Yes. I also appeared some years ago on another occasion. I have appeared before Oireachtas committees on several occasions.
I will begin by setting out what we have done and the thinking behind our approach. The obvious starting point is the traditional view adopted by my office, including by my predecessor and, before that, by the Office of the Attorney General when the latter performed the function of prosecutor. It is probably best summed up in a statement made by my predecessor in response to public concern about a particular case where he decided to discontinue a charge. He observed that it was always his wish, if some way could be found so to do, to give reasons and explanations to people for his decisions. He put it thus:
If some method can be devised whereby the director could, without doing injustice, inform the public of the reasons for his decisions, he will very willingly put it into operation. From time to time, his office is subject to criticism arising from its inability to respond to inquiries from interested parties such as the victim of a crime or the family of such a victim. Unfortunately, the director is unaware of any method in which reasons can be given without, in many cases, doing injustice.
He was referring here to the danger that giving reasons for a decision might, in some cases, imply that one believed a particular person was guilty of an offence, thereby condemning that person in public opinion without any opportunity for self-defence. In addition, there were other cases where giving a reason might reveal a confidential source, confidential police methods, confidential information or something of that type.
It has always been recognised that there are cases where one could not give any reason other than in general terms. The view was taken at the time that if a reason were given in one case, the same would have be done in every case. That view was in line with general practice in other common law countries. The situation is generally different in civil law countries where instead of the process taking place in the prosecutor's office, it operates in a more open way in front of a magistrate who effectively opens a file and hears the evidence about the case, whether in public or at least with a degree of formality that does not arise where a file is simply considered by a prosecutor.
That remained the position for some time. In 2003, there was a decision of the European Court of Human Rights which arose out of a case in Northern Ireland where, as far as I recall, a death had occurred in circumstances where the deceased was shot by the police or the army. The court held that this matter cut across the question of the obligation to protect the right to life under Article 2 of the European Convention on Human Rights. The court found that the obligation under the convention to secure to everybody within its jurisdiction the rights and freedoms defined thereunder also required by implication that there should be some effective and official investigative mechanism when individuals are killed as a result of the use of force. Such investigations must also be effective in the sense that they are capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible.
The decision of the court addressed the question of whether the Northern Ireland prosecutor was required under Article 2 to give reasons for a decision not to prosecute:
The court recalls that the DPP is an independent legal officer charged with the responsibility to decide whether to bring prosecutions in respect of any possible criminal offences committed by a police officer. He is not required to give reasons for any decision not to prosecute and in this case, he did not do so. No challenge by way of judicial review exists to require him to give reasons in Northern Ireland.
The decision referred to the fact that in England and Wales, inquest juries could still deliver verdicts which effectively made findings of liability. It went on to say:
The court does not doubt the independence of the DPP. However, where the police investigation procedure is itself open to doubts of a lack of independence and is not amenable to public scrutiny, it is of increased importance that the officer who decides whether or not to prosecute also gives an appearance of independence in his decision-making, where no reasons are given. In a controversial incident involving the lethal use of force, this may in itself not be conducive to public confidence. It also denies the family of the victim access to information about a matter of crucial importance to them and prevents any legal challenge of the decision. In this case, Pearse Jordan was shot and killed while unarmed. It is a situation which, to borrow the words of the domestic courts, cries out for an explanation. The applicant was, however, not informed of why the shooting was regarded as not disclosing a criminal offence or as not meriting a prosecution of the officer concerned. There was no reasoned decision available to reassure a concerned public that the rule of law had been respected. This cannot be regarded as compatible with the requirements of Article 2 unless that information was forthcoming in some other way. This, however, is not the case.
As a result of the Jordan decision, we were in a position where we would have to consider, at the very minimum, making a change in policy to cover a case where a death occurred involving agents of the State, whether gardaí, prison officers, Army members and so on. I was also aware at this time that the practice in other common law states had changed. In the course of the 1990s, for example, there was a change in practice in most of the Australian states towards a policy that, where possible, reasons would be given to victims or to the families of victims in fatal cases. In England, in 2002, the Crown Prosecution Service again made a change in its practice. In all these instances, while recognising that there were cases where a reason could not be given, the policy was shifted to one of giving a reason where that could be done without injustice. Scotland followed suit in 2005 or thereabouts. I understand Northern Ireland also has a policy of offering reasons, although only in a very general sense.
