This is the full text of the letter from the Director of Public Prosecutions, Mr James Hamilton, to the Attorney General, Mr Michael McDowell SC, in relation to the case involving Nora Wall and Paul McCabe:
1 October, 1999
Mr Michael McDowell SC, Attorney General, Government Buildings, Merrion Street, Dublin 2.
Dear Attorney General,
You have asked me for a report on the events surrounding the prosecution of Nora Wall and Paul McCabe and the circumstances of the subsequent decision to consent, in the Court of Criminal Appeal, to their conviction being set aside on appeal.
I have reviewed the papers in the case and discussed the matter with senior counsel in the case, with the Professional Officer in my office who dealt with the matter, and with the Chief State Solicitor and the Assistant Chief State Solicitor who has responsibility for the Criminal Trials Section of that office.
The application to the Court of Criminal Appeal to direct a retrial of both accused stands listed for mention on 1 November 1999. Since this application has not yet been dealt with and since a re-trial of both accused may take place, the case is subjudice. I have yet to form a view on whether this application should proceed and will not do so until the transcript of the trial becomes available.
I have therefore confined this report to organisational questions concerning the sequence of events leading up to and at the trial. I have avoided dealing with any question of substance concerning the evidence against the two accused. In particular I have avoided making any reference to the reasons for making a decision not to call a particular witness, both because in principle it would be wrong to give such reasons and also in order to avoid creating any prejudice in relation to a possible re-trial. While in theory it might be possible with proper care to answer the organisational questions which have been raised without entering into a discussion of matters which might cause prejudice to a future trial, I wonder if in practice, in the robust atmosphere of Dail question-time, such an outcome would really be practicable. The safest way to avoid any such prejudice would be to defer discussion of the matter until after the case has finally been determined and until the re-trial, if there is one, takes place.
The Sequence of Events
On the 24 April 1997 this Office issued a direction to prosecute Nora Wall and Paul McCabe.
The evidential content of the file had been considered prior to that date.
In its direction this Office specifically directed that a copy of the statements made by the witness P.P. be furnished to the defence solicitors and that they be informed that the prosecution did not intend to call her as a witness.
The Office of the Chief State Solicitor furnished the defendants with a copy of the statements made by P.P. which had been submitted with the Garda file. However, owing to an oversight that Office omitted to inform the defendants that it was not intended to call her as a witness. In that context her statements were not included in the Book of Evidence served on the defendants. However, non-inclusion in the Book of Evidence would have indicated to the defence that the State at that stage did not intend to call her as a witness.
On the 12 November 1997 Nora Wall and Paul McCabe were returned for trial to the Central Criminal Court.
On or about the 13 January 1998 the Office of the Chief State Solicitor forwarded prosecution briefs to Senior and Junior Counsel nominated to appear on behalf of the Director to enable them to advise the proofs of the evidence and the witnesses which would be required at the trial. In compliance with the direction, Senior Counsel did not refer to P.P. in the list of witnesses proposed to be called set out in his advice on proofs dated 2 February 1998.
In his advice on proofs, among other matters Senior Counsel directed that a certain number of points be dealt with by way of notices of additional evidence to be served on the accused. He also directed that all statements not contained in the Book of Evidence be furnished to the solicitor acting for the accused, and be available in court. These advices were not in any respect unusual. The statements not contained in the Book of Evidence included the statement of P.P.
The Garda Siochana subsequently furnished copies of all statements not in the Book of Evidence to the Chief State Solicitor's Office; these included the statement of P.P.
The Chief State Solicitor's Office wrote to Senior Counsel on 16 April 1998 enclosing the Garda report and "various statements and additional statements as received following your advices". This was a correct description of what was included, which contained, among other material, the statement of P.P. The letter went on to state that the Garda officer "has included a number of statements which were not included in the Garda file. These have only now been received by this Office." This also was a correct statement. Counsel, however, understood this to mean that none of the statements which were included had been on the Garda file and that all were new. While this conclusion was mistaken it is not difficult to see how the mistake was made.
Senior Counsel then wrote a supplementary advice on proofs dated 28 April 1998 in which he advised that P.P. be called as a prosecution witness. I have asked Senior Counsel to explain why he so advised notwithstanding the direction of 24 April 1997. Having carefully considered the matter and reviewed the file, Senior Counsel is satisfied that at the time of advising he failed to advert to the direction which was not then present to his mind. He believes that he failed to realise that the statement of P.P. had previously been seen by him when submitted with the original file, and, for the reason set out above, treated the statement as though it was new material which had only come to hand.
A copy of the supplementary advice on proofs was not submitted to the Office of the Director of Public Prosecutions until after Nora Wall and Paul McCabe had been convicted and sentenced. It is, however, not always the practice to submit counsel's advices on proofs to the DPP's Office and it is common for the advice on proofs to be acted upon by the instructing solicitor without the involvement of the Professional Officer in the DPP's Office.