The constraints on the ability of the DPP to prosecute are much misunderstood, James Hamilton tells Carol Coulter, Legal Affairs Correspondent
Today two newspapers face accusations of contempt of court arising out of their coverage of the Brian Murphy manslaughter trial. The media coverage of that trial is also one of the grounds cited as the basis for an appeal on behalf of Dermot Laide.
This is not the first time the relationship of the media to the justice system has been raised in relation to a criminal trial. The prosecution of former taoiseach Mr Charles Haughey for corruption has been postponed indefinitely because of the publication of an article suggesting he was guilty.
The prosecution of George Redmond for the same offence was postponed to allow the "fade factor" to kick in, that is, for sufficient time to elapse between the remarks made and the trial to allow the jury not to be influenced by it.
The prosecution of a number of gardaí arising out of the policing of the "Reclaim the Streets" demonstration two years ago has also been postponed because of footage shown in a Prime Time programme on alleged wrongdoing by members of the force.
"There is uncertainty in the law concerning contempt," the Director of Public Prosecutions, Mr James Hamilton, told The Irish Times. "It is not always clear to the judge what you can and cannot say. There have been some decisions that have not clarified the law. The law is in urgent need of reform."
Publicity arising out of tribunals can also be used to argue that an individual cannot receive a fair trial in any later prosecution. A jury can be asked to put out of its collective mind all it has heard and read, but this can be a tall order, as was found in relation to Mr Haughey.
The judge in that case, Judge Kevin Haugh, sought to get around it by asking potential jurors to fill out a questionnaire, but such a procedure was ruled against by the High Court.
Media coverage is only one of the factors that can inhibit a successful prosecution. Allegations can be aired at tribunals, and a tribunal may even make a finding that such allegations are true, but this does not amount to a basis for a prosecution. A report from a tribunal can be "sent to the DPP", but this does not mean the DPP can then prosecute on that basis.
"Nothing in a tribunal report in itself proves anything," said Mr Hamilton. "There is a statutory provision that any admissions people make cannot be used in a prosecution. People can be compelled to give evidence to a tribunal, including admitting to a criminal offence, but the deal is that that can't be used against them.
"So all the DPP can do is ask the Gardaí to investigate. When the Gardaí go out to the person he can say, 'My solicitor has advised me to say nothing.' There is no evidence on which to base a criminal prosecution if that happens."
People have been accused by tribunals of obstructing their work, and this seems to be a clear basis for a prosecution. Not necessarily so, according to the DPP.
"The tribunal chairman can say he does not believe one version of events, as against another version, but in a trial I have to put up all the versions and ask the jury to believe the version believed by the tribunal chairman," he said. "Where something like concealing bank accounts is concerned it is easier.
"But there is a different burden of proof in a criminal case. A tribunal can hear two versions and prefer one over the other without any corroboration. But the bar in a criminal trial is 'beyond reasonable doubt', a lot higher.
"I sat down with the Gardaí and went through all the tribunal reports with them and identified each instance where a criminal offence appeared to have been committed and where there are obstacles to investigation and successful prosecutions," he said.
"A lot of the things being investigated relate to matters which happened years ago and now a significant number of the people involved are dead or too infirm to be reliable witnesses. We need people who make admissions to tribunals to make the same admissions to the Gardaí.
"We have to use the corruption laws in force 20 years ago. So any corruption that allegedly happened before 1999 is very hard to prove, if the person said he or she supported a political party, and if we can't show what specific act was done. The definition of corruption has since changed to include a presumption of corruption if an official takes money. There would not have been tribunals in the first place if prosecutions were easy."
Criminal prosecution is not the only threat facing some of those who appear before tribunals. Many have also attracted the unwelcome attention of the Criminal Assets Bureau (CAB), which is empowered to examine their financial affairs and seize assets suspected of being the proceeds of crime or liaise with the Revenue Commissioners in seeking unpaid taxes.
However, the CAB cannot prosecute, though it is sometimes stated that it does so. The only body that can initiate prosecutions is the Office of the Director of Public Prosecutions, on the basis of files prepared by the Garda Síochána, including the CAB. The only exception to this is summary cases, before a District Court, where the Garda can take prosecutions in the name of the DPP.
"People often want prosecutions in order to air suspicions," said Mr Hamilton. "But I can't do that. There is a two-stage test - is there credible evidence that a judge could send to a jury? And could a jury, properly directed, convict?"