A Briefing Paper on the Office of the Director of Public Prosecutions.

This document, which examines the role of the Director of Public Prosecutions, is based on a premise which the Pat Finucane Centre holds regarding the events of the past thirty years. The premise is that one of the fundamental causes of conflict on this island has been the failure to uphold Article 7 of the Universal Declaration of Human Rights,

"All are equal before the law and are entitled without any discrimination to equal protection of the law."

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Foreword

The failure to uphold this principle, which should form the very bedrock of a democratic state, is, we would argue, the root cause of the alienation which drove thousands to decide that the state itself was illegitimate and that violence was, therefore, a legitimate response. While the structural violence of discrimination brought a whole generation onto the streets in peaceful protest it was the traumatic realisation that state violence could be inflicted with impunity which caused ordinary people to turn their backs on peaceful protest. Where to turn if the lawmakers were the lawbreakers?

The tragedy which befell the family of Charles and Gary English is a microcosm of the dilemma posed when the state, whose duty it is to uphold the law, instead violates the law repeatedly with no sanction. On 6 August 1985 Charles English, an IRA volunteer, died when a home made grenade launcher exploded in his hands in the William St area of Derry. He was 21. Understanding why he had waited to ambush and presumably kill members of an RUC patrol is central to understanding this document on the office of the Director of Public Prosecutions. What drove him to do what he did? The explanation is to be found four years earlier only several hundred yards from the spot where he died. On Easter Sunday 1981 there was sporadic rioting in the Bogside. A crowd, including Gary English, brother of the later IRA volunteer, had gathered to watch. Two British Army landrovers came driving down Creggan Hill at speed. Gary and another young boy called Jim Brown (18) turned to run. Jim Brown was struck by the leading landrover and thrown some 60 feet into the air. His death would have been instantaneous. Gary English was also struck by the landrover though it remains unclear whether this was the cause of death. The patrol leader, Colour Sergeant Smith, dismounted from the vehicle, established that Brown was dead and then proceeded to reverse back over Gary English’s body. Witnesses were adamant that the landrovers had deliberately ‘aimed’ at the crowd and that the crew of the landrover had a clear vision of the seriously injured boy on the roadway as they reversed. Despite evidence which should have prompted the DPP to charge the driver with murder or manslaughter the DPP chose to treat the incident as a traffic offence. The driver was charged with reckless driving and acquitted. Bishop Daly said he was disgusted at the verdict. The justice system had completely failed the family of Gary English. Mickey English, father of the victim, campaigned for justice for many years without success. Charles made his own decision. It would eventually lead to his death. His father commented,

"It is my conviction that I would not have lost a second son had justice operated for us in the first place over the death of […Gary]."

Would Charles English have joined the IRA had he lived in a democratic state where all were equal before the law and entitled to equal protection?

It was stated above and will be argued in this document that the state repeatedly violated the law without sanction. It was the statutory duty of the DPP to apply the sanction. The office of the DPP failed to do so, repeatedly.

Part I of the document outlines in some detail the historical and statutory background to the office of the DPP. As such it provides a framework for Part II, the more controversial section, which critically analyses the performance of the DPP. Part III offers proposals for reform.

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Introduction

The Director of Public Prosecutions for Northern Ireland (DPP) possesses the discretion to prosecute individuals charged with serious offences in Northern Ireland.

The practical application of the discretion to prosecute by successive Directors has been a matter of key concern as controversy has repeatedly surrounded prosecution decisions made by the DPP. For example, there is a perception that the DPP played an important role in enabling the perpetuation of the ‘supergrass’ system. The DPP has also allowed the prosecution of individuals to proceed even in cases where brutality had clearly been used to extract admissions. Thus, the office of the DPP has left itself open to the allegation that it was a fundamental element within the British policy of criminalisation. In stark contrast is the dramatic lack of prosecutions of RUC officers and British soldiers where they have not upheld the rule of law. It therefore appears a double-standard is applied within the criminal justice system in Northern Ireland: a system whereby members of the security forces can seemingly act with impunity while others can be prosecuted on even the most tenuous of evidence.

Despite this, research related to the office of the DPP has been lamentably neglected. In response to the lack of detailed information about this fundamentally important aspect of the criminal justice system, this document seeks to provide an account of the functions and role of the DPP, and to highlight some of the key issues and controversies.

