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Decisions to prosecute can’t be decided by cost

Northern Ireland’s Director of Public Prosecutions Barra McGrory QC explains why the much-criticised loyalist supergrass trial went ahead

Loyalist Jason Loughlin gives a thumbs-up signal as he walks free from court following the collapse of the UVF supergrass trial

There has been considerable public comment that the prosecution of a number of persons for a series of serious terrorist related offences, including the murder of Tommy English should not have been brought.

Such comments risk misunderstanding the differing roles of the prosecutor and the court in the criminal justice process.

The position is that the two principal witnesses went voluntarily to a police station at a time when there was no evidence against them and provided information about a murder which was consistent with information held by police.

The police subsequently carried out an extensive debriefing exercise as a result of which they concluded that both men had given truthful and reliable accounts throughout the debriefing process.

It was on this basis that the prosecution determined that the test for prosecution was met and that it was proper to place this case before the court.

Indeed, it is probable that there are those who would have characterised a decision not to prosecute in the light of witness statements alleging involvement in a reprehensible terrorist murder as the PPS being risk-averse.

Of course, it is easy to argue with the benefit of hindsight that this case should not have been prosecuted. That, however, misses the point.

In refusing a defence application to stop the case at the half-way stage of the trial the judge was satisfied that there was evidence upon which a jury could convict. In those circumstances it is difficult to argue that the prosecution should not have been brought.

Ultimately, it was for the judge to decide whether or not he was satisfied to the high standard required, namely proof beyond a reasonable doubt. In reaching his conclusion the judge had the benefit of detailed cross-examination of the witnesses conducted as part of the adversarial trial process and the opportunity to assess the demeanour of the witnesses when giving evidence.

Whilst considerable care was exercised during the debriefing process it is difficult, if not impossible, to replicate the challenges inherent in an adversarial trial.

Two further matters deserve attention. As director, I am conscious of public concern with regard to the high cost to the public purse of this prosecution. However, decisions as to prosecution, particularly in relation to serious offences such as murder, cannot properly be constrained on the grounds of cost. Undoubtedly the recently introduced revised rates of legal aid remuneration, which did not apply to this case, will provide a greater measure of control on such costs in the future.

Finally, whilst I have drawn attention to the differing roles of the prosecutor and the court in the criminal justice process, I would wish to make it clear that I am giving very careful consideration to the judgment to determine whether it has any implications as to how such cases might be approached in the future.

Barra McGrory QC is Director of Public Prosecutions for Northern Ireland

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