Belfast Telegraph

Paul McDonnell: Decision to go to court won’t have been taken lightly


Michael McKinney, John Kelly and Alana Burke at a press conference in the Guildhall yesterday
Michael McKinney, John Kelly and Alana Burke at a press conference in the Guildhall yesterday

By Paul McDonnell

The decision by the Public Prosecution Service to prosecute one soldier arising out of Bloody Sunday will have been reached after a long and arduous process.

The amount of evidence to be considered was voluminous and much of it generated by and arising out of the evidence given to the Saville Inquiry.

The PPS is a central tenet of the criminal justice system in a democratic society. It must perform its functions in an unfettered and unbiased way, free from political or other interference or pressure.

It is the role of the PPS to make an assessment as to whether it is appropriate to present charges for a criminal court to consider.

In making that assessment, the PPS must firstly be satisfied that there is available sufficient evidence to provide a realistic prospect of conviction — often called the evidential test.

In this regard, the PPS will consider, inter alia, whether the evidence can be relied on in court and whether it is reliable and credible.

It is clear from the PPS statement yesterday that it was only satisfied that there was sufficient evidence in respect of one soldier to proceed.

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Where the PPS is satisfied that there is sufficient evidence to justify a prosecution, they must then consider whether any prosecution would be in the public interest.

In this regard, prosecutors will take into account matters such as the seriousness of the offence, the level of potential culpability of the suspect, the circumstances of the incident, the effect on the community and indeed the age and maturity of the suspect at the time the offence was committed.

The PPS in this instance was clearly satisfied that it was in the public interest.

Once a decision to prosecute has been made, it is generally not possible to challenge that decision by way of judicial review on the basis that the decision to prosecute may be challenged within the trial process.

Judicial review may be available in very limited circumstances to those wishing to challenge a decision not to prosecute.

Paul McDonnell is a Belfast-based lawyer and editorial legal counsel for Independent News and Media (NI)

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