Obituaries

State’s first DPP strongly defended his independence

Eamonn Barnes obituary: Born: September 15th, 1934 – Died: November 1st, 2017

Eamonn Barnes: counted it his primary responsibility to ensure that unwarranted prosecutions were not brought

Sat Nov 18 2017 - 00:29

Eamonn Barnes, who has died, aged 83, was the State’s first director of public prosecutions, serving from 1975 until his retirement in 1999. His achievement establishing a high standard of independence and competence for decisions to prosecute was a major contribution to the Irish legal system

Prior to his appointment prosecutions for serious offences tried in the Circuit and Central Criminal court were a matter for the attorney general. In theory, the attorney general acted independently of government but his position holding office at the pleasure of the Taoiseach gave rise to doubts about that independence when prosecutions were politically sensitive, as in the Arms Trial of 1970, or where charges against the politically influential were in prospect.

In 1966, Barnes, the 32-year-old son of two national teachers in Ballymote Co Sligo, educated by the Franciscans at Multyfarnham, Co Westmeath, and at UCD’s history school, abandoned the uphill task of building a practice on his home circuit (where he had “devilled” with Hugh O’Neill) to work in the office of the attorney general. He advised on criminal prosecutions.

The appointment of Barnes eight years later by the National Coalition government to the new post of director of public prosecutions (DPP) was not without controversy. It was alleged in the Dáil by Desmond O’Malley that the first preference of the board of eminences charged to recommend suitable candidates had not been Barnes but a senior counsel with considerable prosecuting experience identified with Fianna Fáil.

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This set the stage for the fierce manner in which, from the start, Barnes asserted his independence, glorying that, unlike his counterpart in England, he was not accountable to the attorney general.

Politicians and others who approached him to stall prosecutions were choked off. He embarrassed the government that had appointed him when he insisted on prosecuting for illegal possession of arms in the State British soldiers who had wandered over the Border – probably unintentionally.

Substantial damages

Judges who criticised his decision to prosecute in cases before them were answered roundly. He sued several newspapers who published matter impugning his independence and recovered substantial damages from the Irish Press when they reported a critical statement by Fianna Fáil TD Michael Woods.

For reasons of security Barnes was given a car and driver. An eager, bouncy, affable, laughing man, he was glad to be driven around to embassy parties and other events at which he was ever ready to chat to all comers about his work. "No senior officer of the law," wrote Kevin Myers in an Irish Times profile, "could be as unpretentious".

Conscious of the hardship inflicted on an innocent person who is prosecuted even if acquitted, Barnes, whose instincts were always humane, never repressive, counted it his primary responsibility to ensure that unwarranted prosecutions were not brought. “It takes more courage” he claimed, “not to prosecute than to prosecute.”

He was loudly criticised in the 1980s when he dropped a second murder charge against Malcolm McArthur in exchange for a guilty plea to the other murder charged. In 1995 it was revealed that a large majority of child abuse cases referred to him were not prosecuted.

He refused ever to give reasons for not prosecuting, except to gardaí involved, arguing that if he gave reasons in one case he would have to give them in all, and the reason given could reflect unfairly on a person not charged or on a possible witness.

His stance, for all its impeccable logic, smacked of a lack of accountability. He did not help himself when he refused to appear before an Oireachtas committee in the same week as he agreed to be interviewed on a chat show. As a gesture to accountability, he undertook in 1993 to produce an annual report but only one appeared before his retirement in 1999.

Law of evidence

It was not that Barnes lacked enthusiasm to confront what he described as “the shocking upsurge in the frequency and savagery of crime” he had observed since the 1960s. He upbraided governments publicly for their failure to amend the law of evidence which enshrined a right of silence, so making proof of guilt difficult, and for leaving yawning gaps in the criminal law, especially that relating to dishonesty.

He operated under the handicap that State solicitors who conducted the prosecutions his office directed were responsible to the attorney general and not him. This led, he admitted later, to some appalling mistakes. His relations with his own staff and with the Bar were excellent; he ensured that barristers practising criminal law were well paid and prosecution briefs distributed more fairly than formerly.

The Francophile Barnes, who admired France’s more inquisitorial system of criminal justice, indulged his lifelong love of travel, and cut a figure outside Ireland as founding president in 1995 of the International Association of Prosecutors. It had a successful conference in Dublin, focusing on crimes against children and fraud in an electronic age.

He was acclaimed for providing the energy and vitality required to convert the association from a fragile fledgling into a healthy organisation, and for his refusal to compromise in any way that would have lessened its authority.

In retirement Barnes sat occasionally on the Refugee Appeals Board, but otherwise kept a low profile. However, in 2013 he expressed reservations about making the possible suicide of the mother a ground for abortion, suggesting that in such cases the attorney general should represent the foetus. In the 1980s he had expressed unease that the proposed Eighth Amendment would create uncertainty in the law.

‘Further than normal

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In 2015 he gave evidence in the case brought by journalist Ian Bailey arising out of efforts by local gardaí in Cork to have him prosecuted for the murder of Sophie Toscan du Plantier in 1996.

Barnes testified that he had resisted pressure to prosecute from gardaí that went “further than normal” because he believed the investigation was flawed and prejudiced.

Years before, when he was DPP, he had told a Garda conference that “as far as fairness, efficiency, expertise and incorruptibility were concerned, the Irish police force was the greatest in the world”.

Barnes was predeceased in 2008 by his wife Dolores (coincidentally also born on September 15th, 1934) and is survived by their two daughters Mary Jane and and Ruth, as well as their three sons Joe, Paul and John.

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