Criminal law is precise and firmly favours the accused

Controversies regarding prosecutions, or failures to prosecute, are common and yesterday's paper reported two. The first concerned the question of whether the man who allegedly leaked official documents from the Department of Foreign Affairs to newspapers should be prosecuted under the Official Secrets Act, 1963 - a charge which although it would be brought by the DPP, unusually also requires the Attorney General's consent.

The other matter was the continuing story of whether proceedings should be brought against those responsible for the Hepatitis C scandal. Deputy Derek McDowell has suggested that, since no prosecution is being taken by the DPP, the National Authority of Occupational Safety and Health should use its authority, under the Safety and Health at Work legislation, to bring a prosecution for the specialised offences created by this legislation.

As a very broad observation, one can say that such controversies are likely to arise in this area more frequently, because our criminal law is very precise and is banked very strongly in favour of the accused. And even if an act or omission is extremely serious or wicked, it may, if it is novel and unforeseen, not fit snugly into any of the available legal berths.

If an attempt is made to force it, then a defence counsel's first and quite possibly successful ploy would be to plead to the jury: "These entire proceedings consist of a sinister stretching of the law to make a case against my client which is driven by a political campaign, fuelled by an irresponsible media."

A person who is usually in the eye of the storm, having to reconcile - as in the present case - the justifiable anger of the Positive Action Group with conventional legal forms (which have their own value), is the DPP.

One case, in which the DPP was criticised unjustifiably, in 1983, concerned his decision not to press ahead with the prosecution of Malcolm McArthur for one of the murders of which he was accused, because he had pleaded guilty to another murder. This culminated in a petition, reportedly signed by nearly 100,000 people, urging the DPP to prosecute.

Another area which has attracted attention is the low rate of prosecutions in child sex abuse cases.

The Office of the DPP was established by the Prosecution of Offences Act, 1974. The DPP, who enjoys the status of a civil servant of the State (and not the Government) is explicitly declared to be "independent in the performance of his functions". He is appointed by the Government, which may only appoint a person who has been nominated by a committee made up of such non-political persons as the Chief Justice and the President of the Incorporated Law Society.

The DPP's obligation to appear before Oireachtas committees, under the Committees of the Houses of the Oireachtas Act, 1997, is confined to answering questions on the general administration of his office. In summary he is an independent constitutional personage (though not actually mentioned in the Bunreacht) who is not to be instructed or pressurised by the Minister for Health, or anyone else.

A point of interest in this context is the section of the 1974 Act - under which the so-called "Statutory Meeting" between the AG and the DPP is to be held.

The section provides that "the two shall consult together from time to time in relation to matters pertaining to the functions of the director".

The words are deliberately a little vague. The word "consult" makes it clear that no-one is going to instruct anyone at the meeting.

All this is rather frustrating for a group with a legitimate interest, such as the Positive Action Group. It fits in, however, with the notion underpinning the office of the DPP.

For there are many significant functions, apart from the DPP - one thinks of the judiciary, the church or schools - in respect of which it was, in the past, considered appropriate to vest the function in a well-qualified office and trust the office holder to exercise his powers, without public discussion or questioning.

The crux of the matter is that, with the ending of the age of deference, we have gone over to a different model, that of "openness and accountability".

In the wake of the McArthur episode mentioned earlier, the DPP published a statement explaining why he did not give reasons for his decisions, which included the following: "The reason for non-prosecution often has little or no relevance to the issue of guilt or innocence . . . It may be the sudden death or departure abroad of an essential witness.

"To announce that such a factor was the sole reason for non-prosecution would amount to conviction without trial . . . in other cases the publication of the particular reasons for non-prosecution could cause unnecessary pain and damage to persons other than the suspect, as where certain types of aberrations become apparent in an intended witness . . . If some method can be devised whereby the Director could, without doing injustice, inform the public for the reasons for his decisions, he will very willingly put it into operation."

In his book on the AG, and in his book on the AG and DPP, Prof Casey has suggested three ways in which the DPP could be made more accountable.

The first would be an obligation to furnish an annual report on the activities of his office. Secondly, he could be required to state the general principles which govern the exercise of his prosecutorial discretion.

Finally, an Oireachtas committee could be established to consider and, inevitably, politely query his annual reports.

However, it might be that the last of these suggestions, and possibly the other two, might initiate a course of development leading to the exploration of individual cases, which the DPP, reasonably enough, wishes to avoid. Either way, this is a difficult area, which is likely to be thrust into public prominence and controversy, increasingly, in the future.

David Gwynn Morgan is Professor of Law at UCC.