As a result of these developments, we decided to publish a discussion paper in which we set out the arguments for and against a variety of possible responses, ranging from a maintenance of the existing position with only the minimal change required to implement the Jordan decision through to a far broader policy whereby we would give reasons in all cases, with several possible variants in between. We invited interested parties to address various issues arising from this discussion paper. We asked whether the current policy should be changed and, if so, whether reasons should be given only to those with a direct interest, such as victims of crime or their relations, or whether reasons should also be given to the public at large. If reasons were to be given, we asked whether they should be general or detailed, whether they should be given in all cases or only in certain categories of serious crime and, if so, which categories. We asked how this could be done without encroaching on the constitutional right to one's good name and the presumption of innocence. We asked whether the communication of reasons should attract legal privilege, how cases where a reason could not be given without injustice should be dealt with, and by whom and by what means should reasons be communicated.
We received a good response to that consultation process. A total of 82 responses were submitted, several of them from prominent organisations including the Garda Síochána, the Garda Síochána Ombudsman Commission, the Law Society, the Office of the Information Commissioner, the Health and Safety Authority and the national counselling service for adults with a history of childhood abuse, as well as several lawyers, organisations working with victims and promoting human rights, and some private individuals. We analysed and summarised these responses in the report we issued on 22 October 2008 and in which we announced a limited change in the policy on a pilot basis. I understand copies of the submissions received have been circulated to members of the committee. They are also available on our website.
Following our consideration of the various responses we received, we conducted two internal seminars for staff because we considered it important to ascertain their views on how we should proceed. We also conducted a seminar for invited people, who in the main were those who had made written submissions, as well as some others. As a result, I decided I should make a change, albeit not in a "big bang" manner as I did not believe it would be wise to try to give reasons in every case. I thought it would be better to conduct a pilot project and to give reasons in a particular category of important cases. Effectively, these comprise alleged offences when a death has occurred and include murder, manslaughter, infanticide, workplace fatalities and fatal road traffic accidents, which obviously are the most serious cases one can envisage. The intention is that we will give reasons only to the families or members of the household of those concerned or to their legal or medical advisers or social workers acting on their behalf. The intention is to do this in respect of any cases that occurred on or after the date on which the policy change was announced, namely, 22 October 2008. In cases in which we decide not to prosecute, we will give a reason on request to people in that position.
We decided we would give such reasons in writing, rather than during a meeting with people, for a number of reasons. One is the question of resources, as having meetings would be much more resource-intensive and would be quite difficult. In addition, however, while it may seem rather cold and heartless to opt for doing something in writing rather than face to face, the advantage is one can choose one's words carefully and can be absolutely clear about what one is saying. Were one to meet a person, one may phrase something slightly differently than one had intended or it may be picked up wrongly by the person hearing it. One should bear in mind the circumstances in which one will meet people, who are likely to be quite vulnerable having lost a loved one in distressing circumstances. Consequently, the scope for possible misunderstanding can be multiplied in such situations and even were there not a resourcing question, I believe there would be quite strong arguments, initially at any rate, for dealing with such cases in writing.
We have also decided to try to give as detailed a reason as possible. While it is difficult to define this, the manner in which I phrased it was that people would be given the real reason, in order that they would understand. The reason would be such that it would enable them to understand the reason the decision was taken. If possible, they would be given a reason that was more than simply a rather general and bland matter.
Our intention is to monitor the operation of this policy during 2009. The monitoring will focus on two separate matters in particular. The first pertains to the manner in which it operates in so far as our staff are concerned in respect of their experience and its implications for the office's organisation and how we do our business. Second and more important, it will focus on the manner in which it is received by the families of victims of fatal crimes. It is our intention that in so doing, we will work closely with the Garda family liaison officers, who recently have begun to be appointed. I understand a number of further tranches of appointments are to be made. However, the idea is that the Garda will have dedicated family liaison officers who will deal with the families of victims of crime and will keep them informed of the progress of investigations.
The intention is that when we are requested for a reason and are sending out a letter, we will do so through the Garda authorities, that is, through the superintendent and the family liaison officers, if such have been appointed. We then will seek feedback from them as to whether people have understood the communication, whether they found it user-friendly and so forth. We also intend, inasmuch as possible, to draft these letters in a way that will be understood by people who do not necessarily have a legal background as people probably will have such a background in very few cases. We also have had discussions with the adult literacy organisation with a view to considering how we can make such communication as user-friendly as possible.
