The progress and outcome of a trial does not always meet the expectations of the victim's family, writes Carol Coulter, Legal Affairs Correspondent
Victims and the close relatives of victims are no longer the ignored bystanders in criminal proceedings they were in the previous times.
In cases of very serious crimes, such as rape and murder, they are now kept informed of the progress of the investigation by gardaí.
When the case comes to court, after the verdict and before sentencing, they are now allowed to address the court about the impact on them of the crime, or a victim impact report is prepared for the consideration of the judge.
This statement can be the occasion for a close relative of the victim to outline, often in harrowing terms, the impact of the death on them and their family. Often, too, it is an occasion when the impact of the whole process, including the investigation and the trial itself, is described.
Yesterday Majella Holohan, mother of Robert, spoke, not only about her son and the impact of his death, but about evidence obtained during the investigation but not presented to the court.
When a decision is made to prosecute for an indictable crime, one of the main factors taken into account by the Director of Public Prosecutions, or designated officials in his office, is the strength of the evidence and the likelihood of securing a conviction. It is also officials in the DPP's office, in consultation with their counsel, who decide what evidence should be presented to the court.
According to the DPP's Guidelines for Prosecutors (2001), "the prosecutor has to assess the admissibility, sufficiency and strength of the evidence which will be presented at the trial". Considerations include whether any of the evidence is likely to be excluded for constitutional reasons, whether the witness is reliable, and - where there might be doubts concerning a particular piece of evidence - whether there is any independent evidence to support it.
As the guidelines also point out, each case is unique and no formula exists that can be applied to every case. Instead, the expertise and experience of the DPP and officials are brought to bear on each case as the strength of the evidence is assessed.
Reasons for the inclusion or exclusion of certain pieces of evidence are never given publicly, just as the DPP cannot explain his reasons not to prosecute.
Some of these questions were brought into sharp relief in the Nora Wall case. She was convicted of participation in the rape of a child in her care where much of the evidence was that given by a young woman who claimed to have witnessed the rape.
Ms Wall's conviction was overturned on appeal, without objection from the DPP. It emerged he had decided not to call this witness at all, but she had been called through a breakdown in communication within the prosecution system.
In the event, her unreliability as a witness was drawn to the attention of defence lawyers by a member of the public accused falsely by her. She later admitted in court to having fabricated her evidence.
Had she not been called and had Ms Wall therefore not been convicted, it is easy to imagine someone raising a furore over the fact that a young woman had given a statement to gardaí that she had seen Regina Walsh being raped, but that the DPP had not called her.
It is very unlikely, had that happened, that the office of the DPP would have issued a statement outlining the basis for their suspicions about her credibility.
The situation is similar with factual evidence like DNA evidence.
Unless it has probative value, connecting a specific individual with a specific crime, and a qualified expert can swear that to the best of his or her knowledge, that connection can clearly be made, there is no basis for it being introduced in a trial.
Not only would officials in the office of the DPP be unlikely to present it in court, the judge in the case would be likely to exclude it if it appeared to serve no purpose other than to raise suspicions about the accused that could not be proved, thereby blackening him or her in the eyes of the jury without any proof.
Of course, this is likely to be of little comfort to a family kept abreast of the investigation by gardaí which would want to see every shred of evidence against the accused aired in a trial. It will be especially difficult for them if they think that some of the excluded evidence might, if introduced, have produced a different verdict.
That pain is likely to be exacerbated if a sentence is handed down that falls short of the maximum for taking a life, which is life imprisonment. This is the sentence available where a person is convicted of manslaughter, but in practice it is rarely imposed.
There are no statistics in this State for sentences for manslaughter, although there are in the UK, where the crime is similarly defined. There, the average sentence is 61 months, and it is likely that the average in this jurisdiction falls in the same range.
The judge who imposes sentence is obliged to follow the verdict of the jury, which in turn follows the evidence before the court. Four years' imprisonment for manslaughter, where there was a guilty plea and an explanation for the death that appeared to be accepted by the jury, falls within the ball-park for sentences in such cases.