AN EXPERT in tribunal law has warned the victims of hepatitis C contamination by the Blood Transfusion Service Board not to expect too much from the referral of the report to the Director of Public Prosecutions.
"Expecting a report like this to be the basis for a criminal prosecution is like looking at a fish and expecting it to fly. It might, but for a very short distance," he said.
The report was highly critical of several BTSB employees. Dr Jack O'Riordan, it said, bore the major responsibility for the infection of anti-D in 1976-77.
Mrs Cecily Cunningham, the BTSB's principal biochemist, Dr Terry Walsh, a medical officer at the time of the infection, and Dr James Kirrane, a part time consultant with the BTSB, were also censured.
By referring the report to the DPP, the Government has indicated its opinion that there was possible criminal wrongdoing. It is now up to the DPP to examine the report to see if it contains admissible evidence that could give rise to a viable criminal prosecution. The words "admissible" and "viable" are important qualifiers.
After examining the report, the DPP can decide that there is no admissible evidence, and take no further action. He can decide there is, and direct that charges be brought. Or he can decide that there is such evidence, but more is needed, and request the help of the Garda Commissioner in getting it. The DPP has no powers to investigate.
The charges that could be brought are of manslaughter (as Mrs Brigid McCole died) or assault. This requires proving a degree of recklessness on behalf of those involved that amounted to criminal intent.
The report itself is not a file of an investigation. Indeed, in some ways it is the very opposite. Under Section Five of the Tribunal of Inquiry (Evidence) (Amendment) Act, 1979, any statement or admission by a person before a tribunal of inquiry shall not be admissible as evidence against that person in any criminal proceedings. Therefore, even the most damning admission of liability by any individual cannot be used against them.
For example, there were prosecutions arising from the Goodman affair, when employees in the Rathkeale plant were prosecuted for fraud, but not on the basis of evidence given in the beef tribunal. The gardai gathered evidence independently.
However, the evidence of one person could be used against another in a criminal prosecution. Separate evidence will then have to be gathered to further the criminal prosecution. If the gardai reinterview everyone involved, individuals will have to be cautioned, and have the right not to answer any incriminating questions. "It's a very substantial handicap," said the expert.
Further, any criminal prosecution will have to prove criminal liability beyond reasonable doubt. This would require proving a level of knowledge at the time that implied recklessness to the extent of criminal intent.
There is no history of prosecuting a corporate body for wrongdoing (other than for things like violation of planning permission) in this State. However, it does exist in Britain, where the owners of the Herald of Free Enterprise, which sank at Zeebrugge in 1987 and, later, of the Marchioness, which sank in the Thames, were charged. In the former case the prosecution foundered on the difficulty of showing a sufficient degree of recklessness to constitute criminal intent. The latter case was also unsuccessful.
Nonetheless, the absence of precedent here is not a reason why the BTSB as a corporate body could not be prosecuted. But it could only be prosecuted for a crime which carried a penalty it could pay. The BTSB could not be imprisoned, for example, but it could pay a fine. One penalty for manslaughter is a fine.
Victims could also attempt prosecutions themselves in the District Courts, but they would face the same difficulties with regard to evidence as the DPP.
If the chances of a successful criminal prosecution seem slight, the prospects for successful civil actions are considerably brighter.
Section Five of the Act gives no protection against civil actions to individuals who give evidence. Also, in a civil action the burden of proof is considerably lighter. Liability must be proved "on the balance of probabilities", not "beyond reasonable doubt".
Therefore the evidence given by all the individuals to the tribunal can be used as evidence of admissions of liability in any civil action which any of the victims of contamination might take. Those involved could either be subpoenaed to give evidence, or the evidence which they already gave to the tribunal could be produced. This could be through the stenographer in the tribunal being called to give evidence of what he or she had taken down. It would then be up to the defendant in the civil action to contest that evidence.