OPINION:DPP's move to provide explanations of decision not to prosecute erodes the rights of all citizens, writes John Waters
THE MEDIA consensus that greeted the announcement that the DPP will provide the families of victims of fatal crimes or accidents with written explanations for decisions not to proceed with prosecutions is symptomatic of the difficulty we have in getting the media to treat with objectivity issues affecting a media interest. The response was, to say the least, uncritical. The idea that this measure has been successfully operating in other jurisdictions was widely used to play down what is a momentous and risky shift in the culture of Irish jurisprudence.
For this measure, as well as undermining the principle that a citizen is innocent until proven guilty, does a number of more radical things. For one, it gives recognition to what is in effect a new court, or rather a court that has not hitherto been formally acknowledged by the legal system: the court of public opinion, fuelled and overseen by media with a vested interest in creating speculation and rumour about a given case. The fact that a formal letter will be issued to relatives of deceased victims will establish a new layer in the process of justice, one which the media will have the same interest in reporting as a trial or an inquest. This will enable a citizen who has been released from the legal process to be tried and convicted by inference, innuendo and public prejudice.
The idea that the new measure will provide for an "explanation" to families is disingenuous. The point is that such information will refer to a particular individual, against whom the DPP has been unable to mount a case. In law, the position is unambiguous: such a person is utterly innocent. That is not merely the law but the very foundation of the law as it stands.
How, then, can the DPP have any function other than to say that there was no case to be made against the citizen concerned? For the DPP, in a particular case, to say that there was, for example, "insufficient proof" to prosecute an individual would be to turn the DPP into a court of law, capable of issuing an informal verdict, referrable to the court of public opinion for sentencing. This informal verdict will fall somewhere between innocent and guilty, but will often be indistinguishable from the latter. Rather than declaring a person innocent or guilty, it will whisper "not proven".
In recent times we have witnessed a blurring of the lines in media coverage of criminal cases. Where once media simply reported process and outcome, nowadays reporting is an organic element within the investigation and trial processes. In many recent cases, it has been clear that investigating officers were using journalists to put pressure on suspects, creating an impression in the public mind that guilt was already established. Thus, real-life cases were treated in public like episodes of Columbo, with the "hunch" of the investigators supplying the narrative drive. The introduction of the concept of a "self-confessed suspect" has enabled the systematic harassment of individuals well in advance of any prosecution. In these circumstance, a trial becomes, in the public mind, not a test of the evidence but a public spectacle in which the trench-coated detectives either get or do not get their man.
The DPP deciding to provide an "explanation" for a decision not to proceed to trial or to accept a certain plea falls in with this cultural shift. Though ostensibly driven by concern about victims and their families, the change is really the result of increasing media agitation. The new measure will serve to consolidate the public impression that the legal procedure is really just a rubber stamp on a process which seeks the denouement that began with the investigating officer's "hunch".
It will in certain cases imply that the failure to reach the "correct" conclusion was due to bureaucracy, or overly fussy procedures. It will create the impression of the accused having been brought to the penultimate ad-break in the process of establishing his guilt and then wriggling away. This is a radical shift in our view of justice and potentially affects every citizen who, accused of certain offences, can no longer anticipate a presumption of innocence.
There has been much talk in these debates about finding the correct balance between perpetrator and victim. But what is a perpetrator? Is an accused person a perpetrator? No. Is "the defendant" a perpetrator? No. Only when a verdict has been handed down and a conviction recorded do we arrive at the concept of "the perpetrator". Then, and only then, does the question of a balance of rights between perpetrator and victim arise. Up until this point, the accused person remains legally innocent.
And if he or she is not brought to this point, for whatever reason, he or she remains innocent - not technically innocent or unprovably guilty, but innocent, pure and simple. Until a conviction is obtained, no connection has been established between the accused person and the crime, so informing the family why a particular suspect was not proceeded against is as irrelevant as it is dangerous.