Official Report: Minutes of Evidence
Committee for Justice , meeting on Thursday, 11 June 2015
Members present for all or part of the proceedings:Mr A Ross (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr S Douglas
Mr Tom Elliott
Mr Paul Frew
Mr C Hazzard
Mr Seán Lynch
Mr Patsy McGlone
Mr A Maginness
Mr Edwin Poots
Witnesses:Ms Pamela Atchison, Public Prosecution Service
Mr Stephen Herron, Public Prosecution Service
Mr Barra McGrory QC, Public Prosecution Service
Report of the Independent Review of the Prosecution of Related Sexual Abuse and Terrorism Cases by the Public Prosecution Service: Director of Public Prosecutions
The Chairperson (Mr Ross): I welcome Barra McGrory, Pamela Atchison and Stephen Herron. You will be aware that the meeting is being recorded, and you will receive the Hansard report in due course. Mr McGrory, when you are ready, please make some opening comments, after which we will open it up to members' questions.
Mr Barra McGrory (Public Prosecution Service): Thank you very much, Mr Chairman. Perhaps, I should introduce my colleagues: Pamela Atchison is the Deputy Director of Public Prosecutions, and Stephen Herron is a senior assistant director in the Public Prosecution Service.
First, I am grateful to you and the Committee for the invitation to come and talk about some topical prosecutorial issues, not least the outworkings of the recent report of Sir Keir Starmer on what is commonly known as the Mairia Cahill case, although, of course, there were other victims involved in that case as well. It is also an opportunity for me to mention the recently published report by the Attorney General, Mr John Larkin QC, on the decision by the Public Prosecution Service in 2011 not to prosecute Gerry Adams for withholding information. We can address both matters, and Ms Atchison and Mr Herron will have something to say about them. Pamela will deal with the detail of the Attorney General's report. Mr Herron will deal with the recommendations in the Sir Keir Starmer report and the actions being taken by the Public Prosecution Service following that report.
I would like to say a few short things before we move to questions. Perhaps the most important issue that I want to raise with you is that, when I was appointed director and took up post in November 2011, I said that one of my priorities was to have a Public Prosecution Service that was open, transparent and able to confront difficulties in a spirit that would assist the public to understand what the difficulties are and lead to a more efficient and open prosecutorial service in which the public had complete confidence. Following through on that, when certain issues and difficulties were encountered, I took the action, which was not completely unprecedented but is fairly rare in the prosecutorial world, of bringing in external people to look at some specific issues.
The first report was that of the Attorney General on, for want of another phrase, the Adams decision in 2011. The circumstances were that the trial of Gerry Adams's brother, Liam Adams, had just concluded in 2013 with his conviction for sexually abusing his daughter many years before. On that occasion, there was considerable reporting of Gerry Adams's evidence in the first of two trials that, ultimately, led to the conviction. Concern was expressed by some politicians that there was something to be worried about in the Public Prosecution Service's decision not to prosecute Gerry Adams for withholding information in circumstances where he had knowledge of his brother's involvement in this matter for some years before it was disclosed to the police. I took the view, as director, that it was important and prudent to assure the general public that there was no improper conduct on the part of the Public Prosecution Service and that the best way to do this would be to bring in the Attorney General to look at the matter. There could, therefore, be no suggestion that there was any internal cover-up. That is the background. Similarly, when the Mairia Cahill case concluded unsuccessfully from a prosecutorial point of view, amid allegations by Mairia Cahill that the case had been mishandled, I took a similar course by bringing in Sir Keir Starmer.
In respect of both reports, I am pleased to note — I use that term generally — that both reviewers found that in no circumstances was there any improper conduct by any prosecutor, any attempt to influence decisions for political motives or any motives of bias whatsoever, in either case. In the Attorney General's review of the Adams decision, which was taken before I was director, the only real issue that arose in the report was that the Public Prosecution Service came to a public interest decision that he considered the correct decision: not to prosecute Mr Adams without, perhaps, fully exploring the evidential test. That, in itself, was not permitted by the code. In fact, the Attorney General suggested that the code be changed to allow the Public Prosecution Service, in special circumstances, to go to a public interest decision before bottoming out an evidential decision, in which case this would have been appropriate. The Public Prosecution Service has responded to the report by including in its proposed revised code a provision that would permit it to do so. That was really the only issue arising from the report that caused us to act. There was certainly no suggestion of any improper conduct on anybody's part. Indeed, the Attorney General agreed that it would not be in the public interest to prosecute a witness from a family who were assisting the prosecution in that case.
The Starmer report makes more difficult reading for the Public Prosecution Service, in that Sir Keir Starmer found significant shortcomings in the handling of that case. If you read the report and look at the recommendations, you see that the shortcomings can be summarised in two strands, the first of which is the case itself, which Sir Keir acknowledged was unique in being the first case to come before the courts of allegations of sex abuse in a paramilitary context. It was a case in which the accuser was accusing someone who was an acknowledged paramilitary in what was described as the punishment squad of the IRA, and there was a subsequent investigation of all of that by the IRA. Those circumstances had never been met before; it is a combination of two completely different types of case.
Where Sir Keir felt that the Public Prosecution Service fell short was that it failed to appreciate the consequences of that clash of evidence and failed to take proper measures to deal with the outworkings of that case in court, which ended in the way that it did. The way in which he felt that the prosecution service had failed was that individuals in the senior management team did not have sufficient oversight of the case to pick up on the fact that certain decisions had or had not been taken that would have consequences. He was also very critical of the way in which senior counsel, who was instructed by the PPS, addressed some of those difficult issues and of the fact that the PPS senior management team had not been sufficiently engaged with the case to pick up on the mistakes made by counsel. That is a matter of great regret to me, as director, and is something on which considerable steps have been taken. You will hear about that in detail from Mr Herron, but some of those issues had already been identified by me, as director, as issues that needed action.
One of the problems in the Cahill case, for example, was that lines of communication between those engaged at the court face — counsel and the PPS clerks — and those responsible for the senior management of the case were blurred, principally because of the splitting of the directing function from the court delivery and disclosure functions in Belfast. That was a feature of prosecutions in Belfast that I had already identified as problematic and taken steps to change. Indeed, those changes were in place before Sir Keir was called in.
Another of Sir Keir's recommendations was that clear governance structures were needed to ensure that senior management was engaged with the day-to-day running of and decision-making in cases. That said, he acknowledged that, even if they had been engaged to the level to which they should have been engaged, it may not have made any difference. Nevertheless, there were no accountability measures in place. I had already taken steps to ensure that senior managers were more closely involved in their casework decisions by bringing about specific training, but I take Sir Keir's criticisms on board, and we have now introduced further structures by implementing case strategy documents and mandatory meetings with staff.
Also criticised by Sir Keir was the communication with victims. Again, we had already taken steps in the implementation of the victim and witness care unit and stressing to counsel and lawyers involved in cases their responsibility to communicate at every step with victims. We accept, however, that there may need to be more rigid communication structures in place, and Mr Herron will outline what those will be.
