Acting Director of the Public Prosecution Service Jim Scholes spoke to DEBORAH McALEESE about concerns over the handling of the Thomas Devlin murder case

Q: What lessons can be learnt from this case?

A: I want to say at the outset we welcome the verdict in the Devlin case and hope it can perhaps begin to bring closure to the Devlin and McKee family, particularly the Devlin family who have suffered so much. This was a very difficult circumstantial case in which there was no forensic or eyewitness evidence. We initially took the view that there was insufficient evidence to meet the test for prosecution.

In doing so, we advised the family that they could ask for a review of that decision. The family did so and in our anxiety to ensure the review was as open, transparent and informed as possible we sought the opinion of a second Senior Counsel — in this case a Senior Counsel who practiced in England. He provided advice. The director considered that advice and considered in particular the weight he gave to particular aspects of the evidence. Having done so, he concluded that the test for prosecution was met.

Q: So no new evidence had been presented to the PPS which helped change the decision?

A: No new evidence in that sense. It was a process of review. What I want to emphasise here is this was an example of the process working in the sense that the PPS had arrangements in place that allowed for a review of decisions. It was prepared to be challenged in this and prepared to look at things afresh upon request by the Devlin family. We did so and were persuaded that the test for prosecution was met.

Q: Do you agree that the PPS got this wrong first time around?

A: I think the concept of getting it wrong is not the correct way of looking at it. We took a decision, the family asked us to review that decision. We did review it and we prosecuted and prosecution resulted in a conviction. These are difficult cases which require difficult judgements. We were persuaded that upon the review that prosecution was appropriate.

Q: Now that two people have been successfully convicted in this case, will it change how the PPS carries out its tests for prosecution in the future?

A: We continually review our processes all the time. It must be remembered our decision in relation to prosecution cases has been examined on two occasions by the Criminal Justice Inspectorate and the inspectors reported that decision making by the PPS is good and free from undue influence. It is also important to point out we deal with a high volume of cases throughout the year.

Q: Will you be carrying out a review on the back of the Devlin case?

A: We always look for lessons to be learnt. It is important to remember what has happened here is because we did review our decision. That is what led us to prosecute. We are always open to requests from victims or others who thought we made a wrong decision. The important thing is the PPS has in place arrangements which allow its decisions to be challenged and, where necessary, to be changed. One could understand the criticism of the service if the service was not prepared to review its decision or didn't have any mechanism in place which would allow people to call for a review.

Q: The Devlin family said their grief was compounded by the PPS’s initial handling of the case. Would you like to apologise to the Devlin family over the distress caused?

A: One perfectly understands the Devlin family have been through a very difficult time. Nobody could fail to be moved by what they had to say. We regret anything that has led to further distress to the Devlin family. We hope that the successful outcome of the case that we brought will prove to be some consolation to them.

Q: How big a difference is there between the test for prosecution used by the PPS and that used by the Crown Prosecution in England?

A: It would be wrong to say Northern Ireland is radically different from England and Wales. The English code test talks about a realistic prospect of conviction and we talk about a reasonable prospect of conviction. In England, I understand they look for what they say 51% (chance of conviction). There is no mathematical figure in Northern Ireland. I heard some discussion of it being 81% here but that is not true. What we say is that there must be a reasonable prospect that a jury properly directed would find the accused guilty but in terms of overall thrust of your question then, no, there isn’t a difference. We are absolutely comfortable with the test we have. It is an objective test based on reasonableness.