says in the document published today that a number of factors had raised the need to consider a change in policy.
These included:
- a judgment of the European Court of Human Rights in 2003 which required reasons for decisions to be given by the state to relatives of those killed by lethal force;
- increasing recognition that victims should be informed of decisions that affected their lives;
- recognition that public confidence in the justice system would be enhanced if there was greater understanding of prosecution decisions.
- the emergence of mechanisms in other common law jurisdictions where reasons were given, at least to victims and their relatives;
Fine Gael's Alan Shatter welcomed the DPP's review by saying it makes an "important contribution to the debate on victims' rights".
Labour's Pat Rabbitte said: "Decisions not to prosecute, taken on what may be very compelling legal grounds, can cause greater trauma for victims of crime and the lack of information as to why decisions are made can add to the distress."