A prosecution against Frank Connolly would be difficult to mount in the light of recent publicity, writes Carol Coulter, Legal Affairs Correspondent.
Whatever charges may have been in preparation against Frank Connolly, a trial is now unlikely in the light of the publicity the allegations against him have received.
The last time a minister commented in relation to criminal allegations against a prominent citizen it was Michael McDowell's party colleague Mary Harney.
In 1997 she gave an interview to the Irish Independent which led to the indefinite postponement of the trial of Charles Haughey on charges of obstructing a tribunal. The court ruled she had prejudiced the trial by suggesting he should be convicted.
If charges were laid against Frank Connolly, it is highly likely he could contest any possible trial on the same grounds.
We do not know whether any charges are in preparation against him. We do not even know whether the investigation into allegations that he applied for a false passport, and other allegations relating to this matter, have been completed.
The public is aware only of a number of allegations put into the public domain by the Minister for Justice and others, which have not been subjected to objective scrutiny. These will inevitably colour any possible future trial.
But even without the intervention of the Minister for Justice, mounting a successful prosecution would not be easy.
When the DPP receives a file from the Garda Síochána with a view to mounting a prosecution, he must consider a number of issues.
According to the DPP's own Guidelines for Prosecutors, the first of these is whether the evidence is sufficiently strong to justify a prosecution. The guidelines state: "If the answer is No the prosecution will not be pursued".
The next question considered by the DPP is whether the prosecution is in the public interest. This is related to the strength of the evidence. "It can be said that it is not in the public interest to use public resources on a prosecution which has no reasonable prospect of success," the DPP has said.
"It is clear that a prosecution should not be brought where the likelihood of a conviction is virtually non-existent. Where the likelihood of conviction is low, other factors, including the seriousness of the offence, may come into play in deciding whether or not to prosecute."
To mount a prosecution in this case it would first be necessary to identify what crime had been committed. It is an offence to forge official documents such as a passport. But this offence may not be easy to prove.
How many people are really known to local gardaí when they seek to have their passport application signed? How many gardaí would remember what the applicant looked like days, let alone months, later? How could it be proven that the person who submitted the forged documents was the person accused of the forgery?
If a person travels abroad on a forged passport no offence is committed under Irish law. He or she is likely to have committed an offence against the law of the country entered with the false passport, but there is no automatic prosecution in Ireland of offences against other countries' laws. The question of extraterritorial prosecution then arises.
The legislature can legislate, and has legislated, for specific offences committed abroad to be offences also in Ireland. Discussions take place regularly between law enforcement agencies, especially at EU level, about co-operation in the prosecution of serious crime.
But being at large in Colombia with a false Irish passport has not, as yet, been made part of such legislation.
Many of the charges laid against Frank Connolly, therefore, are not criminal charges, but allegations of political associations and activities that are opposed by the Government and, indeed, by many others inside and outside the Oireachtas.
In particular, Mr McDowell has implied that Mr Connolly was part of an IRA-linked group that travelled to Colombia with a view to raising money from the training of Farc guerrillas.
Membership of the IRA is also a criminal offence, for which the necessary evidence is the opinion of senior Garda officer. It is also an offence with which Mr Connolly has not been charged.