director of public prosecutions document

The Department of the DPP’s headed notepaper states that the Department is ‘An independent, fair and effective prosecution service.’ However, the only conclusions that can be drawn from carrying out an in-depth analysis of the DPP since the creation of this office is that the Department has proved to be far from being ‘independent, fair and effective’. The Department has also failed to meet the other international standards of transparency and accountability, and efficiency. It is also significant that the establishment of the office of the DPP was largely a public relations exercise. Established as a safeguard against unjustified prosecutions, and in response to allegations of RUC partiality in the performance of their duty to prosecute, it was an attempt to engender public confidence in the prosecution process. Clearly, though, the DPP has failed to achieve this aim and has instead managed to further diminish public confidence in the criminal justice system as a whole.

While it is generally recognised that the Department of the DPP has operated in a satisfactory manner in day-to-day decision-making, although efficiency needs to be improved, it is in the ability to administer justice in sensitive cases that the standards of independence, fairness, transparency and accountability, and efficiency have all proved elusive. The Royal Commission asserted that a prosecution system ‘... requires a high standard of competence, impartiality and integrity in those who operate the system. The guilty should not escape prosecution nor the innocent be prosecuted ...’.¹ However, the DPP has played a vital role in the administration of the politically motivated security agenda in Northern Ireland. This is in direct contradiction with his statutory role to administer justice.

Whereas the United Nations Code of Conduct for Law Enforcement Officials states the aim of the criminal justice system as being the prevention and control of crime, successive Directors have played their part in a process the primary purpose of which appears to have been to secure the conviction of individuals whom the RUC claim are guilty, whilst ensuring the security forces are able to carry out grave, and often lethal, actions with virtual impunity. This, therefore, represents a failure to serve justice rather than the state, emphasised in the introduction as an essential concept to the performance of the functions of any prosecuting authority. It also represents a violation of Article 7 of the UDHR, which states: ‘All are equal before the law and are entitled without any discrimination to equal protection of the law.’

The DPP possesses very strong powers and with these powers come legal and moral obligations. The failure of the DPP to operate within the framework provided by international standards and human rights law represents a blatant disregard for the protection of human dignity. Ethical obligations provide that while the prosecutor works within an adversarial system, he is fundamentally obliged to protect the innocent as well as to convict the guilty. The prosecutor must also guard the rights of the accused as well as enforcing the rights of the public. This requires a delicate balancing act to be played by the prosecuting authority, and this equilibrium has frequently not been achieved in the proceedings relating to controversial cases. It is clear that any institution that is failing to uphold universal human rights is in desperate need of radical reform, and the office of the DPP is no exception.

The Criminal Justice Review presents a unique opportunity to implement a fresh start for the criminal justice system. It is vital that the CJRG recognises the urgency of the need for the overhaul of the entire system. It is not expected that the Review Group will propose such a radical shake-up, however. There is also concern that the prosecution function will not be removed from the RUC at a time when it is undergoing a controversial process of review and reform. Nevertheless, this document has illustrated how the prosecution process is integral to both the operation of, and public confidence in, the entire criminal justice system. There is more than sufficient evidence to assert that the Office of the DPP needs to be dissolved and replaced with a new mechanism, preferably within the context of the establishment of a Department of Justice. It is therefore hoped that the Review Group can act with courage and ensure that the proposals they offer provide a framework within which this can be achieved.

It is essential for the continued transition process underway in Northern Ireland that all of the institutions at work in the criminal justice system are striving to achieve the goal of a just society. The incorporation of the ECHR into domestic law represents an additional constitutional duty that all aspects of the prosecution service are fair. The human rights culture currently evolving must be further developed to the point whereby the protection and promotion of human rights is an automatic concern of all institutions, and especially all institutions which have the power to impinge upon the fundamental human rights of individuals, for example the power to deny the right to liberty. To borrow from the Patten Commission, ‘Respect for the human rights of all … should be an instinct rather than a procedural point to be remembered.’² While this was asserted specifically in relation to the performance of their duties by the RUC, it is equally applicable to the prosecution process.

It has been argued throughout this document that ensuring the prosecution process is one that is efficient and effective, and one which also complies with international human rights standards, are not mutually exclusive goals. Rather, they are interdependent. The Human Rights Commission considers that a criminal justice system can only ‘be effective and efficient where it also ensures the protection of human rights.’³ This is particularly so in a jurisdiction like Northern Ireland that is emerging from conflict and where the criminal justice system has failed to earn the confidence of the general public.

The recent decision made by the DPP not to prosecute any of the RUC officers who made threats on the life of murdered human rights lawyer Rosemary Nelson provides stark testimony to arguments that the prosecution system that operates in Northern Ireland does not serve the interests of justice. SDLP Upper Bann MLA Brid Rogers, describing the implications of this decision, stated: ‘At the heart of all this lie the issues of justice, transparency and trust.’⁴12 The assertion made by the Irish Justice Minister in response to the Director’s prosecutorial decisions relating to the shoot-to-kill cases of the early 1980’s is particularly relevant to the decision in the Nelson case:

‘Anyone who believes that there was a conspiracy to pervert justice but that there should be no prosecutions, is unfit for public office.’⁵

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Introduction to director of public prosecutions document