Prosecution service might benefit from transparency

Harry McGee says Director of Public Prosecutions James Hamilton may be trapped by policy of silence.

THERE is low profile. And then there is obscurity.

James Hamilton, as a figure recognisable to a larger public, lies somewhere in between the two.

Yet, there are few more powerful figures in Irish society than him. And, conversely, when it comes down to it, more public. The "public" part is even in his job title Director of Public Prosecutions, or, to use its more familiar shorthand, DPP.

But a "public" figure in the Phileas T Barnum sense, James Hamilton certainly is not. While everybody is readily familiar with what the DPP does, there are few outside legal, garda, media and government circles who could readily tell you who the DPP is.

The primary reason for this is that public statements by the DPP are dodo-esque rarities. Indeed, only once in the 30 years of the office has the DPP issued a statement pertaining to a specific case. By contrast, in America, public prosecutors are intensely public figures, as accessible to the media and airwaves as the politicians many of them often become (Rudy Giuliani is one such person who made that transition).

The reasons for that relate to Ireland's more traditional common law system. The independence of the DPP was expressly stipulated in the 1974 Act and though the act provides that the DPP shall consult together from time to time, it imposes no restrictions on the independence of the DPP nor make him accountable to the AG. The decision of the DPP not to institute proceedings is not reviewable.

When the office of the DPP was established in 1974, it continued the long-standing practice of giving no reasons for its decisions to proceed with, or not to institute, proceedings.

This has evoked huge controversy in a number of high-profile cases over the years. Most of the criticisms has arisen when the DPP has decided not to proceed with a case.

The first DPP, Eamonn Barnes, departed from this policy on only a few occasions during his 25-year tenure.

Soon after Hamilton succeeded him in 1999, he signalled that his approach to that steadfast policy might be different, when the report he prepared on the Nora Wall case for then Attorney General Michael McDowell was published. He set out, in a comprehensive manner, the organisational errors that led to a witness being called in the original case, despite the specific instruction of a solicitor in the DPP's office that she not be called. However, he confined his report to procedural matters but avoided making any reference to the substantial matter, ie why the decision had been taken by his office not to call the witness. "In principle it would be wrong to give such reasons," he said.

In the wake of Judge Carroll Moran's direct criticisms of the DPP's office in his judgment in the Brian Curtin child pornography case, the DPP issued a short statement that essentially noted the decision. But, given the precedence of the Wall case, there is a possibility that the report being prepared for Attorney General Rory Brady will be made public. But the distinction made by the DPP between process and substance in the Wall report may mean that his office may say that it was aware of the procedural flaw in the warrant as far back as December 2002 (as stated by defence lawyer Patrick McEntee SC in the Curtin trial). But will it allow it to say why it proceeded with the prosecution notwithstanding the emergence of a flaw, about which Judge Moran said the law was "crystal clear"? And in a sense, some legal sources have observed the DPP is trapped by the policy of silence. When Judge Moran said that many would find the "not guilty" verdict as highly unsatisfactory, he was referring to a wrong perception that might go abroad that the establishment was essentially looking after its own.

At least, the judge was able to express in a soundly-elucidated judgment the reasons behind his direction. However, if the DPP's office had not proceeded with the case, it would have been constrained by its policy of not giving reasons, a situation that would surely have led to damaging controversy.

The case that aroused most contention was that of Malcolm MacArthur of GUBU infamy, who was convicted for the murder of Nurse Bridie Gargan in 1982. He was also charged with the murder of a farmer, Donal Dunne. However, the DPP entered a nolle prosequi, a decision that was highly controversial. Amid what he described as "public clamour," Barnes said there was a "coercive reason" for not giving reasons. "If reasons are given in one or more cases, they must be given in all. Otherwise, wrong conclusions will be inevitably drawn in relation to those cases where the reasons are refused, resulting in unjust implications regarding the guilt of the suspect or former accused, or in suspicions or malpractice or both.

"If on the other hand, reasons are given in all cases and those reasons are more than bland generalities, the unjust consequences are even more obvious and likely." However, we live in a society where public accountability is increasingly becoming the norm. The reluctance to give reasons has also applied to the general as well as to the specific. For example, the DPP has a particular power under the Offences against the State Act to direct that cases be heard before the non-jury Special Criminal Court (SCC). Some high-profile cases not related to paramilitary offences have been heard before the SCC and civil liberties campaigners, in particular, have been critical of the DPP's decision not to state why such cases have been transferred. In recent times, however, the DPP has given detailed reasons why what seemed to be a disproportionately low number of rape and sexual assault cases have proceeded to trial. And in January this year, the DPP issued a statement saying that the preponderance of complaints against gardaí did not result in prosecutions because the investigations were not completed within the required time.

James Hamilton, 55, was formerly the highest-ranking permanent official in the AG's office and is widely respected for his intelligence, independence of mind, and toughness. He now heads a greatly-enlarged office, with 170 staff, that handled 7,569 involving over 10,000 individuals in 2002. However, some believe the prosecution service could take more of a lead from the Commonwealth DPP's office in Australia, where openness and transparency is the norm.

Professor Dermot Walsh, speaking to this reporter in the past, argued for a more open regime.

"It's a huge power to put in the hands of one individual. He does not have to give reasons for this important subjective decision he makes. The whole movement in society is towards giving reasons when the rights of persons are affected. There is not more important decision taken than the one to prosecute or not to prosecute a person."