Of course, a critical turning point in the case was the failure of counsel to oppose an application by the defence to reverse the order of the cases. The sex abuse case was ready to go in 2012, but it did not get off the ground because the defence successfully argued before the court that the membership case should be taken first. That was never our position in the PPS. We had brought the sex abuse case to court very quickly. In fact, the delay in court of the sex abuse case, as Sir Keir recognises, was beyond the control of the PPS. There was a mixed committal, which delayed the case by up to seven months.
This is topical because the Justice Bill sought to abolish mixed committals, which give the defence the opportunity of cross-examining victims and witnesses twice: first, at the Magistrates' Court and, secondly, at the Crown Court. Unfortunately, that proposal, which went through the Justice Committee in the current Bill, seems to have been amended to bring back the possibility — probability, in my view — of such extra examinations. As a prosecutor, I have to say that that is regrettable. We thought that we had addressed the situation, but it appears that, politically, it has run into a bit of trouble. That, however, is only one aspect of the delay. That was seven months of the sex abuse case. In the membership case, the same procedure brought a delay of 13 months. Members around the table who have supported Mr Allister's amendment might perhaps consider that, in the view of the Public Prosecution Service, it works against victims and witnesses and the speedy delivery of justice in these cases.
I will move on to some of the other problems that Sir Keir identified. Clearly, counsel's conduct at the court face was an issue. Unfortunately, I cannot say very much about that because the counsel involved have been referred to the professional conduct committee. However, it may be noted that I have accepted Sir Keir's findings on the failure to oppose the application, and the detail of those findings suggests that instructions were not taken from the PPS on that. We will see what happens in those other proceedings.
That is the general background to the two reports. For me, the good news is that these are the two biggest difficulties that we have encountered in the three and a half years that I have been director. I have sought to be open and transparent about them, to respond to the concerns of political figures that there should be complete confidence in the administration of justice and accordingly that, when such difficulties arise, they should be met with openness and action taken. I believe, as Director of Public Prosecutions, that, ironically, confidence in the administration of justice ought to be enhanced by the reports rather than damaged because the public can feel comfortable that, when situations like this arise, they are addressed. In so far as the individuals in the Cahill case are concerned, I have met Mairia Cahill personally. The other individuals have been unable to meet me so far, but I have expressed my regret to Mairia that this has occurred. I told her that we will take action and that I sincerely hope that it will never happen again. I do not think that I have too much more to say.
Would you like to hear from Ms Atchison on the detail of the Attorney General's report?
The Chairperson (Mr Ross): I suspect that members will want to go into the detail in questioning, so it might be better to leave that until then rather than going through it now, if that is OK. Are there any general points that you want to make?
Mr Stephen Herron (Public Prosecution Service): If you would indulge me, Chair, I was going to take a few minutes to go through the recommendations and the work that is already under way. Thank you for the opportunity to talk through our implementation plans in relation to the Starmer review. I acted as review coordinator for Sir Keir and Katherine O'Byrne, making sure that they had everything needed to conduct the review, and I am the person whom the director has tasked to take forward the implementation of the 10 recommendations. There are really nine recommendations — the tenth is just to ensure that some action is taken.
Members will know that, as part of the terms of reference of the review, the director requested not only that all aspects of the cases be examined but that Sir Keir identify any recommendations to improve the service of the PPS, and that was very much a focus of his review. He set out a number of key areas, which were, broadly, policy development; training; and clarity on roles and responsibilities, including that of counsel instructed by the prosecution. He indicated a time frame of between six and 12 months for a review of the implementation. As the director said, we accepted the recommendations in full, and the director made that known publicly when we launched the report on 22 May. As the director highlighted, and Sir Keir acknowledged, because we already knew about some of the issues and areas for improvement, a number of key changes are already well under way.
The review recommendations are towards the end of the report. I will take a few minutes to go through all 10. The first was:
"The PPS should introduce policy and/or guidance to improve case planning and strategic thinking in difficult and complicated cases."
We have already developed a new policy on case management for difficult and complex cases, and it employs a number of case management mechanisms. Members might want to hear a few of them. There will be monthly casework meetings between those whom we regard as senior managers in the PPS — regional prosecutors and assistant directors. Part of that will be the production and maintenance of regional or sectional casework risk registers. We will identify the cases where there are specific risks, and we will ask what those risks are and what we can do to mitigate them. Part of that is an approach to case management that tries to anticipate what the defence will raise. It is not always possible to do that in advance, so, obviously, this document will have to be a living document revised by counsel and prosecutors throughout proceedings. A prosecution strategy document will complement the casework risk register, just to make sure that everything is perfectly documented. There will also be a mechanism for the moderation of risk and the escalation of cases that need it to the senior management team, which is the director, the deputy and me.
The second recommendation was exactly that:
"A flagging system for difficult and complicated cases should be introduced to highlight risks and ensure proper lines of accountability to senior management, including the Deputy Director and Director where necessary."
Sir Keir's report referred to the Crown Prosecution Service having a case management panel, and, really, that is what he is asking us to replicate in some form in this jurisdiction. That is also well advanced and sits with the overall policy approach to case management.
"When deviating from usual management structures, senior team members should take the lead in defining roles clearly."
As the director pointed out, that was a unique feature of the case. One of the reasons for that was that a number of different individuals held senior manager posts throughout the lifetime of the three cases. The risk register and case strategy document will clearly identify the risk owner: who has responsibility for it. The default position is that the relevant regional prosecutor or assistant director is responsible for the case. If that changes for any reason, it will be their responsibility to update these documents to reflect that. They should also formally hand over responsibility for the case in writing to whoever will be responsible from that point on. That addresses one of Sir Keir's concerns that, although managers were engaged, it was probably not in the way that they should have been, and there was certainly no record of what dealings they had in cases.
"The PPS should introduce standard clauses in all instructions to prosecuting counsel making clear what is expected of them, what responsibilities they have and their role in decision-making."
We have updated the standard clauses in our instructions to counsel, which include requirements in relation to the identification of strategic issues in the case that are significant, where they need to take instructions from prosecution and improved arrangements for consultation with victims and witnesses. That is now in place and has been forwarded to the Bar Council for its approval.
I want to draw members' attention to two particular issues. One of the terms of engagement is that counsel should discuss any "significant strategic decisions" concerning conduct of the prosecution with the directing officer prior to finalising any decision and communicating the same to the defence and/or the court, and that counsel should not agree to the listing of cases or removal of cases from the listed trial date without prior approval of the directing officer, or, in their absence, the relevant assistant director or regional prosecutor. Where the listing of a case is likely to have a significant impact for a victim or witness, consultation with the party concerned should take place before the listing hearing. That is, I think, very important.
"Measures should be introduced to improve the recording of decisions and consultations by the PPS and counsel."
That is now complete. We introduced that in May 2014, and it forms part of the new policy arrangements that I referred to.
"The PPS victims and witnesses policy should be reviewed in light of this report, in particular with a view to improving communications and consultations with victims on major decisions."
