FOLLOWING MONTHS of consultation, Director of Public Prosecutions James Hamilton has decided to give reasons for not prosecuting, or not proceeding with a prosecution, in cases where a crime has been committed resulting in a death. This policy change will be monitored and further consultation is promised before its expected extension to cases involving sexual assault.
The move represents a profound shift in practice which, until recently, was said to be impossible because setting out reasons for not prosecuting a specific individual could, if his or her identity was known, amount to convicting him in the eyes of the public without giving him an opportunity to fight the accusation in court.
Both the Constitution and the European Convention on Human Rights protect the reputation of the individual and the right of a suspect to be presumed innocent until proven guilty. However, the latter court recently ruled that in cases where the actions of the State resulted in a death and no prosecution ensued, the victim's family was entitled to an explanation.
This ruling, under the article protecting the right to life, coincided with a shift within other common law jurisdictions towards giving reasons for not prosecuting where doing so did not impinge on the rights of others. Their procedures have been examined by the DPP in coming to a decision which will mean that family members, or professionals caring for the deceased, can seek reasons - in writing - for a decision not to prosecute. Such reasons may be withheld if it is deemed their release could lead to an injustice to a suspect, or to a witness, or runs counter to public policy. This could include cases where the accused suffered from a terminal illness or where a Garda investigation might be compromised.
In a submission as part of the consultation process, the Law Society expressed the fear that this shift in policy could lead to prosecutions being proceeded with where otherwise they might not. It also expressed concern that the principle of the presumption of innocence might be eroded. These misgivings were countered by the strongly-expressed views of victims' organisations, families of victims, members of the public, and others, who point out that failing to give reasons for not prosecuting where the victim or victim's family feels there is a basis for doing so can cause great distress and can create the impressions that the decisions of the DPP are arbitrary. The DPP had to strike a balance between these competing concerns. Time will tell if he has got it right.