EU laws may force DPP to explain decisions

Plans to provide victims of sexual crime with the reason why their cases are not being prosecuted are in doubt because of a lack of resources in the State prosecutor’s office.

However, EU laws currently being negotiated may force the DPP to provide reasons to victims in most criminal cases, a weekend conference was told.

The National Prosecutors’ Conference also heard that defence lawyers were increasingly seeking access to all information of a victim held by the HSE — such as therapy notes — with the possible intention of “intimidating” complainants.

The HSE’s legal director said these requests, which are becoming commonplace, can have the impact of “re-victimising the victim”.

In the opening address at the conference, Claire Loftus, the DPP, said her office currently gave decisions for not prosecuting in certain cases of fatalities, including murder.

Ms Loftus said since this policy was introduced three-and-a-half years ago there had been only 30 requests from victims for reasons, a figure she described as “very low”.

Ms Loftus — the first female DPP — said her office had been considering expanding the cases where it gave reasons to include sexual offences.

“My predecessor had highlighted that the process of giving reasons has already proved to be very resource intensive and this will be a significant factor in any expansion of this work.”

However, developments at EU level may impact on this, she said, adding that a new directive being negotiated would give minimum rights to victims of crime.

“While it is not finalised at this stage it is important to point out that among the rights proposed to be granted to victims is the right to receive reasons for the decision of the prosecution not to prosecute in most cases, subject to certain fairly limited decisions,” she said.

“It is important to be aware of the context in which we may be expected to operate some time in the future.”

The head of the DPP prosecution policy unit, Kate Mulkerrins, said they were working on establishing an agreement with the HSE regarding requests from defence teams for disclosure of information on people who were complainants in a criminal prosecution.

She said while certain information must be disclosed, the situation regarding therapy and counselling notes was “significantly more challenging”.

She said a former DPP had argued that such sensitive information should be privileged.

Eunice O’Raw, director of legal services at the HSE, said requests for disclosure by the accused of all HSE information, or “everything in the kitchen sink”, was “becoming commonplace”.

She said this practice was sometimes possibly being used not to advance the defence but to “intimidate” victims. She said there was great concern over this, with some professionals saying it “re-victimises” the victim.