It also is important to note that this new policy is in addition to our long-standing policies on the rights of victims and their families, as expressed in the victim's charter. Such policies include one in respect of which Ireland possibly is unique, which is that if possible, we will review a prosecution decision on the request of a victim of his or her family. We also will review a decision on the request of the Garda Síochána and such reviews are quite regularly sought. When this happens, the matter then will be looked at by a different officer from the one who took the original decision. It may well be looked at by the deputy director or by me in certain cases.
There are some cases where we clearly cannot review a decision. For example, had I made the decision myself, in the absence of some further facts coming to light about which we had been unaware, the original decision would stand. However, we regularly review decisions and a significant number of them are changed. The original decision stands in most cases because it is accepted that it was taken for good reason but we change our view in respect of some decisions.
A second measure that we have been doing to an increasing extent is to offer a meeting with victims or their families before a trial in serious cases. This can be early in the process or, more likely, it can be shortly before the trial. The main purpose is to explain to people the procedures in court, what is going to happen, the manner in which the case will operate and so forth. For example, when dealing with a murder trial in which a question of whether to accept a plea to manslaughter may arise, increasingly it is the practice that victims are kept informed about such a process and their views are sought. Such views would not necessarily determine how we would approach this because we ultimately must make the decision. However, we listen to what they have to say and take into account any relevant opinions they might express.
The third measure we might take is to consider reviewing an unduly lenient sentence on the request of a victim or his or her relation. Apart from that, I have procedures in place to try our best to ensure that all sentences that appear to be possibly unduly lenient are reviewed in the office. It is important to so do, rather than simply responding when a fuss arises over something in the media. There is a danger that sentences which are unduly lenient but about which there is no publicity, which sometimes can happen, would fall through the net and not be considered. Consequently, a procedure exists whereby in each case, the solicitor who deals with it and who fills out the case report form at its conclusion is required to indicate whether he or she or the counsel involved in the case considered that the sentence might be unduly lenient. If this happens, we will consider it. Unfortunately, as the time limits are very short in such cases, that is, 28 days with a possible extension of another 28 days, they need to be considered quite soon after the case is heard.
Essentially, this is where matters stand. If this is a successful project, I intend to extend it to other areas, at which point questions of course will arise, such as the question of what resources are available to deal with it. To some extent, we are not in a position to be sure of the exact resourcing implications until we have operated this policy. Although I could be wrong, my instinct is that it will slow up decision-making in the early days. This will be not so much because people do not consider cases carefully at present, which they do, but because they will be obliged to structure things in a slightly different manner when considering the manner in which they might be obliged to explain a decision to a member of the public. While this will slow people up initially, I suspect it will not make a huge difference once they become used to it. In the long term, the resource implications could be fairly neutral. There probably are some resource implications but they might be relatively small. However, this is speculative and if we do encounter a difficulty, in that it turns out to be more resource-intensive than we had expected, it could create a problem. It is part of what the pilot project must evaluate and part of what we must assess when deciding whether to extend it.
I would wish to next extend it, if we are able to so do, to the area of rape and other sexual offences. I am aware there was great disappointment among the rape crisis centres that it was not included from the outset. My own instinct was that starting with a relatively small project, albeit one that deals with important cases, would be a more effective way to operate. When we do something for the first time, we learn lessons, problems arise and unanticipated issues might be encountered. It is easier to address them in a small project before extending it. Irrespective of whether people agreed, this is what we decided on.
That is everything in a nutshell. As I stated at a seminar a couple of weeks ago, some people speak of accountability, but it is not an exercise in accountability to victims. The position remains that we act on behalf of the community as a whole and prosecutions are brought in the name of the people. We do not just have regard to the rights of victims; we must also have regard to the rights of the accused and the community as a whole, our primary focus. Rather than accountability, it is a matter of fairness and a recognition that, if possible, someone more affected by a crime than anyone else should be in a position to know why a decision that will affect his or her life in a deep and important way was taken. In our discussions with victims' organisations, their inability to get reasons for decisions is what they all feel most strongly about.
I am available to answer questions on this policy and the changes therein.