Members may know that a review of the victims and witnesses policy is already under way. It is intended that, when the revised policy is finalised, it will be publicly consulted on in the autumn. At this point, I stress that the PPS, in conjunction with other agencies, is already progressing a number of key improvements in the treatment of victims and witnesses. The director referred to the establishment of the victim and witness care unit. It was established and rolled out in 2014. It is an enhanced service to victims and witnesses. It is one centre but split over two sites in Belfast and Foyle. There are approximately 50 staff involved: PPS case officers and a mix of PSNI-provided personnel. In each office, in Belfast and Foyle, there is also a representative of Victim Support. The idea is to have a much more joined-up approach to the needs of victims and witnesses. One of the key features is that a single caseworker will be appointed as a single point of contact for information about the case, and a victim or witness will be given an individual needs assessment tailored to their particular needs.
Members will be aware of the victims' charter in the Justice Bill. That has been operating on an administrative basis since the beginning of the year. All PPS staff have been informed of its provisions, and the victim and witness care unit staff in particular have received one-to-one training on how it will operate. All staff have been given clear instructions to comply with the charter, notwithstanding that it does not yet have legislative force.
"Once the PPS victims and witnesses policy has been reviewed as recommended above, all staff should be required to undergo training on the requirements of the reviewed policy."
I assure members that that will be delivered when the policy has been reviewed.
"All PPS staff and counsel working on rape and serious sexual abuse cases should be required to undergo training on the PPS policy for prosecuting cases of rape."
That was introduced in 2010, and a significant training programme has already been completed. That will be kept under review, however. Training was provided to relevant staff and counsel when the policy for prosecuting cases of rape was launched, but, because there have been significant developments since then, further training has been provided to staff over the last five years, and that is ongoing.
Recommendation 9 is that all PPS staff and prosecution counsel should be reminded of the continuing obligation to keep the prospects of conviction under review, particularly when there are significant developments in the case. The revised PPS code for prosecutors is currently being consulted on. It went out to consultation last month and will conclude in August. It highlights the obligation to keep the test for prosecution under review. It is intended that staff will receive refresher training on the provisions in the code when it has gone through the consultation process.
The final recommendation is that, between six and 12 months from the date of this report, the DPP should commission a review of the implementation of the recommendations. The director has very clearly said that he is committed to doing that. I, for one, am confident that we will achieve all the recommendations in the specified period of six to 12 months.
Unless there is anything further, I will hand back to the director.
Mr McGrory: Was there something that you wanted to say, Pamela, about the Adams report?
Ms Pamela Atchison (Public Prosecution Service): I do not know whether you want me to address it, Mr Chairman.
The Chairperson (Mr Ross): I think that we will maybe move to questions, because I suspect that it will be covered in quite a bit of detail over the next while, if that is OK. Before I open it up to other members who might go into the detail of the two reports, I listened to you saying that the coverage over the last while should enhance public confidence, but given that we have had the Starmer report, the Attorney General's report and a fairly high-profile court case that has fallen apart and in which the witnesses were critical of the PPS, is it not the case that it has been a very bad few weeks for the Public Prosecution Service and public confidence has been damaged?
Mr McGrory: I noticed that your public statement, Mr Chairman, said that the Attorney General's report was deeply damaging, but I have to take issue with you on that. There is nothing damaging for the Public Prosecution Service in the Attorney General's report. In fact, the Attorney General's report on the decision concerning Gerry Adams before I became director endorses the decision of the previous acting director. The only issue that the Attorney General raised was that, strictly speaking, within the code, the evidential test should have been applied first but, even if the evidence had been stronger, there still should not have been a prosecution under public interest. So there is nothing damaging about it. In fact, as I have said before, public confidence ought to be satisfied that there was nothing awry in respect of that decision.
Before I go to the Starmer report, you mentioned another case. Once again, the other case concerned allegations of IRA membership in the context of events after the murder of Robert McCartney. The witnesses withdrew from the case, but their withdrawal statements make no criticism of the PPS, although one witness made comments that were critical. My difficulty with that case is that, because of anonymity orders placed on identifying the witnesses, I am unable to say too much more about that case. The more detail I gave about that case, the more at risk I would be of breaching the anonymity orders. All I can say to you about that case is that I am afraid that the PPS does not accept that there was anything that it could have done that it did not do in the prosecution of that case. A complaint was brought some years after the events. The PPS is satisfied that the appropriate charges were brought against the appropriate individuals. It is with regret that the witnesses, after the murder of an individual, felt that, in their point of view, there was no need to go ahead with the case. One of the withdrawal statements makes it very clear that the murder of Jock Davison was an influential factor in the witness no longer having an appetite to proceed. There were other reasons for that case collapsing that were outside the control of the PPS. I am afraid that I will not accept that there was any wrongdoing on our part in the context of that case.
I come to you today saying that the only case in which I accept that the PPS went wrong was the Cahill case. I accept fully the findings of Sir Keir Starmer, and I accept that changes have to be made. Changes were made, and further changes are about to be made.
The Chairperson (Mr Ross): The key findings of the Starmer report were that there was insufficient case planning; failure by senior PPS staff; delay in taking decisions to prosecute in membership cases; delay in sexual abuse prosecution and, therefore, cases became weaker because of the delays and witnesses pulled out; leads were not pursued; and there was failure to communicate with victims and witnesses. I listened to Mr Herron go through the detail of the 10 recommendations and how you have gone about addressing them. However, who is taking overall responsibility for those failings?
Mr McGrory: I have taken responsibility as director; I have made that clear publicly. I apologised to Mairia Cahill both personally and publicly. I apologised to the other witnesses. It is my responsibility as director to put in place measures that ensure that such events cannot recur.
As I outlined, I had already addressed some of the issues that led to the problems in the Cahill case before I knew about them in the context of the Cahill case. The Cahill case had been in the office for a year and a bit before I became director. The issues that led to the ultimate collapse of the case were already well developed by the time I became director, but I have acted quickly to identify some of the procedural issues highlighted in the Keir Starmer report that concern the events of that time. I am also more than happy to take on board Sir Keir's comments and look at ways to make even further changes. I have identified those changes, which are now being made to copper-fasten the changes that were already made.
In answer to your question, I am taking responsibility and making sure that the correct steps are taken.
The Chairperson (Mr Ross): The report is quite critical of senior staff. It outlines confusion over roles and responsibilities. It points out a senior prosecutor saying that he took the decision not to be included in the case due to the size of the file. Are those senior members of staff still in place?
Mr McGrory: Most are not. I need to be careful what I say here, because people can be identified by some individuals in the report and that might not be fair. Let me put it this way: I held a senior management review in 2013 that led to significant senior management changes, so most of the individuals are no longer in the place they were when those events happened.
