The acquittals in the Jobstown trial have been followed in some quarters by cries of a "political conspiracy" with many questioning why the seven accused were ever charged with false imprisonment.
These cries belittle the independence and impartiality of the Office of the DPP where decisions to prosecute are made after carefully examining a file prepared by An Garda Síochána containing all statements and video evidence then gathered.
This would have included numerous statements not only from Joan Burton and her assistant but also many of the gardaí in proximity to the events and a significant amount of video evidence from Garda CCTV cameras, a Garda helicopter, the complainants' phones and protestors' phones posted on YouTube.
Once received, a file is examined by a solicitor called a “directing officer” who directs what charges are to be brought using clearly established and transparent guidelines.
The directing officer does not ask “Is the DPP going to win?” and then only prosecute crimes where she believes a prosecution will be secured. Rather, she will consider whether a prosecution is in the public interest and whether a prima facie case lies against each suspect.
‘Reliable evidence’
One asks whether there is “admissible, relevant, credible and reliable evidence” sufficient to establish the criminal offence alleged and where a jury “could conclude beyond a reasonable doubt that the accused was guilty”.
She will also consider whether there is a reasonable prospect of securing a conviction before a reasonable jury. The guidelines specifically state that a preconception on the part of the prosecutor as to the views which may be held by the jury about the subject of the offence is not a material factor.
In the course of criminal trials, witnesses may turn out to be less credible and the frailties of human memory may be brought in to sharp focus when countered against CCTV or video footage.
Legal defences raised and marshalled by the forensic questioning of defence counsel may also take on a stronger mantle during the trial as compared to how they are perceived on paper.
The cut and thrust of criminal trials means cases which establish a prima facie case on paper often result in acquittals. The trial judge in the Jobstown trial felt there was a sufficient case to go to the jury and once that occurred, the DPP had fulfilled her role.
Thereafter, it was a matter for a jury to determine if false imprisonment lay on the facts.
Séamus Clarke is a practising barrister specialising in both criminal prosecution and defence