Vol. 450 No. 3
1 Ms O'Donnell asked the Taoiseach if he will consider introducing procedures whereby victims of crime can be notified when charges are not proceeded with by the Director of Public Prosecutions or when an injunction is taken by the accused to halt the prosecution; and if he will make a statement on the matter. [4318/95]
The Director of Public Prosecutions has no objection to the Garda Síochána, or any other body involved in the investigation of crime, such as a Government Department, notifying a complainant of the director's decision not to prosecute in the case. He has no objection to the complainant being similarly informed of any injunction granted by the courts to restrain him from proceeding with the prosecution.
Will the Taoiseach agree that the very least victims of serious crime can expect is that they will be notified in cases in which the Director of Public Prosecutions decides not to prosecute? Will he agree that victims of crime are owed, in decency and justice, an opportunity to question that decision? Should there not be a victims' appeals board to which they could appeal and has the Attorney General considered such a facility? In view of the fact——
The question should not be too long.
——that the Taoiseach said the Director of Public Prosecutions has no objection to notifying a victim of non-prosecution, is this done at present? My information is that victims——
I am sorry, Deputy, the questioning has gone on far too long.
—— have not been notified when their cases have not been prosecuted. Similarly, in terms of an injunction——
Surely that should be adequate, Deputy.
——victims have not been notified of the non-continuation of criminal charges.
Guidance is issued to members of the Garda Síochána to the effect that they should notify the victims of crime where a decision has been taken not to prosecute. All law enforcing authorities are very sympathetic to and concerned about the plight of victims of crime and recognise they suffer not only physical and financial loss but also major psychological trauma. Separate questions arise not simply with informing the victim of the decision, but also giving information on the reasons for a decision or entering into debate about it. While this may not present a problem in the majority of cases, if it were to become the general practice major difficulties might arise. I will give the Deputy an example.
A person may be suspected of a particular offence and the prosecution hinges on the availability of one particular witness. If that witness dies or leaves the country obviously the prosecution cannot proceed because they do not have the evidence — our law requires proof beyond reasonable doubt. If that fact was published as the reason for non-prosecution, the accused person would have been convicted at the bar of public opinion by virtue of the fact that everybody would have been told that the person would have been convicted — that would be the implication — if the witness had not died or left the jurisdiction.
In those circumstances an individual would have been convicted in public opinion without a trial. That is contrary to the underlying principles of our system of justice which is that one is innocent until proven guilty. For these reasons there are major considerations of public policy that preclude the entry to debate or the publication of reasons for not prosecuting in a particular case. If that was done on a general basis a whole range of problems and difficulties would arise on which I will elaborate if the Deputy wants more examples. This is a matter I have looked into on a number of occasions and I am of the firm view that there should be no change.
The example quoted by the Taoiseach is very much oriented in defence of the accused rather than in favour of the victim. Surely the opposite side of the argument is that the DPP, by making an unreviewable decision not to prosecute, could be said to be prejudging the issue, to be judge and jury, since the decision is unreviewable, even privately. Will the Taoiseach agree, that, as Deputy Gay Mitchell said many times as Justice spokesperson in Opposition, an independent office need not compromise the desirability or necessity for some degree of accountability and answerability in the office of the DPP in terms of the prosecution of criminal charges?
I profoundly disagree with the Deputy.
And Deputy Gay Mitchell.
Split the Taoiseach's Department.
The Deputy should restrain himself.
There is freedom of expression in a national parliament.
There is no need for nastiness.
This is a serious matter that is not being added to by the Deputy's comments.
There is disagreement in the Taoiseach's office.
Our system of justice works on the principle that one is innocent until proven guilty. One is entitled, unless proved by a court of justice to be guilty, to the integrity of one's reputation. To engage in a practice of publishing explanations of non-prosecution in particular cases would cast a slur on the reputation of an individual who had not been convicted of a crime. The fundamental principle of the common law system of justice is that one is innocent until proven guilty. There are different systems in other countries, but that is our system, it is the right system and we should preserve it. We should not dilute it simply to meet the sort of criticism that is inevitable.
I want to dissuade Members from the notion that we can debate this matter now by argument or otherwise. I will proceed shortly to another question.
Does the Taoiseach recall a parliamentary question I put to him some weeks ago, to which his reply was quite helpful, about the speed with which the Office of the Director of Public Prosecutions deals with cases? I gave as an example a case I referred as Minister for Transport five years ago in regard to Aer Lingus Holidays and I believe there are many other similar cases.
Has the Taoiseach had an opportunity to reflect on whether he can put a mechanism in place — perhaps a regular list of cases with the DPP — which allows the public to see the stage a case is at at the DPP's office so that it does not vanish forever with no further account of it? I know it is a difficult area and the Taoiseach gave an undertaking to look at it but has he had the opportunity to consider whether a mechanism could be put in place that permits the public to see the progress of cases or whether the DPP was pursuing them?
