ANALYSIS:The 1974 Act outlawing the making of any approaches to the Garda with a view to influencing a prosecution was known to Sargent
IT IS “unlawful” for anyone not directly connected with a case to attempt to influence the DPP or a member of An Garda Síochána in the taking of a prosecution.
However, while it is unlawful under the 1974 Prosecutions of Offences Act, it is not a criminal offence to do so, and the Act seems designed to protect gardaí and officials in the DPP’s offices from such approaches, rather than punish the person making them. The Act does not contain any penalty.
The law appears to have been designed to protect politicians from being asked to make requests on behalf of constituents seeking to have prosecutions either dropped or initiated.
Some years ago the DPP, James Hamilton, wrote to the then Ceann Comhairle and the leader of the Seanad drawing their attention to this section of the Act, and asking them to draw it to the attention of members of the Oireachtas. Trevor Sargent has been in the Dáil since 1992.
The 1974 Act states: “It shall not be lawful to communicate with for the purpose of influencing making of a decision to withdraw or not to initiate criminal proceedings or any particular charge in criminal proceedings.”
It continues that if anyone in such an official capacity becomes aware of such a communication, it is their duty not to entertain it further. However, either the defendant, the complainant, a member of their family, their lawyer or medical adviser may communicate with the Garda or the office of the DPP on their behalf. Mr Sargent was clearly not acting in any such capacity when he wrote to the Balbriggan garda.
His communication was therefore unlawful under the Act and the garda in question was obliged to ignore it, and should have informed Mr Sargent making such a request was unlawful.
There is a procedure in the DPP’s office for dealing with such communications, whereby they all go to a separate section.
Mr Hamilton told The Irish Timesthat the author of such a communication is written to and informed of the relevant section of the Act and the fact that such a communication is itself unlawful.
In addition to this Act, there is a common law (non-statutory) offence of perverting the course of justice, which carries a term of imprisonment up to life, though those convicted have usually received sentences in low single figures.
Because it is a common law offence, it is difficult to be exhaustive about how and when it arises, but it includes knowingly making a false statement in the course of an investigation, fabricating or destroying evidence, or using threats or inducements to influence a witness or a member of the Garda Síochána. None of these arise here. What did occur was an attempt to influence the course of an investigation and prosecution which was unlawful and, at best, unwise.
The last time a Minister of State attempted to influence the outcome of a criminal case was when Bobby Molloy contacted a judge hearing a rape case to enquire whether he had received a letter from the brother of the accused. The approach was not illegal, but it was highly inappropriate, and Mr Molloy apologised to Mr Justice Philip O’Sullivan, to the Central Criminal Court and to the victim.
This was not enough, however, and he then resigned.