Delay-cutting merits of pre-trial hearings outlined by DPP

Claire Loftus says pre-trial process would benefit juries, victims and witnesses

The wait for a criminal trail in the Dublin Circuit court is approximately one and a half years, a delay in part due to a number of exceptionally long trials.  Photograph: Dave Meehan

The wait for a criminal trail in the Dublin Circuit court is approximately one and a half years, a delay in part due to a number of exceptionally long trials. Photograph: Dave Meehan

 

The introduction of pre-trial hearings could significantly shorten the delay in criminal trials coming to court, the Director of Public Prosecutions (DPP), Claire Loftus, has said.

Such hearings would decide what evidence can and cannot be introduced in a trial, and would also help crystallise disputes over what material has to be disclosed during the trial, she said.

The wait for a criminal trail in the Dublin Circuit court is currently approximately 1½ years, a delay in part due to a number of exceptionally long trials, including the trials linked to matters to do with Anglo Irish Bank.

In those trials, juries were sworn in by the trial judge before legal arguments began, in the absence of the jury, over what evidence could be introduced in the trial, and what material had to be disclosed to the defence. These arguments persisted for weeks, in some instances.

“I’ve been saying since I was appointed that this was the most important thing, in my view, that would help the system work more efficiently,” Ms Loftus said, in an interview with the Bar Review. “I think in everybody’s interests, but particularly in victims’ interests, it would make an awful lot of sense.”

Legal argument

Ms Loftus was appointed in 2011. A criminal procedures Bill containing a pre-trial provision was published in 2015, and has been given priority by the Government.

She said a pre-trial process would be in aid of juries, but also victims and witnesses, who are often left waiting for days, or weeks, while legal argument goes on.

Vulnerable victims who have suffered trauma have often engaged with a number of services and it can be difficult, after a number of years, to ascertain the full extent of such engagement. “Those most vulnerable often have their lives extensively documented.”

In such cases, the DPP has onerous disclosure obligations and must show particular sensitivity when seeking informed consent for the release of the information.

Ms Loftus said that since the EU directive on victims had been transcribed into Irish law, there had been an increase in requests from victims in relation to information on decisions not to prosecute, and reviews of those decisions.

Decision to prosecute

Reasons for not prosecuting are now given in all cases other than a limited number of exceptions. Since 2015, the office has received approximately 650 requests for reviews of decisions not to prosecute. This is against a caseload of approximately 9,000 cases a year, of which decisions not to prosecute are taken in approximately 40 per cent of cases.

“It’s not a huge number, but it shows that there is an awareness out there,” Ms Loftus said.

She said her office takes the victim’s views into account but that view may not be determinative.

The first DPP, Eamonn Barnes, she said, used to talk about the double duty of the job, “that not only did you prosecute the people who should be prosecuted, but that you very definitely didn’t prosecute people where there wasn’t enough evidence, that you didn’t give in to perception or pressure”.

Getting decisions right, and prosecuting and not-prosecuting as justice required, was the best way of maintaining public confidence in the office, she said.

Her office can appeal a sentence it believes is unduly lenient. Over the past number of years , it has been seeking approximately 50 reviews a year of sentences it thought were unduly lenient.