I have no problem with that suggestion as it is simply the publication of factual information on processing cases, in other words a factual progress report. I would have no policy concern about that as it is different from publishing reasons for particular cases being dealt with while others are not. The Director of Public Prosecutions is quite rightly independent in the exercise of his functions and all I can do is what I have done already, to draw to his attention the Deputy's suggestion. I will draw it to his attention again and he will make a decision on whether it is helpful. I can certainly see no problem with it.
Does the Taoiseach accept that although the Garda have received guidelines on the entitlement of the victims of crime to be informed when no prosecution is being taken, they are not being observed and in no case — certainly no case that I have come across — have the victims been informed when a decision is taken not to prosecute?
Does he further realise this is causing the victim and their families a great deal of anguish and that it could be resolved by a simple amendment to the 1974 Act which would put an obligation on the authorities to inform the victims and-or their families when a decision is taken not to prosecute?
A circular was issued on 8 December 1988 giving guidelines to members of the Garda Síochána telling them the victims should be informed when a decision has been taken about a case. The Deputy was probably in a better position for some time than most Members to inquire why the Garda Síochána were not enforcing that circular, if that was the case. I will inquire as to whether the Garda Síochána is abiding by this circular. I have explained the good reasons that we cannot get involved in giving information on the reasons for non-prosecutions but, as the Deputy suggests, what he has referred to now is a different matter. I see no problem with conveying that information and I would be very concerned to learn if the Garda Síochána are not respecting that. I will make inquiries from the Garda Commissioner about the matter and communicate with Deputies O'Dea and O'Donnell who are genuinely interested in this matter although I disagree with Deputy O'Donnell's view.
I am genuinely interested in this area. Arising from the Taoiseach's replies he appears to have a major problem with the publication of the fact that the DPP will not pursue a prosecution, which he says should not be done because it may influence public opinion against him.
May I clarify what I said?
I said I would have a problem with the publication of reasons for non-prosecution but I have no problem with the publication of the fact of non-prosecution.
For the Taoiseach there is a problem with the publication of reasons that a prosecution is not proceeding. However, in reply to a supplementary question from Deputy Brennan he suggested he had no problem with the publication of the fact that investigations were continuing in the DPPs office. Does he not think that the same opprobrium might be brought on a prospective defendant by reason of the fact that when those investigations are completed there may well be no grounds for a prosecution? Why does he differentiate? Is a citizen not entitled to privacy until such time as proceedings are instituted before public opinion is allowed to decide, as he said, whether someone is innocent or guilty?
There is a distinction to be drawn between the fact that a file has been referred to the Director of Public Prosecutions and saying where the file is and what is happening to it, whether it is completed. That is simply factual information and is readily available under the guidelines already in force. There is a distinction to be made between that and publishing reasons for a particular decision where one implicitly enters debate about the validity or otherwise of the reasons. I do not think that is valid for the reasons I have explained in response to Deputy O'Donnell. To give another example of the difficulties that could arise, the DPP could decide that a particular person is not a good witness and is not prosecuting because he feels the witness would not stand up under cross-examination. It would not be fair to the witness in question to publish that sort of fact——
That should be up to the trial judge.
——because he may have committed no offence but the DPP may have decided that he would not stand up under cross-examination. These are reasons that one cannot have a general policy decision to publish reasons.
On the latter part of my question which relates to an accused person who manages to get an injunction to halt a prosecution, does it not offend the Taoiseach's sense of justice that an injunction could be obtained by an alleged paedophile to halt a prosecution and that the decision would not be appealed by the State on behalf of the victims? That actually happened in a recent case.
That could only have happened if the court agreed to it. It seems we have two fundamental principles: (1) that one is innocent until proven guilty, and (2) that the courts are independent.
The State could have appealed that decision but did not.
I do not believe one should encroach on either of those areas. As regards the State making an appeal, that is a matter for the State representatives to decide and in the case of the DPP he is statutorily independent to make that decision on a pragmatic basis. As I explained at great length to the Deputy if we get into a situation where, because of political pressure, we want every decision of the DPP explained he will no longer be independent of politics. We could return to the original situation because prosecutions were decided ultimately by the Attorney General who is politically accountable as the adviser to the Government but for good reasons in the 1970s it was decided that the State prosecution service should be independent of politics. There are disadvantages to that such as the situation to which Deputy O'Donnell referred but there are also substantial advantages that one does not get into a situation where an accusation can be made that a person is not being prosecuted because of political connections or political popularity.
The State should always go the full way for the victims.
The House will agree that we have dwelt on this question for a disproportionate amount of time, nearly 20 minutes to the detriment of all other questions on the Order Paper. The Chair has an obligation to strive for equity and justice for Members.