In addition, the paper offers a number of proposals for the replacement of the office of the DPP within the context of the reform of the criminal justice system currently under review.

The paper brings this information and analysis together to provide a focused document that can be used to ensure that when the results of the Criminal Justice Review are published the proposals for who should possess the discretion to prosecute, and the mechanisms that should be in place to ensure impartiality, can be subject to informed scrutiny.

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General aim:

The central purpose of this briefing paper is to provide a constructive, critical analysis of the Director of Public Prosecutions for Northern Ireland within the prosecution process.

Specific objectives:

1. To describe the role a prosecuting authority is intended to play within the prosecution process, including highlighting the framework provided by international law;
2. To provide a detailed fact-file about the DPP;
3. To outline the key concerns held about the DPP;
4. To offer recommendations for the reform of the office of the DPP within the broader reforms of the prosecution process;
5. To enhance detailed understanding of the office of the DPP in order to enable thorough, constructive analysis of any reforms proposed by the Criminal Justice Review Group (CJRG) relating to the prosecution process.

Limitations

The Pat Finucane Centre decided to publish this document to rectify a general lack of detailed knowledge about the DPP. Limitations included:

1. Lack of prior research: while this was the primary reason for undertaking the document, we did not realise exactly how little work has previously been done relating to this fundamentally important subject. There has been a surprising lack of prior research despite the vital function the DPP performs within the prosecution process, and the controversies that have accompanied the prosecution decisions in cases too numerous to mention.
2. The lack of time available: due to various circumstances, only a short period was available to collate and analyse information and to assemble this document. Despite this, we believe the document goes a long way to providing an informative, constructive and analytical account of the DPP which is valuable in ensuring the reforms proposed by the CJRG are constructive and address all key concerns held about the DPP.

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Executive Summary

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Key concerns:

• The DPP has failed to operate in a manner that confirms his independence from political influences.
• The DPP has failed to perform his functions with impartiality and fairness.
• The prosecution process lacks transparency and therefore frustrates legal accountability.
• There is concern at the lack of efficiency that apparently pervades the work of the Department of the DPP.
• In the performance of his functions, the DPP has failed to meet the minimum standards required under the United Nations Guidelines on the Role of Prosecutors.
• There has been an unacceptable failure to administer justice in cases where there is evidence of a lack of respect for the protection of human dignity and where infringements of human rights have been committed.
• The prosecution process appears to have played an integral role in establishing and perpetuating the British security agenda throughout the conflict. As a result, the DPP lacks credibility within sections of the community in Northern Ireland. This represents a failure to achieve the primary aim behind the creation of this office, namely to increase public confidence in the prosecution process.
• The Department of the DPP must therefore be dissolved and a new mechanism should be instituted to perform these duties.

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Proposals for reform:

The Criminal Justice Review, established as a result of the 1998 Agreement, is currently addressing, amongst other issues, the issue of ‘the arrangements for the organisation and supervision of the prosecution process’. It is vital the British government creates a system whereby the prosecution process functions independently and effectively within whatever circumstances prevail within this society.

With the objective of attaining a fair, transparent, accountable, and efficient system of prosecution, we propose a number of reforms to the present prosecution process in the final section of this document. These proposals are grounded in the notion that in a democratic state the law must be applied impartially, and that any state which claims moral legitimacy must apply that law equally to all. With this in mind, the new mechanisms instituted must seek to fulfil two fundamental demands:

1. The prosecuting authority must function to administrate justice.
2. The prosecuting authority must be seen to be administrating justice.

Reflecting on the past inadequacies of the DPP to fulfil these demands, the briefing paper outlines why the office of the DPP should be dissolved within the process of the reform of the criminal justice system.

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The Prosecuting Authority:

Criminal procedure is divisible into four primary elements:

1. The investigative stage – which is carried out by the RUC;
2. The pre-trial phase – this phase involves the transfer of files from the RUC to the DPP for an assessment as to whether prosecution should be initiated or continued, or for charges to be dropped;
3. The criminal trial – the case enters the jurisdiction of the court; trial procedures and consequences (for example sentencing);
4. Post-sentencing issues – such as appeals.

