DPP apology - Explanations needed in certain cases

DIRECTOR of Public Prosecutions James Hamilton has broken unprecedented ground by apologising to the husband of a woman fatally injured in a crash in which the State failed to prosecute for alleged driving offences.

The landmark development in the Brannigan case assumes added significance as it is the first known instance where the DPP not only issued a personal apology but took pains to explain why no prosecution ensued.

The case was botched by a mix-up of dates which effectively ruled the matter out of time. The DPP made it clear last night that an apology should be made when mistakes occur and the prosecution becomes statute-barred.

In keeping with the separation of powers and the independence of the DPP, the DPP is not required to explain why the State does not institute proceedings in certain instances. Yet, the public increasingly feel they have a right to know. In certain cases it is hard to deny that reasons should be given publicly for decisions not to proceed with matters.

Take, for example, the DPP’s decision to grant property developer Tom Gilmartin immunity against prosecution at the Mahon Tribunal. Given the ramifications of that murky saga of bribery and corruption in Irish politics, people feel they have a right to know why the DPP acceded to the request of former tribunal chairman Mr Justice Feargus Flood that no prosecution be taken against Mr Gilmartin.

In an even more controversial decision, the DPP failed to prosecute anyone in relation to the death of Adrian Moynihan outside a Cork nightclub. Once again, no reason was given, driving the victim’s father, Andrew, to stage a hunger strike outside the Dáil.

Much to the consternation of the parents of four-year-old Elizabeth Heapes, run down during a bloody feud between rival factions of the Travelling community at Tallaght in Dublin, the DPP brought no charges against a teenage Traveller behind the wheel at the time.

In yet another inexplicable decision which gave rise to widespread public concern, the DPP opted not to prosecute Superintendent Kevin Lennon and Detective Garda Noel McMahon, two senior gardaí accused of orchestrating the planting of ammunition and hoax explosives in Co Donegal. They were also accused of lying to the Morris Tribunal into a culture of cover-ups, gross negligence and an appalling lack of management accountability in the gardaí.

Ultimately, the decision to prosecute or not, lies with the DPP and his authority is not subject to review. Considering the legal sensitivities of the office, its independence has rightly been protected by law since its establishment over 30 years ago.

Effectively, it is one of the most powerful positions in the criminal justice system and in Irish society. But in face of growing public criticism, there is increasing pressure to explain decisions to prosecute or not.

Amid the furore over the collapse of the case against Judge Brian Curtin, who was acquitted of charges relating to child pornography, the DPP has made a welcome decision to study how his counterparts in other countries communicate with the public.

It is refreshing that Mr Hamilton tends to be less aloof than his predecessors. As illustrated by the tone of his apology in the Brannigan case, there are instances where accountability, transparency and explanation are warranted as to why, or why not, a prosecution ensues.