Prosecutors in Gerry Adams case may have to consider public interes

Posted By: May 08, 2014

If evidence is sufficient, it would be entirely proper for deputy DPP to take into account impact of charges on peace process

Nobody should have been surprised when Gerry Adams was released without charge on Sunday night. The Police Service of Northern Ireland may think it has enough evidence against the Sinn Féin president to justify charging him in connection with the abduction and murder of Jean McConville by the IRA in 1972. But, just as in England and Wales, charging decisions in Northern Ireland are taken by prosecutors rather than police.

Under the Justice (Northern Ireland) Act 2002, the director of public prosecutions (DPP) for Northern Ireland must take over the conduct of all criminal proceedings instituted on behalf of police forces. That does not prevent the police from charging suspects themselves before sending files to the DPP. But in difficult cases it is obviously sensible for police to leave charging decisions to the Public Prosecution Service, which the DPP heads, if there is no risk that a suspect will abscond or commit offences while the evidence is being considered. As in England and Wales, prosecutors may ask the police to make further inquiries before deciding whether there is enough evidence to bring a prosecution.

How much is enough? The code for prosecutors in Northern Ireland says prosecutions are initiated or continued only if the available evidence is “sufficient to provide a reasonable prospect of conviction” and a prosecution is required in the public interest.

Note the word “reasonable”. That used to be the test in England and Wales. But when the Crown Prosecution Service was set up in 1986 it announced that it would bring cases only if there was a realistic prospect of conviction. Explaining the change to me at the time, the then DPP, Sir Thomas Hetherington, suggested that juries were not always reasonable. “There is sometimes a case in which – to put it coldly – the evidence seems good but in which realistically we feel that we would probably not get a conviction,” he said.

Why, then, has “reasonable” been retained as the test in Northern Ireland? Perhaps a clue is to be found in the Northern Ireland prosecutors’ code. It says:

The test is not whether a particular jury or a particular judge or magistrate will convict. If such a test was adopted then prosecution might depend upon an assessment of how different juries in different parts of the country reacted or different judges reacted. This would be wrong. The test must be how an impartial jury or judge is likely to conclude.
Once prosecutors have concluded that there is enough evidence, they must decide whether a prosecution is in the public interest. This time, the codes on both sides of the Irish Sea are broadly similar. But the dynamics are subtly different.

The DPP for England and Wales, Alison Saunders, operates under the superintendence of the attorney general, Dominic Grieve QC. Superintendence, a term first used in 1879, was left undefined by parliament. But Grieve made it clear in a speech last year that he would not tell the director what to do in an individual case “save very exceptionally where necessary to safeguard national security”. Before giving a direction, Grieve said, he would consult his colleagues in government – though the decision would be one for him alone.

Since the devolution of policing and justice powers to the assembly four years ago, Northern Ireland has had its own attorney general, John Larkin QC. But unlike Grieve, Larkin does not superintend the DPP. Barra McGrory QC, who was appointed to the post by Larkin in 2011, exercises his powers independently, although he must consult the attorney general in some circumstances and the two lawyers may consult each other more generally. Some powers were not devolved in 2010 and these are retained by Grieve as advocate general for Northern Ireland.

McGrory, now a barrister, previously acted as Gerry Adams’s solicitor. For this reason, the DPP made it clear that decisions in Adams’s case would be made by the deputy DPP, Pamela Atchison. A solicitor by training, Atchison has been a full-time prosecutor in Northern Ireland since 1982. By law, the deputy director “has all the powers of the director but must exercise them subject to his direction and control”. However, McGrory could presumably ensure Atchison’s independence by directing her to act entirely as she sees fit.

Adams made it clear that the police questioned him about his alleged membership of the IRA, itself an imprisonable offence. He has always denied having been an IRA member and the charge is notoriously difficult to prove. But if the police have evidence to support this allegation – or if Atchison thinks it can be obtained – she might have to consider whether it would be in the public interest to charge Adams with IRA membership. In my view, it would be entirely proper for Atchison to take account of the public interest in maintaining the peace process and the effect that charging the Sinn Féin president would have on the future of power-sharing in Northern Ireland.

Similar considerations must come into play if evidence emerges linking Adams to McConville’s abduction or murder. He has consistently denied involvement. The law may require Atchison to favour pragmatism. And she need look no further than the code under which she operates to find the famous principle expressed by Sir Hartley Shawcross, the Labour attorney general and former Nuremberg prosecutor.

“It has never been the rule in this country,” he told parliament in 1951, “that suspected criminal offences must always be the subject of a prosecution.” Prosecutors, he added, must have regard to “the effect which a prosecution, successful or unsuccessful as the case may be, would have on public morale or order”.

These are wise words. And they apply equally to those on the other side of the Troubles.