So far as that particular reference is concerned, I decided that the current regional structure of the PPS, which places responsibility on regional managers for all cases of all types within their regions, should be reviewed. It is currently under review, but I am publicly committed to establishing a second serious casework strand within central functions. I think the problem with that senior manager at the time was that, first, he misunderstood that somebody else was looking after the case. Secondly, the split functions, which meant that the delivery of cases at the court-facing stage were dealt with by a separate unit, meant that he would not have had direct responsibility for it at that stage. I have done two things about that. First of all, I have removed that obstacle. I have repatriated what we called that Crown room function into the regional office so that those responsible for directing on a case remain responsible for the delivery of it in court. As a result, that area of confusion referred to by Sir Keir has been removed — and was removed before the Cahill case went wrong and before Sir Keir came in.
The other thing I am doing is that we have what we call a central casework function that deals with terrorist and major crime cases, where there is a much smaller number of bigger cases. The assistant director and his lawyers in that unit are not burdened with line management or administrative duties, so they can concentrate on those cases. I am replicating that system with a parallel senior casework strand into which cases like Mairia Cahill will go, so that we never again have a situation where an assistant director has so much on his plate that he does not feel he can get involved in the detail of an individual case. I sincerely hope that those concerns have been met.
The Chairperson (Mr Ross): I note that in your opening comments you said that there was no improper conduct among members of staff, but I think a level of incompetence has been evidenced in the report. Were any sanctions or disciplinary action taken against any of the members of staff who are still in the organisation for their failings?
Mr McGrory: Not so far. One has retired, and two others are in the organisation. I did not consider that the report raised issues of indiscipline. I have spoken to my corporate services director about this and about whether the comments that were made by Sir Keir Starmer fit the description of conduct that would require disciplinary proceedings. I have been advised that they did not. That is not to say that I do not take them very seriously or that I do not consider that action needs to be taken: I do.
The Chairperson (Mr Ross): I want to turn to the Attorney General's report. I noted what you said about trying to be open and transparent. Why was there a delay in publishing this report, not least to the Committee, which was assured that we would get it two Tuesdays ago? There was a further delay of a week.
Mr McGrory: That is a personal issue. I had a bereavement in the family, which set my timetable back by 10 days. That report was due to be issued on a certain date, but I was out of the office and it could not be issued. I do not want to go into the details of that, but that is the reason for it.
We had a very good prosecutorial reason for the overall two-year delay, and that was our absolute priority as prosecutors in the maintenance of the conviction of Liam Adams for the sexual abuse of his daughter. Within the office, Pamela had carriage of the case, and we considered that it would not be appropriate to publish the case pending the conclusion of all legal proceedings. Those proceedings did not conclude until a few weeks ago.
The Chairperson (Mr Ross): In that specific case you obviously recused yourself because of your previous job, and rightly so; that was highlighted in the report. How many times have you had to recuse yourself from cases since you became director?
Mr McGrory: In total, over three and a half years, I think it is six. In 2011, there were two; in 2012, there were three; there were none in 2013, one in 2014 and none in 2015. I would like to put that in context, because there has been some comment about this in the media. We receive in the region of 40,000 cases a year. As director, I have personal responsibility for issuing certificates in non-jury cases — for example, previously, Attorney General's consents in respect of certain offences. I have issued 25 non-jury certificates — 23 a year on average.
We deal with around 2,500 indictable cases a year, and I personally become involved in a considerable number in an advisory capacity as director. It runs into the hundreds; I do not keep a precise record of every piece of advice that I am asked for on a case. The way it works is that senior staff ask me to look at a case, and it is very rare for me to have to say that I cannot do so. In total, there have been six such occasions over the past three and a half years. It is not a large number of cases.
This is not unique to Northern Ireland. My opposite number in England, Alison Saunders, is recused from some very big cases such as the Hillsborough disaster case, for example. She was involved in that case when she was an official in the Attorney General's office. She was recused from the Charlie and Rebekah Brooks case. Keir Starmer had to recuse himself from a number of cases because of private practice involving quite a number of Islamic terrorist cases. When you have a system that brings in as director somebody from private practice who, in my opinion, brings with him or her a richness and diversity of experience that is to the benefit of the public as a prosecutor, there will be occasions when conflicts of interest might arise. In the broad scheme of things, I have had to recuse myself from relatively few cases. That puts that in context.
The Chairperson (Mr Ross): The difficulty in the high-profile cases is that it is a public perception issue. As politicians, we are all too aware of that. If there is a public perception that, because of your previous role, there is a conflict of interest, it may be more difficult for you to restore public confidence in the organisation or your own ability.
Mr McGrory: I have to say that I think that politicians, too, have a responsibility not to play politics with some of these issues. In the legal context, I do not think that this is that big an issue. However, if politicians make it an issue, some of the public may think that there is something behind it. I sometimes wonder about the motives of some of the people — certainly some of the journalists in the press — who comment on this as an issue. Really, the fact is that, because I have been so transparent and open about everything and have openly recused myself from any case in which I have felt that there is a hint of a conflict, the public should have confidence in the way in which I go about my business as director.
"the DPP could have been called as a witness for the defence or, if the DPP's account did support the account given by Gerry Adams, the DPP could be called as a rebuttal witness by the prosecution".
Would it not have been quite an extraordinary event if you had appeared in the dock as part of the case?
Mr McGrory: That was such a remote possibility that I really do not think that it is an issue. The fact is that the way that we dealt with that case was that I was asked by counsel to make a statement in order that all the information would be available to the court. I wrote to my former client, who waived his professional legal privilege in order to facilitate that. I did so, the court and the defence were provided with all the available information, and they did not call me. I was of no value to them, and the situation did not develop in the way that, hypothetically, it might have done. We dealt with that very properly.
"I am of the opinion that there was sufficient evidence that Gerry Adams was aware of the nature of the abuse to merit a request being made by the PPS for further police investigation or clarification."
At paragraph 7.6, he goes on to say:
"it seems to me unlikely that a decision in respect of the evidential sub-test could have been made in advance of Gerry Adams being interviewed under caution by police. In short, while the PPS may have been correct in asserting that the evidential test for prosecution was not met on the basis of the evidence on the police file, there was certainly sufficient evidence to suggest that the evidential test might well ultimately be met and that any doubt as to whether the test was or was not met could have been resolved, in particular, by taking clarificatory statements from Áine Dahlstrom and Sarah Campbell and, if necessary by asking the police to interview Gerry Adams under caution."
He said that the decision was premature. Is that something that you accept in the Attorney General's report?
Mr McGrory: Only in so far as the code was drafted at the time. The code required the prosecutor to take the evidential test and apply it fully before going to the public interest test. The Attorney General is saying, "Technically, that was not done, but, even had it been done and the evidence been clear that Mr Adams knew more than he said he knew, you still would not have been prosecuting him". In my view, that is a technical issue. However, we have resolved that now by proposing that the code be changed to permit the prosecutor to go straight to the public interest test as, elsewhere in the report, the Attorney General suggests would have been appropriate. He is really only pointing out that, "If you had followed your own procedures at the time, you would have done this, but, in any event, had you done it, the outcome would not have been different". As it happens, that has been done by Ms Atchison since, and Ms Dahlstrom made it clear that she did not want the matter taken any further and would not have done. It is not something that I need to be terribly worried about, as director.
