The move by the DPP to give reasons for decisions not to prosecute in fatal cases follows the practice in other jurisdictions, writes Carol Coulter, Legal Affairs Editor
IT IS now 25 years since the issue of the DPP giving reasons for not prosecuting became the subject of public debate. In 1983, then DPP Eamonn Barnes, was the subject of a campaign asking him to explain why a nolle prosequi had been entered in relation to the death of Donal Dunne, for whose death Malcolm McArthur, already convicted of the murder of Bridie Gargan, was thought responsible.
Mr Barnes issued a rare public statement, making a number of points on why he had a blanket policy of not giving reasons. These boiled down to the danger of subjecting a person to an attack on his or her good name without an opportunity to counter it in a court of law; or of causing distress to a witness or other third party involved in the case whose actions had given rise to the decision. His policy reflected that in the common law world at the time.
Since then much has changed, particularly at international level. The need for public bodies to be accountable has become widely accepted, and this has been underlined by the European Court of Human Rights, especially in relation to unlawful killing at the hands of a state agency.
This arose in a challenge to the decision of the Northern Ireland DPP not to prosecute anyone over the killing of an unarmed man, Pearse Jordan, by the security forces. In Northern Ireland, inquest juries were not allowed to bring in a verdict of unlawful killing, so the inquest left the family without answers. All this "cried out for an explanation" of the decision, according to the Strasbourg court, which found the lack of an explanation contravened Article 2 of the European Convention on Human Rights, protecting the right to life. This ruling was followed by changes in the policy of authorities in various common law jurisdictions, including Northern Ireland.
In January this year the present DPP, James Hamilton, launched a consultation process on the question of giving reasons for not proceeding with a prosecution. That was based on a discussion document, in which he outlined six issues: protection of the good name of suspects; protection of the good name of witnesses; the possibility that future developments in a case might be compromised; protection of police sources; whether privilege should attach to statements by the DPP on reasons for not prosecuting; and whether legal considerations arose over entry of a nolle prosequi after charges were laid.
The options outlined ranged from a limited change, bringing DPP practice into line with the ruling of the European Court of Human Rights, to an inclusive approach, where reasons for a decision would be given where possible, without compromising the interests of anyone.
Eighty-two written submissions were received from interested parties. Views ranged from favouring giving reasons to victims or their families in most cases to retaining the existing policy in order to avoid erosion of the presumption of innocence.
A conference was held which was addressed by a former leading figure in the Crown Prosecution Service in England and Wales, by Jim McHugh, chairman of the Commission for the Support of Victims of Crime, and by the DPP.
The outcome is the present decision - to begin by providing, where possible and only on request, a written explanation to next-of-kin of the victims of fatal offences if a decision is made not to prosecute, or to discontinue a prosecution, without causing an injustice for other persons.
It remains to be seen whether the giving of reasons can be so contained, or whether it will feed into media coverage of crime.