It is the second category, namely the post-investigation pre-trial phase, which is primarily under scrutiny in this document. The importance of this phase must not be understated for a number of fundamentally important reasons:

1. Prosecuting authorities typically possess wide powers of discretion, whilst there is no real duty to account for its exercise.
2. The manner in which this discretion is exercised is of crucial importance. Considerable care must be taken in each case in order to ensure the right decision is made. A wrong decision to prosecute has significant implications for the wrongfully accused individual, as it causes anguish and anxiety to the individual and his/her relatives, and, in some cases, the mere decision to prosecute brings an instant stigma to an individual which an acquittal may not easily remove. A prolonged decision may also result in a person spending time in remand for an offence s/he is not subsequently prosecuted for. A wrong decision not to prosecute also has important implications as it, too, undermines public confidence in the overall criminal justice system.
3. It is during this phase when fundamentally important decisions are made prior to the invocation of the formal criminal process. Unless assurances of fairness are available in respect of a decision to invoke a criminal prosecution that leads to trial, monitoring and guaranteeing the fairness of the latter phases are frustrated.
4. Only a small number of cases proceed to the third phase, therefore scrutiny of the decision-making procedures and practices are vitally important to ensure justice is being administered in practice.

The prosecuting authority is the central figure in the link between law enforcement and penal sanction. In this role s/he operates as a pre-court filter for cases which are commenced by the RUC but which are not prosecuted by them. The primary task of any prosecuting authority, therefore, is to decide whether to proceed with prosecution.

Essentially the role of the prosecuting authority is to ensure justice is administered. This encompasses a dual aim: the guilty shall not evade justice and the innocent must not suffer injustice. However, it is questionable whether the due process aspiration of the criminal justice system is realised in a de facto sense as prosecutors discharge their responsibilities in an adversarial context. In seeking to have the prosecution case sustained the prosecution is ‘fighting the communities corner’ - fighting this corner implies that while the case must at all times be presented fairly and justly, that the community is also entitled to expect it shall be prosecuted fearlessly, vigorously and skilfully. Nevertheless, the prosecuting authority is expected to not be partial in the way the defendant is likely to be, as the role of the prosecutor is not to secure a conviction at any cost. Ethical obligations provide that while the prosecutor operates within an adversarial system s/he is fundamentally obliged to protect the innocent as well as to convict the guilty.

The special status proffered upon the prosecuting authority entails legal and moral obligations. Both prosecution policy and individual prosecution decisions should be informed by an awareness of social justice. The prosecuting authority and his staff must also operate in a manner which both protects human dignity and promotes human rights. Prosecuting and defence of human rights are not at opposite ends of the criminal justice spectrum. Far from being irreconcilable principles, they should in practice be inextricably linked.

To aid the achievement of this end, the United Nations adopted a set of Guidelines on the Role of Prosecutors.1 While the International Bill of Rights2 and subsequent international human rights law outlines the basic rights and freedoms states and their institutions are expected to uphold, these Guidelines provide a set of minimum standards with which the prosecuting authority of a state should comply in order to perform his functions optimally and with the greatest respect for human dignity. The Guidelines, recognising ‘that prosecutors are essential agents of the administration of criminal justice’, were ‘formulated to assist Member States in their tasks of securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings.’ In particular, special attention is paid to the requirements of ‘fairness, openness, accountability and efficiency’ in relation to prosecution matters.

Guideline 2(b) asserts that prosecutors

‘should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protection for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognised by national and international law.’ In the execution of their duties, prosecuting authorities are expected to perform ‘fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system’ (Guideline 12).

Prosecutors are expected to

‘perform an active role in criminal proceedings’ (Guideline 11), and to be ‘able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability’ (Guideline 4).

Guideline 13 provides that prosecutors shall perform their duties impartially, objectively, confidentially, and with consideration for the views and concerns of victims ‘when their personal interests are affected.’

The prosecution of crime committed by public officials is explicitly highlighted as a vital element of the role of the prosecuting authority, ‘particularly corruption, abuse of power, grave violations of human rights and other crimes recognised by international law’ (Guideline 15).

