The Director of Public Prosecutions could embark on an important policy change by the end of the year. He may give some reasons for decisions not to prosecute in some of the serious cases that come before him.
This is the implication of the document he put on the website of his office yesterday appealing for a public discussion on a difficult subject. A policy shift is likely to follow this consultation process which continues until March 10th.
The DPP would do well to proceed with the utmost caution. His discussion document outlines the reasons why he and his predecessor, Eamonn Barnes, refused to give reasons heretofore. Along with most prosecutorial offices in similar jurisdictions, it was deemed improper to give reasons for decisions not to prosecute without effectively condemning the suspected person in the court of public opinion without a trial. Both the Constitution and the European Convention on Human Rights protect the reputation of the individual, and the right of a suspect to be presumed innocent until proven guilty.
As the current DPP has said, giving reasons could also impinge on the reputation of witnesses, if such reasons included a view that a particular witness was unreliable. The suspect suffering from a terminal illness could have his or her entitlement to privacy impinged. A Garda investigation could also be compromised.
But not giving reasons why a prosecution does not occur, in a case where there appears to be an obvious suspect, often causes great distress to victims and their families. It can also make it appear that the decisions of the DPP, a public official, are arbitrary. This has led a number of other common law jurisdictions to move, cautiously, towards giving reasons without impinging on the rights of others.
These are some of the reasons why the DPP has launched this initiative at this time. He is bound by the European Convention on Human Rights, which ruled in 2003 that in the specific circumstances of a death caused by lethal force on the part of the State, if the prosecutorial arm of the State decides not to prosecute, reasons should be given to the family of the victim. Some modification would appear to be needed.
It will not be easy to reconcile the competing interests. Why would the DPP give reasons in one case and refuse them in another? How does the DPP avoid responding to the prurience of the public at a time of great controversy over a particular case? There are likely always to be cases where no reasons can be given. The court of law, rather than the court of public opinion, must be given precedence always. This is an interesting debate.