The trial commenced on 2 June 1999 and concluded on 10 June 1999.
When Senior Counsel called P.P. as a witness for the prosecution the Office of the DPP was unaware of this development. However, as Senior Counsel had advised in his supplementary advice on proofs that she should be called, it was reasonable for him to assume that his advice had been seen by any appropriate officers and that he was entitled to act on foot of it.
He was not reminded of the direction by Junior Counsel or the Office of the Chief State Solicitor.
The Gardai have indicated that they assumed Senior Counsel had been in contact with the Office of the DPP in relation to the decision to call P.P. as a witness. Accordingly, they did not remind him of the direction dated 24 April 1997. This appears to have been a reasonable assumption for the Gardai to have made although it was, of course, not correct.
Junior Counsel has indicated that he received the brief shortly before trial, the previous Junior Counsel having taken silk. He states that he considered the statements in the Book of Evidence, those contained in the notice of additional evidence and the exhibits. He states that he did not notice the direction dated 24 April 1997.
The persons employed in the Office of the Chief State Solicitor who attended Counsel in the Central Criminal Court did not include the solicitor who had originally dealt with the preparation of the Book of Evidence in the District Court. This is normal practice as the Book of Evidence is prepared in the District Court Section of the Chief State Solicitor's Office, an officer from which attends the preliminary examination in the District Court, whereas counsel is instructed and attended at the trial by a solicitor or legal executive from the Criminal Trials Section. The persons who attended counsel did not notice the direction dated 24 April 1997 and accordingly did not bring it to the attention of Counsel.
As a rule the Office of the Director of Public Prosecutions leaves the implementation of its directions to the State Solicitor's office and Counsel nominated in the case.
The Professional Officer who issued the direction to prosecute on the 24 April 1997 was absent from the Office between the 4 June 1999 and 16 June 1999. He was not aware that P.P. had been called as a witness in contravention of the direction. During the trial, however, no direction was sought from the Director's Office. Had such a direction been sought another officer would have been assigned to deal with the matter. Had the Professional Officer who dealt with the matter been present it would not necessarily have made any difference unless his direction was sought. Any individual officer could have dealt with up to 1,000 cases which would be current and could not necessarily be expected to recognise a particular witness from a newspaper or broadcast report of a trial.
On Friday 23 July 1999 at 1.00 p.m. the Professional Officer heard on the news that Nora Wall and Paul McCabe had been sentenced to imprisonment following conviction.
The news also reported that the defence were alleging a miscarriage of justice on the basis of non-disclosure of relevant information pertaining to the injured party and to another witness who had given evidence in the case.
The Professional Officer called for the file and shortly thereafter learned the identity of the particular witness. He noted his direction dated 24 April 1997 that it was not intended to call the witness.
On 26 July 1999 the then Director of Public Prosecutions having discussed the case with the Professional Officer and Senior Counsel decided that the matter of Nora Wall and Paul McCabe should be immediately listed before the Court of Criminal Appeal.
On 27 July 1999 Senior Counsel on behalf of the Director made application to the Court of Criminal Appeal in the following terms:
"I have been instructed by the DPP to consent to the Court of Criminal Appeal, if it is so disposed, granting leave to appeal, allowing the appeal and directing a retrial in respect of Nora Wall and Paul McCabe. The principal reason for doing so is that one witness was called through inadvertence despite a decision by the DPP that that witness should not be called. The defence was not made aware, again through inadvertence, of that decision and of the reason for it. Two additional though less central factors were also taken into account in adopting this position. The first is the information that the prosecutrix had made but not pursued an allegation of being raped in England. The prosecution considers that whatever the significance of this information, it could not properly argue that it was not relevant. The prosecution was not aware of this information until it was mentioned in court by Mr Hartnett. Secondly, there is another factor relating to the prosecutrix which might also be considered relevant and of which the defence was not made aware either. The defence has now been made aware of this second factor."
On foot of the application, the convictions recorded against Nora Wall and Paul McCabe were quashed, both defendants were admitted to bail and the court indicated that the issue of whether or not there should be a re-trial would be dealt with at a later date.
The matter stands listed for mention on 1 November 1999.
Conclusions
1. The decision to call P.P. arose initially because Counsel failed to recall the direction from the DPP's Office not to call this witness following which he directed that she should in fact be called. In turn, there was a failure on the part of the other lawyers involved in the case to notice the contradiction between the direction from the DPP's Office and Counsel's advice on proofs and to take corrective action at that point. In addition the initial instruction to the Office of the Chief State Solicitor to notify the accused of the intention not to call P.P. was not acted upon.
2. Human error occurs inevitably in any system and in any organisation. What is important is to take reasonable measures to identify such errors when they occur and to avoid or at least minimise any undesirable consequences which flow from them.
3. So far as is known, this is the only occasion in the 25 years of existence of the DPP's Office on which such an error led to a witness being wrongly called. This may be relevant to any judgment of whether it was reasonable to anticipate such an event being likely to occur.
4. Nevertheless, with the benefit of the experience gained as a result of this incident, it is possible to identify a number of improvements in procedures which can and will be adopted:
(1) The instructing solicitor should be familiar with and should draw Counsel's attention to any directions issued by the Director or the Director's Office with particular reference to directions as to persons who should not be called as prosecution witnesses, on every occasion when counsel is briefed or asked to advise proofs.
(2) In the event that Counsel considers any directions given by the Director or the Director's Office to deserve reconsideration Counsel should raise the matter with the Professional Officer dealing with the case.
(3) Counsel should normally be expected to furnish advice on proofs within six weeks of being briefed. The instructing solicitor should furnish a copy of Counsel's advice on proofs to the Professional Officer within one week of receiving that advice and should draw attention to any difficulty which may arise in carrying out any directions which have been given.
(4) Professional officers of the DPP should be made aware in advance of the trial dates in cases in which they have given directions. If they are absent from the Office on those dates, another officer will be assigned to deal with any matters which may arise.
(5) The arrangement whereby one solicitor prepares the Book of Evidence and a different solicitor attends court at the trial is not entirely satisfactory. However, given that large numbers of cases may be listed in court on the same day, it would be logistically difficult and would require vastly increased resources to enable each case to be dealt with in court by the solicitor who prepared the Book of Evidence. However, the system should be reviewed by the Chief State Solicitor's Office (or by the new Solicitor to the DPP if the Nally Report is accepted) to see whether this aspect of the system can be improved in any respect.
5. The problems which have been identified arise principally from weaknesses in the systems of communication between the three sets of lawyers involved in each case, that is to say, the DPP's Professional Officer who gives directions as to prosecutions on the Director's behalf, Counsel who conducts the case in Court, and the instructing solicitor who is responsible for ensuring that the directions of the DPP's Office and Counsel are carried out, that Counsel is properly instructed and that the case is ready to proceed in Court. The steps which are now being taken will, if followed, reduce the likelihood of a similar error arising again. In addition, if the recommendations of the Nally Report on the Public Prosecution System are implemented the establishment of a new solicitor to the Director of Public Prosecutions accountable to the Director, and the transfer of responsibility for the local State Solicitor service to the Director, will improve the communications and the arrangements for responsibility and accountability as between the DPP and his Professional Officers and the solicitors who handle the cases.
6. Finally, in my opinion the failures on the part of the Chief State Solicitor's Office which contributed to this incident must be attributed in part to the shortfall in resources in that Office and overheavy workloads carried by its officers. These problems have worsened in the recent past and require to be addressed as a matter of urgency.
James Hamilton, Director of Public Prosecutions