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Discretionary functions:

In many states, including the United Kingdom, the institution of criminal proceedings is discretionary. This discretion to prosecute is determined on a general basis, that of public interest. The Council of Europe provided the following guidelines for the use of the discretionary function:

‘The competent authority, in exercising this power, should be guided in conformity with its domestic law, notably by the principle of the equality of all citizens before the law and the individualisation of criminal justice, and especially by:

• the seriousness, nature, circumstances and consequences of the offence;
• the personality of the alleged offender;
• the likely sentence of a court;
• the effects of conviction on the alleged offender, and
• the position of the victim.’3

The Council go on to stress that: ‘In those countries where the public prosecutor is in a subordinate position or receives instructions from the Ministry of Justice, it may also be important to adopt a strict legal basis in order to avoid undue pressure being brought to bear on the decision maker.’4

The discretion to prosecute involves analysis of the evidence to determine whether there is sufficient evidence to ensure a reasonable prospect of a conviction. The prosecution also decides, withstanding the sufficiency of evidence, whether the RUC investigation requires a prosecution in the public interest. This involves determining if the case would be better resolved in some other manner, such as by way of a caution. Determining factors include the likely penalty, the staleness of the offence, the age of the defendant, the mental condition of the defendant, and the attitude and wishes of the victim.

This discretion to prosecute is obviously a strong power and it is open to abuse. Ayoola, a human rights academic, describes the importance of establishing a framework that ensures the discretion is applied in a fair and equitable fashion:

‘The manner in which such discretion is applied, and the process of prosecutorial decision-making, are central to the quality of the criminal justice system. If prosecutorial decisions are to lead to public confidence in the system and are to be consistent with Human Rights Norms, they must not only be just but also be seen to be so. The mechanism for arriving at such decisions must itself be seen to be such as can be conducive to fairness.’5

When a prosecuting authority is vested with these functions, the Guidelines on the Role of Prosecutors recommends ‘the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process’ (Guideline 17).

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Fairness, openness and accountability, and efficiency:

International law asserts these fundamental standards as essential yardsticks for the measurement of the operation of the criminal justice system. The Royal Commission on Criminal Procedure (1991) suggested the following test be applied in order to judge the prevalence of these standards within the criminal justice system:

‘Is the system fair; first in the sense that it brings to trial only those against whom there is an adequate and properly prepared case and who it is in the public interest should be prosecuted …, and secondly in that it does not display arbitrary and inexplicable differences in the way that individual cases or classes of cases are treated locally or nationally? Is it open and accountable in the sense that those who make the decisions to prosecute or not can be called publicly to explain and justify their policies and actions as far as that is consistent with protecting the interests of suspects and accused? Is it efficient in the sense that it achieves the objectives that are set for it with the minimum use of resources and the minimum delay? Each of these standards makes its own contribution to what we see as being the single over-riding test of a successful system. Is it of a kind to have and does it in fact have the confidence of the public which it serves?’6

Clearly, the prosecuting authority should be in a position to step back from any controversy surrounding a particular offence and/or the circumstances in which it was committed. This should enable him/her to make an informed and impartial judgement that has not been clouded by real politik or any other agenda. This vital concept is emphasised by Peter Osborne:

‘The role of prosecutor, therefore, is ostensibly to serve justice rather than the State – to stand aloof from the partisan nature of criminal trials rather than become embroiled in their politics. In the context of the adversarial ethos and crime control values, however, the extent to which these lofty aspirations are attained must be questioned.’7

The notion of the role of the prosecuting authority being to administer justice is an underlying theme of this briefing paper, which stresses not only the importance of achieving this notion but that it is vital the prosecuting authority be seen to be administering justice. The emphasis placed on the role the prosecuting authority plays in the protection of human rights is also a key theme of this paper, reflecting the assertion made by Ashworth that:

‘the concept of justice also includes the recognition of certain rights of defendants and victims.’8

1. Adopted by the Eighth Congress and welcomed by the General Assembly in its resolution 45/166 of 18 December 1990. While the Guidelines were drawn up to apply to public prosecutors, it is made clear that they are equally applicable to prosecutors appointed on an ad hoc basis. See Appendix 2 for the complete Guidelines.
2. The International Bill of Rights is generally regarded as the combination of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
3. Council of Europe (Legal Affairs) The Simplification of Criminal Justice, Recommendation No. R(87)18 adopted by the Committee of Ministers of the Council of Europe on 17 September 1987, p5
4. Ibid, p20
5. Ayoola The Discretion to Prosecute in Commonwealth Law Bulletin (1991) p1032
6. Report of the Royal Commission on Criminal Procedure (1981) Cmnd 8092, p127-8
7. Osborne, P. The Control of the Discretion to Prosecute (unpublished) p93
8. Ashworth (1994) quoted in Osborne Ibid p92

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