DPP prepared to break with precedent

The unprecedented publication yesterday of the Director of Public Prosecutions' account of what went wrong in the case of Nora…

The unprecedented publication yesterday of the Director of Public Prosecutions' account of what went wrong in the case of Nora Wall and Paul McCabe may signal that the new director, Mr Jim Hamilton, will take a more relaxed approach to explaining the actions of his office than his predecessor, Mr Eamonn Barnes.

Never before in the 25-year history of the office of the DPP has it consented to the publication of an explanation of its actions in a case. During his time in the post, Mr Barnes scrupulously upheld the principle that his office was not accountable to the Government, the Oireachtas or the public for decisions on whether to prosecute. While upholding this principle, Mr Barnes maintained virtual silence on all specific matters of controversy that arose in relation to the actions of his office.

However, it is understood that the new DPP does not believe total silence is necessary to maintain his independence in the exercise of his prosecutorial functions. Yesterday's lengthy report from him on the Wall case, for example, lets the public know how a serious mistake was made.

But it does not impinge on his independence in exercising his prosecutorial function. It does not, for example, explain why he has decided not to pursue a retrial of Nora Wall and Paul McCabe.

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However, it does go into detail on how the prosecution called a particular witness, despite the fact the DPP had directed this witness not be called. The report explains the series of omissions and errors which led to the calling of the witness. This culminated in the prosecution consenting to the conviction of the two being set aside on appeal, and ultimately the DPP's decision, announced yesterday, not to pursue a retrial.

A spokeswoman for the Attorney General's Office yesterday said that both the AG and the DPP wanted the facts to be publicised. "It was a matter of public concern relating to a malfunction in a prosecution. The Attorney asked for a report and the DPP thought it a legitimate request."

While it is unprecedented for the DPP to explain the events of a case in this way, it appears more surprising still that he chose to do so through the Attorney General. For an office that has been so anxious to emphasise its absolute independence from Government, it seems curious effectively to communicate to the public through the Government's legal adviser who sits at Cabinet.

However, the AG's spokeswoman said yesterday this method of releasing his report was chosen mainly for convenience, and it did not indicate any dilution of the DPP's independence from Government. She said the 1974 Act establishing the office of DPP allows for consultation between the AG and the DPP, and therefore allows the AG to ask the DPP to explain certain matters not relating to decisions on whether or not to prosecute in certain cases.

Yesterday's publication is another indication that the State's law officers may be cautiously relaxing their traditional attitude of remaining aloof and incommunicado, unresponsive to the public, politicians and indeed the press.

The previous Attorney General, Mr David Byrne, broke with precedent by appointing a special assistant among whose tasks was to provide an informal contact point with the press. Prior to this appointment, which has been retained by Mr Michael McDowell, it was difficult to get even basic factual information from the office.

While there are indications of a relaxation of the traditional silence from the office, this will not lead to any departure from the basic principle that led to that silence.

That principle - that reasons are never given for decisions on whether to prosecute - was defended by Mr Barnes when publishing his office's first annual report earlier this year: "If reasons are given in one or more cases, they must be given in all," he said. "To announce that (some) factor was the sole reason for non-prosecution would amount to conviction without trial in the public estimation."

While yesterday's report was unprecedented, the circumstances of the case were also unprecedented. Never before has an error led to a witness being wrongly called, and yesterday's report states that a number of new procedures will be adopted to attempt to ensure it does not happen again.

Legal observers believe the new DPP and the present Attorney General - and his predecessor Mr Byrne - have different attitudes to what information should come into the public domain than some who came before them.

Some observers believe Mr Hamilton will be willing to communicate other matters to the public.