If the decision seems strange, then the DPP should explain himself

WAYNE O’DONOGHUE has paid his debt to society and should be allowed the privacy to get on with the rest of his life without publicly having to relive his tragic mistakes.

Maybe the prosecution should answer some questions in relation to the way the case was conducted. Within hours of Wayne O’Donoghue’s release from jail, the State seemed to behave inexplicably in another case involving the death of teenager Kevin Walsh in a traffic accident.

There may well be an understandable explanation as to why charges of dangerous driving causing death were dropped against Eddie Halvey, but that will only be understandable if it is explained.

In the O’Donoghue case, unprovable allegations were made following his conviction, as the judge was about to pronounce sentence. In a strictly legal sense what Majella Holohan did with her impact statement was wrong, though understandable.

She had lost her son, and there were questions that were not being answered. She availed of the opportunity to ask those questions in a forum that essentially provided the media with a licence to speculate under the cover of the privilege accorded to matters raised in open court.

In the case of Judge Brian Curtin, on the other hand, the process was reversed. The unprovable allegations were made at the start of his trial. Important questions that should have been answered were obscured by one of the worst courtroom farces ever witnessed in this country.

The interests of justice demand that the DPP provide an explanation for decisions in certain circumstances, whether it is in relation to dropping a prosecution or pursuing one in an extraordinary situation, as in the case of Judge Curtin.

The prosecution claimed in open court it would prove that Curtin had child pornography on his computer, even though it must have known that it did not have the legal evidence to substantiate the allegations because his computer had been seized without a proper search warrant.

What happened in court amounted to a massive publicity stunt. It was basically conviction by publicity and mob manipulation — not due process.

“The prosecution in bringing this case to trial must have known, or at least ought to have known, that on any reasonable interpretation of the issues, any judge in any court would have excluded the relevant evidence,” Judge Carroll Moran ruled at the time. “This had to be so, given the untenable and nonsensical submission made on behalf of the prosecution.”

Why did the DPP bring the case in the circumstances? If the State had not prosecuted, other questions would have demanded answers, such as why Brian Curtin was appointed to the bench three months after the gardaí had been informed by the FBI that his credit card had been used to purchase paedophile pornography from a Texas website.

Det Insp Tom Dixon told the court that US police authorities and Interpol had informed the gardaí that Curtin’s name, address and credit card details had come up as part of an international investigation into child pornography. This followed the seizure in Texas of the database of the porn provider, Landslide Productions, on September 8, 1999.

The police seized details of some 300,000 transactions involving 100,000 people from more than 60 countries. Some 35,000 of those people were in the US, but only 200 of them were ever even charged. That amounted to 0.57%.

The FBI apparently thought its evidence was so weak that it did not even attempt to prosecute anyone in more than 99% of the cases.

We should not tolerate the judicial travesty that occurred here without insisting on an explanation from the DPP. If Brian Curtin had not been prosecuted, an investigation would have been necessary.

Questions about his appointment would undoubtedly have been the focus of public attention then, but by staging the courtroom farce, the State deflected attention from those responsible for the original appointment and the foul-up in relation to the search warrant.

Was the Government trying to hide something? The State papers recently released threw some interesting light on the office of the DPP, which was set up to ensure an independent prosecutor by the Fine Gael-Labour coalition in the 1970s. In the final days of that coalition there were serious questions about garda abuse and the existence of the so-called Heavy Gang.

After Tiede Herrema, the Dutch industrialist, was kidnapped in October 1975, the gardaí arrested a suspected member of the kidnap gang, but he refused to talk to his Special Branch interrogators. He was therefore transferred to a Dublin prison.

One minister in that coalition government, Conor Cruise O’Brien, noted in his memoirs: “On the way the car stopped. The Special Branch escort started asking the man questions. When at first he refused to answer, they beat the shit out of him. Then he told them where Herrema was.”

Was such conduct justifiable? The Cruiser apparently thought so. “I refrained from telling this story to Garret (FitzGerald) or Justin (Keating) because I thought it would worry them,” he explained. “It didn’t worry me.” Heavy gang tactics did worry many people, however, and this undoubtedly contributed to the defeat of that government in 1977.

When Jack Lynch subsequently took power, his government undertook to look into the allegations of garda brutality, following a critical report from Amnesty International. But like so many of that government’s other promises, this was just a cosmetic exercise. The government had no intention of looking too deeply.

THE DPP office had been set up since Fianna Fáil was in government last, and new Justice Minister Gerry Collins stated publicly that its independence was a safeguard against such garda abuse.

Colm Condon, who had served as attorney-general in the governments of Seán Lemass and Jack Lynch from 1965 to 1973, was clearly taken aback.

“I am not concerned with the report of Amnesty in relation to this, but rather with actual experiences by a number of lawyers in the courts of allegations of ill-treatment some of which are certainly, so far as one can judge, well-founded,” he wrote to Lynch on October 15, 1977.

He had no faith whatever in the DPP of the time to deal with garda abuse.

The DPP had not followed up on cases in which his office entered a nolle prosequi after the ill-treatment of suspects had been established. “He has taken no steps whatsoever in relation to the investigation or prosecution of the persons who committed the acts of ill-treatment,” Mr Condon continued.

The DPP may be independent, but most of the parties have been playing politics with the office for too long. It is time the DPP demonstrated real independence by explaining the logic for actions, especially in relation to cases where his conduct would otherwise seem inexplicable. In a republic he should ultimately be answerable to the public.