Ms Atchison: The review recognises that the Gerry Adams aspect was incidental to the main investigation, which was into Liam Adams. That was the real focus of the police investigation, and this was a matter that had to be dealt with to enable Gerry Adams to fulfil a more important role, which was to be a witness in support of Áine.
Mr Douglas: Chair, I agree with you that the public have lost confidence in the office. It is a bit patronising to say that politicians direct people on how to think. The public can think for themselves.
Can I share with you my one and only experience in terms of prosecution in the public interest, which happened recently? I would be obliged if you would keep me right, because I do not want to get into deep waters. The case had been with the PPS, but it is now away from it, so hopefully I can speak about it. It involved a constituent of mine who came to see me about her father, who is a former constituent of mine. He is an elderly man and is quite ill. I contacted your office on numerous occasions to request a meeting with you about the case. I did that on the advice of two barristers who said, "Look, have an informal meeting with the PPS".
I was advised to send an email outlining my request, which I did on 24 March. Despite not getting any response, I rang the office a number of times, and I eventually got an email to say that a letter was going to come out to me on 23 April, which was nearly a month later. This is an urgent case involving a man who is very ill. It was my first experience with the PPS, and all I was looking for was a bit of advice about whether to go down a particular route. As a public representative, I feel I have been treated with contempt. You mentioned the public, but how are the public expected to respond to your office if public representatives are treated with this contempt? Why was I treated with such contempt? There are certainly perceptions that I was treated with contempt because of a range of issues that I do not want to go into. It feels sad to say this, but my first experience has led me to have little confidence in the office.
Mr McGrory: Mr Douglas, "contempt" is a very strong word. You have confronted me with a situation without giving me any notice, so —
Mr Douglas: You would be aware of the case I am talking about, I am sure.
Mr McGrory: Well, I am not. How can I be?
Mr Douglas: I assume Mr Murphy contacted you — at least, that is what I was told — about this high-profile case. It is certainly not one of the 200; it is a very high-profile case.
Mr McGrory: Mr Douglas, I deal with hundreds of cases in a week. Mr Murphy puts an awful lot of material in front of me. I do not know what it is that you are talking about, but —
Mr Douglas: I can certainly mention the case, because it is now out of your office.
Mr McGrory: I will deal with it privately.
The Chairperson (Mr Ross): To be fair, we will stick to the issue we are here to discuss. You raised a point about public confidence, and perhaps that could be followed up after the meeting if appropriate.
Mr Douglas: I would like to come and see you and have a chat with you.
Mr McGrory: I tell you what, Mr Douglas, I have met many, many political figures about cases. I have met some of your colleagues. I have met members from every party in this room in my office to discuss cases. I have an open-door policy in that regard where I can assist public representatives and people from all walks of life. There is no difficulty about that whatever. I am afraid that I cannot answer you on the specific correspondence you are talking about.
The Chairperson (Mr Ross): On the general point, do you have mechanisms in place to ensure that you respond to public representatives or to requests within a certain period of time?
Mr McGrory: I will deal with that as soon as I can, but I can tell you that we spend a lot of time — I do personally — responding to people. However, in terms of public confidence, we successfully prosecute 85% of our cases. We undergo criminal justice inspections regularly. We have a very high approval rating from Criminal Justice Inspection. We are successful in thousands and thousands and thousands of cases. I have a sheaf of testimonials from victims and witnesses in cases attributing to members of my staff the greatest of courtesy and efficiency in the outcome of cases. I could read one of them out to you — it is quite moving — but I will not. To say that there is not public confidence in the Public Prosecution Service is a sweeping and inaccurate statement, Mr Douglas.
The Chairperson (Mr Ross): I am not sure that I picked up an answer to the question. Are there mechanisms in place in the office whereby you have to respond to requests from public representatives within a period of time?
Mr McGrory: I have a principal private secretary who is pretty much on the ball in coming to me with requests from public representatives. If this one has slipped through the net, I apologise, but I need to investigate it first.
Mr Douglas: It should never have slipped through the net. When I speak to you, you will know right well that it should not have slipped through the net. You also mentioned politicians. You raised the issue of public perception, and I am just regurgitating the words that you said.
Mr McGrory: I do not accept that the public do not have confidence in the PPS.
Mr Douglas: I am not saying that the public have a total lack of confidence. In some of these situations, there is a lack of confidence, without a shadow of doubt. In this high-profile case that I am talking about, there certainly is a lack of confidence.
Mr A Maginness: Thank you, director, for coming, along with your colleagues. I welcome the fact that you referred what we term the Adams case to the Attorney General, and I accept his report. It seems to me to give a clean bill of health in relation to the way that the matter was dealt with.
I also commend you for commissioning Mr Starmer and his colleague to investigate the Mairia Cahill case. I do not share my colleague's view that there is a lack of confidence in the DPP or the office of public prosecution, but I do think that there has been a serious and damaging criticism in the Starmer report, which I think is highly regrettable. It seems to me that it is also a unique case in so far as you had a mixture of allegations and, subsequently, charges in relation to paramilitary membership and sexual offences. That is what marks out the Cahill case. Central to it and, I think, the decisive factor in the Mairia Cahill case was the decision by the court to reverse the cases, by which I mean putting the membership cases before the sexual offences cases. That was central to the problems that arose in relation to prosecution.
Mr McGrory: That was not a PPS decision.
Mr A Maginness: Let me come to the point. If one reads the Keir Starmer report, one sees that it is a pretty devastating critique of the way that that aspect of the case was dealt with.
I understand the point you make about delay and so forth, and you have referred to committal proceedings. I do not want to get into an argy-bargy about that; we all have different points of view on that. The timeline is very well rehearsed in paragraphs 2.17 to 2.23. It is very clear from reading those that a decision to prosecute was made in December 2010. The sexual abuse case was returned for trial in the Crown Court in July 2011. Morris was arraigned in September 2011. It was listed for trial three times during the following year. That would have been 2012, as I understand it. Starmer says that the case was trial-ready during that period, but no trial took place during the course of that year.
Mr McGrory: That was not our fault.
Mr A Maginness: Let me ask you this question, then, because it is material to examining this issue: if the case was trial-ready, which, I think, is accepted —
Mr A Maginness: — why was the trial not conducted during the period from September 2011 right through to 2012? That is period of not just a year but a year and three or four months.
Mr McGrory: I understand that the first date issued by the court as a trial date did not suit Mairia. She had other arrangements and could not make the date. The second date was taken out of a list by the court with no explanation to the PPS or anybody else. I think it is well recognised that the lists in Belfast Crown Court were under serious pressure at that time. Significant work has been done to alleviate that situation. The third date was the October date, which is the date on which the defence came in and —
Mr McGrory: — applied to reverse the order of the cases.
Mr A Maginness: Can we deal with that? There was an indication by email by leading counsel, as I understand it, that he was sympathetic to the reversal of the cases. That was sent —
Mr McGrory: He should not have been, because we were not. I do not want to play that out in this forum.
