Changes in international law and public demand for greater accountability have led to consideration of change in the DPP's policy of not explaining his decisions, writes Carol Coulter, Legal Affairs Editor.
For more than 20 years there have been calls from victims, their relatives, public representatives and commentators both for prosecutions to be undertaken in specific cases, and, where that does not happen, for the DPP of the day to explain why. Such calls have always been resisted by the DPP, whose office is independent and who is legally obliged not to receive representations from anyone if it constitutes an interference in the discharge of the functions of the office.
This has not prevented demands, from time to time, for an explanation of a decision not to prosecute. In 1983 the then DPP, Eamonn Barnes, was the subject of a sustained campaign asking him to explain why a nolle prosequi had been entered in a specific case. It concerned that of Malcolm McArthur, who had been convicted of the murder of a nurse, Bridie Gargan, but a nolle prosequi was entered in relation to another man, Donal Dunne, for whose death McArthur was thought responsible.
Barnes issued a lengthy statement, stressing that the points were general, rather than relating to any specific case. He said if reasons were given in one case they would have to be given in all, and if these reasons were more than bland generalities, unjust consequences would arise.
"The reason for non-prosecution in a case often has little or no relevance to the issue of guilt or innocence," he said. The reason was often the non-availability of a particular proof, perhaps an essential witness having died or gone abroad. To announce this would amount to "conviction without trial in the public estimation". In other cases it might be a problem with a witness that, if published, would cause pain to that witness.
His successor, James Hamilton, reiterated this view, stating that not only would giving reasons violate the presumption of innocence that can only be displaced by a trial in due course of law, it could also prejudice the good name of a potential witness, perhaps by stating the witness was not thought to be reliable.
It has, of course, been the practice that the Garda Síochána is given reasons why prosecutions are not proceeded with, in order to assist the force in preparing such cases in the future.
However, such blanket prohibition on giving reasons for non-prosecution was challenged in the European Court of Human Rights, when the Northern Ireland DPP did not prosecute anyone in connection with the killing of an unarmed man, Pearse Jordan, by the security forces. In Northern Ireland, unlike in England and Wales, inquest juries were not allowed bring in a verdict of unlawful killing. All these circumstances "cried out for an explanation", according to the court, which found that this contravened Article 2 of the European Convention on Human Rights, protecting the right to life.
This is one major factor influencing Hamilton's decision to consider a change in policy. He also pointed out in the document released today that the general requirements of openness and transparency in public bodies mean the greatest possible amount of information, subject to the protection of people's rights, should be made available.
He outlined six fundamental questions that would have to be taken into account. These were: the protection of the good name of suspects; the protection of the good name of witnesses; the possibility that future developments in a case might be compromised; the protection of police sources; whether privilege should be attached to statements by the DPP on reasons for not prosecuting; and whether specific legal considerations arose in relation to the entry of a nolle prosequi after charges were laid.
No specific mechanisms for giving reasons for decisions not to prosecute are advanced in this discussion document. The options outlined range from a limited change, bringing DPP practice into line with the ruling of the European Court of Human Rights, to an inclusive approach, where reasons would be given where it was possible to do so without compromising the interests of anyone, but none given where this was not possible.
Every approach throws up its own problems. For example, if reasons were only to be given in serious cases, it might be difficult to decide what categories to include.
The DPP also asks whether public statements should be made, either in court or in the form of statements to the media, and outlines the problems that might arise, including protection from being sued, through such statements attracting privilege.
He acknowledges the arguments against giving reasons are weaker when they apply to victims and other interested parties, than when given to the public at large. But if reasons are given to victims, it will be inevitable they will leak into the public domain.