Criminal procedures are too slow and there is a need for more capacity in the system, according to the retiring Director of Public Prosecutions, writes CAROL COULTER,Legal Affairs Editor
REFERRING TO the prosecution of offences arising out of the banking scandals, James Hamilton, who retired yesterday from the position after 12 years, told The Irish Times that it was only with the recent enactment of legislation compelling people to give evidence that real progress was now being made.
He also pointed out that, according to the OECD, Ireland spends less on its prosecution service per head of the population than any other European country, and has fewer judges per head than any other European country.
“A lot of people were not co-operating with investigations,” he said, “including financial institutions who allegedly had been defrauded. I don’t know why they were refusing to co-operate.” Asked what the reason might be, he refused to speculate, but added: “The new law is very significant and has remedied that. They are co-operating now.” He said good-quality evidence was being produced in these cases.
However, there is an ongoing problem with procedure in criminal trials, he said, despite a report on the matter by Mr Justice Fennelly almost a decade ago. That recommended, among other things, pre-trial procedures which would deal separately with legal arguments before the trial opened with a jury.
This would avoid a situation which frequently arises, where a jury has to wait around for what can be days while legal argument takes place in their absence.
“Nothing was done about the report. I don’t know why. It would probably need legislation,” he said.
Mr Hamilton also thinks we need a discussion about juries in lengthy, complex trials with a lot of technical detail, such as those that might arise from the banking collapse. Such trials could go on for up to a year.
“There is a much higher risk of losing a juror through illness or death if a trial goes on so long. And where would you find people able to give up a year of their lives?” There might be a need for specialist jurors, or for lay judges sitting with professional judges, as exist in many of the civil law countries in Europe. But that, he acknowledges, would require a constitutional amendment. He stressed that these matters needed to be discussed, rather than waiting for the problems to arise.
Another area that has been controversial during his tenure has been the relatively low rate of prosecution for sexual offences, though this is an international phenomenon. This was the subject of a section of his annual report, published last week, which showed that in over 60 per cent of cases alcohol impaired the recollection of either the complainant or alleged accused.
“It is common that a person is confused about what happened. That is not a good situation to contradict a defence of consent,” he said.
One of the innovations he introduced was the giving of reasons for decisions not to prosecute in cases involving death, and that will be extended to sexual offences, But the office has to decide on what level of detail to give – should it, for example, include detailing why the evidence of the complainant was not credible? Asked to list what he sees as his achievements while in office, he refers to a change in the law to allow the DPP appeal against an acquittal on a point of law (to clarify the law, not overturn the acquittal); integrating the prosecuting solicitor service into the DPP’s office (it was previously part of the Chief State Solicitor’s Office) and the fact that the whole service is about to be brought together in a single building in Parkgate Street; and progress on the giving of reasons project.
His tenure has also seen the opening up of the office to the public in a number of ways, including the publication of written guidelines, the holding of an annual conference open to the press as well as practitioners and the activation of a website.
He considers there has been improvement in the way in which the DPP’s office interacts with victims, though he acknowledges that more could be done. In particular, many victims of crime do not know that they can ask for a pre-trial consultation with the prosecuting solicitor, and if they think a sentence is too lenient they can write to the DPP and ask for it to be appealed.
While he has now left the office, he has not left the prosecutor’s world, as he has two years to run as president of the International Association of Prosecutors, and hopes to play a much bigger role there now that he has the time. He is also on the Council of the Europe’s Commission for Democracy through Law, and intends to write papers for it, which he has not been able to do until now. He will not, he assured The Irish Times, be spending any time playing golf.