Mr A Maginness: I understand the point you are making, director, but the point I am making is this: there was an indication from senior counsel that he was sympathetic to the membership case being taken before the sexual abuse case.
Mr A Maginness: If the DPP was unsympathetic and opposed to that, were instructions or directions given to senior counsel to oppose the application?
Mr McGrory: Senior counsel had a conversation with a senior member of my staff in which he indicated that he felt that there was some merit in the point, that he would consider it over a period of time and that he would come back to the PPS about the matter. He did not come back to the PPS about the matter, but he sent junior counsel into court, at which point that was, effectively, conceded without returning to the PPS or obtaining obstruction. That is an issue about which I am personally very concerned, as director, and it is the subject of professional conduct proceedings before the Bar Council.
Mr McGrory: I should say no more about it.
Mr McGrory: It is, but there is an issue of potential misconduct on the part of counsel, Mr Maginness, that we should not play out in this forum.
Mr A Maginness: It really ties one's hands behind one's back in relation to dealing with the case.
Mr A Maginness: I want to make one further point in relation to this. Paragraph 5.105 from Starmer — I find this very difficult to understand — states:
"Moreover, both Leading and Junior Counsel knew that a decision to reverse the order of the trials would not only introduce considerable further delay in the sexual abuse case" —
Mr McGrory: Yes, I have got it. Thank you.
"would not only introduce considerable further delay in the sexual abuse case but would also be likely to 'put in jeopardy' whether AA and BB would give evidence in the abuse case. Leading Counsel had repeatedly recognised the fact that having all three complainants together in the sexual abuse case was a key strength. The prospect that AA and BB would withdraw their complaints introduced a serious risk to the prospects of a conviction in the sexual abuse case."
I do not understand how, if that was the view of counsel, a concession could be made in relation to the reversal of the cases.
Mr McGrory: Nor I do, Mr Maginness. That is what is at the heart of the professional conduct proceedings.
Mr A Maginness: Fair enough. It is a fundamental issue. This is the central issue in this case, and the fact that it was dealt with, in my view, in the wrong way — I will put it as neutrally as I can — made the prosecution of the sexual abuse case nigh on impossible because there was considerable further delay in the membership case and gradually the complainants lost confidence and were frustrated. Two of them withdrew their evidence and, eventually, Mairia Cahill withdrew her evidence. That unnecessary delay was devastating, I think, in relation to the prosecution.
Mr McGrory: It was. Sir Keir has made that very clear, and I am deeply concerned that counsel made a concession in court without instructions from the PPS. As director, I must live with that, and I have taken public responsibility for it, but it has yet to be played out in terms of the professional conduct issues arising. That is one reason why I have insisted that it be written into the contracts with counsel on their terms of engagement that no such concessions can be made and that instructions must be taken on all key issues in cases. One would have thought that, in this case, that would have been so anyway, particularly as the counsel concerned indicated, according to the evidence, that he would come back to the PPS with his concluded view. He did not do so.
Mr A Maginness: Could I make one further point? When the PPS realised that a decision had been made to reverse the cases, did the PPS ask the court to reverse the decision again on reflection, or was that considered by the PPS? That is an important aspect of the case. It does not seem that it is referred to in Starmer. If it has been, I have not seen it. One would have thought that, given the serious nature of the decision by the court to reverse the cases, the PPS should have rethought the position, reflected, or asked the court to re-examine the decision that had been made?
Mr McGrory: Stephen will deal with that. There was a meeting, and skeleton arguments were prepared.
Mr Herron: There was a meeting between the senior assistant director and the two complainants, referred to as AA and BB in this case, at the time. That would have been after; I think that it was around November 2012. A skeleton argument was lodged by the prosecution early in 2013 to attempt to reverse the sequencing and go back to the courts and get that reversed. Unfortunately, at that stage, because we had already, in effect, conceded the point at the earlier hearing in October, that did not bear fruit and, as we know, there was no reversal of the case, but we did lodge that argument in early 2013.
Mr A Maginness: So, the court was aware of the PPS's position in relation to that and that, on reflection, the PPS wanted the decision to be reviewed and reversed.
Mr Herron: In fairness to the two counsel concerned, whom I have worked with for a number of years in a number of cases, the report has shown that everybody engaged in the case, all staff and counsel, showed concern to fulfil their professional commitments. Regrettably, we did not seize the opportunity in its fullest in October to put out, as Sir Keir has very clearly stated, that there were very good reasons why the sexual abuse case should remain the first case. I think the opportunity was missed at that stage. That is the big regret in this case. At that stage, we did not argue that we had a number of victims who were making it known that they may walk away — withdraw — from the case because they could not wait for the other case to go first.
Mr A Maginness: But they were not even consulted before this decision was made. There was no consultation between counsel or the PPS and these three witnesses.
Mr Herron: Absolutely, and because Sir Keir has acknowledged that there was a lot of communication with the complainants in this case, that is a particular regret. It is also why, as the director has referred to, one of the specifics in the terms of engagement with counsel is that, before any listing decision, there has to be consultation with the victim or witness to take on board their views, and to relay those to the court.
Mr A Maginness: OK. I have one final point, Chair, with your indulgence. Finding 3 of the Starmer report states:
"There was insufficient case planning in these cases. This was partly due to an organisational shortcoming in relation to policy and guidance and partly due to a lack of strategic thinking and management by the prosecution team.".
In a way, Sir Keir Starmer put his finger on it in that phrase, because, if there had been strategic thinking in relation to these cases — he is referring to the sexual abuse case and the membership case — such a decision would have been seen as being completely wrong, and it would not have been contemplated by anybody involved.
Mr McGrory: I agree. What went wrong is that senior management individuals were not involved in the development of the strategic thinking. The directing officer took advice from counsel. Sir Keir has criticised the advice as being unclear and unfocused, yet that was not reviewed at a senior level and pointed out as being such. Had it been, somebody would have realised that this case was not getting the attention it deserved, or that it was going down the wrong the path, which is essentially what happened. The case went down the wrong path and the mechanisms were not in place. First, had the measures that I put in place after I became director, been in place, this would have been prevented from happening, and, secondly, the further measures which are now being implemented — the belt-and-braces approach — will, I hope, ensure that this can never happen again.
Mr A Maginness: I accept that, and I think it is right and proper. I have one further point, please. Paragraph 2.22 deals with the membership case against Morris, and Mairia Cahill seeing the witness coming out of the lift at court. The leading counsel was informed that that witness was in attendance and intended to testify for the defence. On that basis, leading counsel advised Mairia Cahill that the case no longer had reasonable prospects of success, and Mairia Cahill withdrew her evidence. The prosecution offered no evidence, and Mairia Cahill subsequently withdrew her evidence in the other two cases. She was advised that her case no longer had reasonable prospects of success. I fail to understand how that advice would have been given. I do not understand why that advice would have been offered to the complainant. I have tried to understand it, but I cannot. Maybe I am missing something.
