The merciless killing of the late Garda Jerry McCabe and the attack on his colleague, Garda Ben O'Sullivan, was an outrage. It was widely condemned at the time by all right-thinking people. I do not believe any of us will forget the shock we felt at hearing of those dreadful events at Adare. While the response to the use of weapons of death in pursuit of any criminal escapade can never be other than outrage and condemnation, there is no doubt that when the weapons are directed at those whose duty and calling it is in our democracy to enforce the law, the crime takes on a level of gravity which distinguishes and marks it apart in the public mind. Then we are faced not only with the savagery and inhumanity which the commission of any such act entails, but also with the widespread sense and reality that the authority of the State has been attacked.
It is right and understandable that the sense of outrage we shared then has not diminished with the passage of time, and the proof of that continuing outrage is the widespread concern about what transpired in the Special Criminal Court last week. It is right too that this House should take the first appropriate opportunity to discuss this matter and I am grateful to the Whips and Opposition spokespersons for their co-operation in arranging this debate.
All Members will be fully aware that under the Constitution the courts are independent in the performance of their functions. The same applies, under the Prosecution of Offences Act, 1974, to the Director of Public Prosecutions. Prior to that, the DPP's functions were performed by successive Attorneys General. Although it is widely accepted that successive Attorneys, who were appointed on the nomination of the Taoiseach of the day, performed their prosecutorial functions independently, without fear or favour, it was felt in 1974 that the time had come to reinforce the perception of independence through the devolution of this function to an independent Director of Public Prosecutions.
Introducing the Bill, the then Parliamentary Secretary to the Taoiseach, the late Professor John Kelly, stated that one of its primary aims was "to ensure, as will be generally agreed to be desirable, that our system for the prosecution of offences should not only be impartial but should be seen to be so, and that it should not only be free from outside influence but should be manifestly so".
He further stated it should also remove any grounds for thinking that political considerations influence the Attorney General in carrying out his function as regards criminal prosecutions and that the "Government's objective of a clearly impartial system for the prosecution of criminal offences will be achieved by the provision, expressly written into the Bill . . . that the Director of Public Prosecutions is to be independent in the exercise of his functions".
Deputies will know also that my predecessors in office from different political parties have repeatedly made clear in this House that they were not involved in Garda operational matters, most particularly not in making decisions in relations to Garda investigations of crime, nor did they have a role in decisions about the handling of criminal trials. I am in the same position as they were, and I have respected and will continue to respect the separate role of the Garda Síochána in the investigation of crime and of the DPP in prosecuting crime.
The independence of all the agencies at issue in the matters I have set out is not a convenient cloak, it is fundamental to the manner in which the rule of law and our system of Government operate. In these circumstances the House will appreciate it follows that we have no function in seeking to go behind the decisions made in particular cases; nor, as Minister, would I be in a position to account for the decisions taken by these agencies in a particular case. I am not privy to the detailed discussions among the legal teams handling cases, nor should I be.
Clearly, however, in any democracy the matter does not simply rest there. The House is entitled, consistent with the respective roles of the various agencies I have outlined and in light of my responsibilities as Minister, to hear as full an account as I am in a position to provide in relation to matters which have given rise to public concern. This is particularly so in the context that we as a Legislature have an obligation, as do I as Minister, to address as best we can public concern about particular issues, and make an assessment as to what, if any, action might be open to us on these matters.
Before giving the House an account of the events as known to me, I want to make two points abundantly clear. The first relates to public comment on the question of political involvement in the decision made by the DPP. Neither I nor any official of my Department sought to interfere in any way in the DPP's decision making process in this case. I believe my predecessors would be as appalled as I am by any such suggestion. Deputies on all sides of the House would condemn such interference were it to take place and they would be right to do so.
The second point is that the file on the Adare case remains open. There has been public comment to the effect that other suspects who may have been involved in this crime are at large at present. I can confirm for the House that the gardaí believe a small number of people could help them with their inquiries. I sincerely request Deputies to accept we are all equally anxious to have all those whom the gardaí wish to interview in connection with the Adare crime made available for interview. However, I am sure and am advised that this outcome would not be assisted in any way by the naming of names, nor if we were to speculate here or elsewhere about the likelihood of adopting particular legal strategies to have the persons concerned brought back to this jurisdiction.
The broad facts surrounding what happened in the Special Criminal Court during the course of the trial in question are largely a matter of public record. The trial began on 12 January 1999. During its course it became obvious that the prosecution would not be able to rely, in the case of some witnesses, on the evidence which had been given earlier in statements to the Garda. Two of those witnesses – who were immediate relatives of one of the accused – would not testify in line with what they said in the statement which they made to the Garda and at the request of the prosecution were deemed to be hostile witnesses. A third witness, who had previously stated that the raiders had returned to his house after the robbery, simply refused to testify in the trial at all and was sentenced to 18 months imprisonment. I shall return to why the witnesses in question failed to testify, but these essential facts set out the background against which a plea bargain was entered into in this case. I make it clear in this context that I am using the term "plea-bargaining" for the sake of convenience. However, it should not be taken from my use of this term that there was any judicial involvement in the process which might be the case in other jurisdictions.
It may be helpful to give the House some background on the practice of plea-bargaining in this jurisdiction. The Law Reform Commission in its Consultation Paper on Sentencing sets out the law generally on plea-bargaining. It pointed out that in the vast majority of cases in Ireland sentence is imposed subsequent to a plea of guilty by the defendant to at least some charges. It points out that practitioners suggested to it that very many of these pleas are the result of negotiations with the prosecution – what is generally known as "plea-bargaining". While it is the case that very many of these would arise in the context of relatively minor cases, the commission, in setting out a list of what it refers to as the practical benefits of plea-bargaining, mentions "The result is certain and may be preferable to the possibility of the accused person being acquitted of a number of charges or of a more serious charge".
Essentially what was at issue in the case we are debating here today was that the Director of Public Prosecutions, in consultation with the legal team conducting the prosecution in court, had to make a judgment in the light of facts and circumstances which began to unfold as the trial proceeded. The consequences of these circumstances, the general nature of which I outlined, were put on the record of the Special Criminal Court by Mr. Edward Comyn, S.C. who the House will be aware is one of the most experienced criminal trial lawyers in this State. Against this background, discussions took place between the legal teams for the prosecution and the defence during which the defence indicated that the accused would plead guilty to manslaughter on the understanding that the murder charge would not be proceeded with. It was obviously the prosecutors' professional judgment that, in all the circumstances, the right course was to opt for the certainty of a conviction, rather than run what was judged to be the unacceptable risk, if the murder charge were insisted upon, that the killers would walk free.
Because of his statutory independence in such matters, it is not a matter for me to account for or defend the decision which was ultimately reached by the Director of Public Prosecutions in this case. However, in saying that, I believe all Members of this House will accept that this would have been one of the most difficult and sensitive decisions which the Director of Public Prosecutions has ever been called upon to make. While it is a matter of regret and deep disappointment that the highly experienced prosecution team found themselves in a situation where, on the basis of their own professional analysis, an insistence on holding to the murder charge carried an unacceptably high risk of failure, we should all acknowledge, in fairness to everyone concerned, that the deciding factor was professional judgment, honestly reached, and not any extraneous consideration. It is the case that the senior gardaí involved in the case were kept fully abreast of what was judged by the lawyers to be the appropriate course before the decision to accept the plea was made. They were as disappointed as everybody else at the way the case was turning out, but they too had to follow the advice they received.