Ms Atchison: At that stage, because the membership case was going first, and because there had been delays, a number of witnesses — maybe other family members — who would have supported Mairia decided not to go ahead, leaving her as probably the main witness in the membership case. The individual named in paragraph 2.22 was going to be called as a defence witness to allege, or say, that the meeting that Mairia said took place between her and Morris did not take place. I do not know if it was in the form of advice to Mairia, but what counsel said was that now it was really her word against that of these two witnesses who were going to say that the meeting did not take place. It was on that basis, I think, that she probably felt at that stage —
Mr A Maginness: I understand why counsel might say that it could weaken the prosecution case. To say that the case no longer had reasonable prospects of success — that is what I cannot understand. Maybe you are not in a position to give an answer. That certainly was the summary Keir Starmer put forward in his report.
Ms Atchison: He was probably trying to quote the wording of the test, which is that there is:
"no longer a reasonable prospect of conviction".
Obviously, that would have to be reviewed at any stage where is a change in the evidence.
Mr A Maginness: I do not understand that. Yes, a witness is called to say that these meetings did not take place. That does not necessarily mean that the judge or the jury — sorry, it was a non-jury court — would accept that as truthful or accurate evidence.
Ms Atchison: I suppose it was his assessment of what was left of the evidence at that stage.
Mr McCartney: Thank you very much for your presentation. Barra, in response to Alban Maginness, you stated that this should not happen again. It is very bold and forthright to assert that the procedures are robust enough to ensure that this type of —
Mr McGrory: My organisation is made up of 500-plus people, and I am responsible for everybody's actions. I hope that we have put in place a suite of measures that will ensure this never happens again. You can never account for human error, but I am sincerely hopeful.
Mr McCartney: You have talked about how it is being addressed, but the strength of the report will give victims and all those involved in this type of proceeding the assurance that the process is forthright and will come to the right outcome.
Mr McGrory: I am laying bare the mistakes of the organisation in this case and what we have done to ensure that they cannot happen again. I hope people are reassured by that.
Mr McCartney: Stephen went through the recommendations. Sometimes we get reports like this in this work. We get findings, and then we get recommendations, but sometimes what is missing — in my opinion it is missing from this, or it does not stand out — is who should have detected the failings and when.
Mr McGrory: There is no doubt that senior managers in the PPS should have spotted when and where this case had taken a wrong turn. They did not. Sir Keir Starmer highlighted that there ought to have been in place clear governance procedures to ensure oversight of cases at that level. They were not in place. That is what I have sought to rectify. There was a drift in the PPS towards administrative management on the part of senior lawyers and away from specific case management, creating the circumstances in which this could occur.
It is my job now, this having been laid bare, to make sure that we rectify those gaps in the governance structures in terms of case management, and I think that we have done that. I would not disagree with your analysis, Mr McCartney.
Mr McCartney: You described this case in your opening comments as unique and complex, and that is very obvious when you read it. Has any of what has happened in relation to the Keir Starmer report led you to go back and review any other previous prosecution investigation processes?
Mr McGrory: I do not think so. You would not know where to start or finish. We do so many thousands of cases a year. Certainly, we are looking at all ongoing cases in the light of these findings.
Mr Herron: There is, Mr McCartney, in our code for prosecutors, the right for someone to request a review of a decision. We have always had that, and it is going to be in our review as well. So it has always been the case that, where we have taken the decision not to prosecute a case, the victim is entitled to ask for reasons, or, if they are not happy with the decision, they can ask for a review of it, and that will be done by a more senior individual or, if new evidence comes to light, by the individual who took the original prosecution decision.
Mr McCartney: That is what makes me ask the question. I am sure that it is common among many of us who represent people that we have gone to the prosecution service in the past and asked it to have a look at a case which it did not proceed with, or perhaps did not proceed with in the way that a victim wanted. That is why I ask the question. There are things such as a lack of strategic thinking and having barely an audit trail. So there may be people out there today who believe that their case was not proceeded with in the way that it should have been. They might be asking, "Where do I fit into this? Is there going to be a review of that case? Will there be some rethink, perhaps, of a previous prosecution that was not taken?" Perhaps the nature of the charge could have been different, or should have been, from their point of view. Will there be any review of such cases?
Mr Herron: There were unique circumstances to this case at the time. There was a sexual abuse case set against a paramilitary context. Usually, you would have paramilitary charges on their own or, if there are other charges, they are to do with firearms offences or something like that. To have the two of those cases together presented particular strategic issues, which, we have to admit, we did not get right from the start of the case. We never really caught up from that. I am fairly confident that, for that unique set of circumstances, we now have procedures in place to flag up what the issues are and get early engagement with police and counsel to try to anticipate where the problems in the case will arise, instead of, as Sir Keir talked about in this case, a reactive, last-minute change of direction by the prosecution. Obviously, we would not want to see that happen again.
Ms Atchison: I am sorry, Mr McCartney. I was just going to add that, obviously, there is a difference between such cases and cases where there has been prosecution and the decision-making process can be explored through the court procedures. Cases of no prosecution are obviously more sensitive because it is very important that a victim understands why there is no prosecution. Independently of the Starmer review, we have done this: in a couple of the areas where we thought that the no-prosecution rate in certain cases of sexual abuse was quite high, we asked the regional prosecutor to conduct a review of a number of cases, over 20 of them. We looked at those ourselves and were satisfied that they were very difficult cases and that the decision in the cases was correct. We also have our own internal dip sampling and a quality assurance process. The Starmer report has helped us bring more focus to the areas where we really need to improve our case preparation and strategic thinking.
Mr McCartney: Thank you. That leads me to my next question. In how many instances have this, for want of a better phrase, second pair of eyes has been brought in to examine cases?
Mr McGrory: The only precedent is Lord MacDermott's report. There was a controversy around the Arlene Arkinson murder, whereby character evidence of other convictions in England was not introduced by the prosecution. A report was sought from Lord Justice MacDermott at the time. I think that is the only precedent that any living prosecutor can recall.
Mr McGrory: Of someone being brought in to review a prosecution decision.
Mr McGrory: It is, although I have managed to do two in the three and half years that I have been in, though it only happened once in 40 years.
Mr McCartney: I might be wrong, but was that a second pair of eyes in the Thomas Devlin case?
Mr Herron: There was external counsel. We had counsel based locally and then Treasury counsel's opinion was sought, which is in effect a second opinion, but not the type of review that the director is referring to.
Mr McCartney: That is OK. It is just that it is in my own memory. It may be a bit different —
Mr McGrory: If I have an opinion from inside the office or instruction from counsel with which I would disagree or would question, it is not unheard of to go and get another one. That is not uncommon.
Mr McGrory: No, that is a different thing. We are talking about different things. I am —
Mr McCartney: You are saying that it goes right back to Arlene Arkinson and to the contemporary, when you have two running very close to one another. The reason I ask is that, if other people came forward now and suggested that investigations carried out by the Public Prosecution Service in the past were not up to the standard that people expect, would there be the possibility of a second pair of eyes being introduced to look at some of those cases?
Mr McGrory: The problem, Mr McCartney, is that the risk of being open and prepared to accept mistakes is that, once that is done, people will pop up from many different quarters and say, "I want my case looked at again". The way to avoid that happening is never to admit ever having done anything wrong. I take the view, as director, that, in certain cases, if we have done something wrong, we need to be honest about it. At the same time, if you were to start to try to redo every case that everybody wanted reviewed, we would not function at all, for the present. We are just going to have to make judgements on that, but we have a policy of offering reviews of decisions, which are taken up frequently. If people take them up, they will get a review. To go to the expense and trouble of bringing in external people every time that is asked for would be untenable.
Mr McCartney: I think one of the recommendations had to be in place within six months.
Mr Herron: Six to 12 months. That is from our own internal transformation working group, working against their reduced [Inaudible.]
, like other Departments. We hope, with the measures that we have already put in place, that six to 12 months will be achievable.
Mr McCartney: I know you have cautioned people, quite correctly, about other issues of people being referred. Will the outcome of that process, where somebody is being reported to the Bar, be announced?
Mr McGrory: I understand that the professional conduct committee meets next week, but those proceedings are likely to run into the autumn. That is a matter for the Bar Council. But I understand that it is public.
Mr Poots: I can understand why the director is somewhat pleased with the Attorney General's report, given the findings in the Starmer report. We will deal with the Attorney General's report in a minute, but Starmer says there was:
"insufficient case planning ... The roles of some members of the prosecution team were not defined with sufficient clarity ... failure by senior PPS staff and counsel properly to analyse how to treat the membership and investigation evidence in the sexual abuse case ... The decision to proceed with the membership charges was not taken and endorsed at a sufficiently senior level in the PPS." —
in spite of the fact that he tells us today that there are hundreds of cases coming before his desk each week —
"The time taken to reach decisions to prosecute the membership cases was too long ... The overall delay in the sexual abuse prosecution was unacceptable ... Each case became weaker over time ... Communication with victims and witnesses was variable and at times inadequate ... In the view of the foregoing findings, we find that MC, AA and BB were let down by the PPS and counsel.".
I can understand taking some comfort from the Attorney General's report after a very, very damning report from Keir Starmer. I also happen to think that that is misplaced, because, when you study the Attorney General's report and look at what is in it as opposed to the spin that was put out by the Public Prosecution Service, you see that there is quite a lot to be concerned about in that report. I put that to the director: there is a lot to be concerned about in the Attorney General's report. Do you agree with that?
Mr Poots: OK. Let us deal with the issues then. First of all, I feel very strongly about the cases because few crimes are more repellent than taking away a child's innocence by force. That becomes even worse when it is someone who should be trusted by that child; indeed, the child's father. When that child turned to others for support and help, it was not as forthcoming as it should have been. That is very clear. Indeed, the individual was allowed to work with children for many years thereafter.
Let us just look at some of the issues in the report. First, I will turn to paragraph 6.10. In it, Áine Tyrell says:
"He put his thing in me".
What does the director think that means? What did Áine Tyrell mean when she said that?
Mr McGrory: I do not propose to answer that. I do not think that that is an appropriate question, Mr Chairman.
Mr Poots: I am sorry; it is for the Chairman to decide whether a question is appropriate.
Mr McGrory: That is why I am asking him.
Mr Poots: It is for you to answer, Mr McGrory. You have sought to direct where members' questions go. I have asked you a very clear and simple question: what do you think was meant by that?
Mr McGrory: I am saying to the Chairman —
Mr McGrory: What do I think was meant by that? It meant that he penetrated his daughter.
Mr Poots: Therefore, what was told to Mr Adams on that occasion was an offence under the 1967 Act. Is that right or wrong?
Mr McGrory: That is correct.
Mr Poots: It is significant that Mr McGrory has admitted that that is the case.
Look at paragraph 6.19. It states that:
"I note that neither the acting Director nor senior counsel appear from the acting Deputy Director's Minute to have been provided with the two transcribed interviews of December 6 2006 and March 12 2007."
Decisions were made without reading the transcribed interviews. Is that right?
Mr McGrory: I will let Ms Atchison deal with that one.
Ms Atchison: Those individuals are not employed by the PPS any longer. It is difficult to understand from the minutes, which are there to be read, what the thinking process is. I could speculate, but that would not necessarily be accurate. I would suggest that the focus of those individuals was to see Liam Adams prosecuted for the sexual abuse of his daughter and to try to use Gerry Adams as a witness. Historical sexual abuse cases are very difficult. Any support from any witness has to be of value.
Ms Atchison: Could I just refer back to the other paragraph, 6.10, if I may, Mr Chairman?
Ms Atchison: That is a reflection of the conversation that took place, but it does need to be set in context. That conversation took place in a house over two rooms. Áine Dahlstrom, her mother, Liam Adams and Gerry Adams were there. Whilst it is possible that Gerry Adams overheard the detail of that conversation, it is equally possible that he did not hear the full detail of the conversation because it did take place over two rooms.
Mr Poots: Well, the Attorney General seems to take a different view on this one. Again, you seem to say that this is a great report, so I will just read from the Attorney General's report.
Ms Atchison: I understand —
Mr Poots: If I can get away from the spin and actually get into the facts of it, it is quite useful. It states:
"I am of the opinion that there was sufficient evidence that Gerry Adams was aware of the nature of the abuse to merit a request being made by the PPS for further police investigation or clarification."
Why was that not the case?
Ms Atchison: I understand exactly what you are saying and what the Attorney General said, but the Attorney General asked us to consider seeking further clarification from Áine. I think that the Attorney General recognised that there was, perhaps, some doubt —
Mr Poots: This is all hindsight. Why, at the time, was that not requested?
Mr Poots: When you became aware at the time, why did you not request further action to be taken? Did you not read these police reports? Did the Public Prosecution Service not actually read —
Ms Atchison: I did not see the file at the time that the file came in, so I cannot comment on that.
Mr Poots: But someone in the Public Prosecution Service is bound to have read the interviews with the police.
Ms Atchison: They did read it, clearly. Liam Adams was not available at that stage. He was out of the jurisdiction; he was not made available until, I think, possibly 2011, if I am correct. It was considered at that stage. Gerry Adams was on the papers as a witness, and I think that to have delayed the process by seeking to ask the police to conduct further investigations of Áine Dahlstrom at that stage would have been counterproductive, and as the Attorney General absolutely recognises and comments on at paragraph 6.14:
"The PPS found itself during this time in an unenviable position",
where it wanted to use Gerry Adams as a witness and that the public interest in using him as a witness clearly outweighed the public interest in pursuing that as a potential investigation.
Mr Poots: That is interesting, because obviously you did use Gerry Adams as a witness in the first case, and that case collapsed.
Ms Atchison: Yes. Well, it did not collapse. The judge discharged the jury and ordered a retrial, but that was nothing to do with Gerry Adams as a witness.
Mr Poots: OK. Why did you not use Mr Adams as a witness in the next case?
Ms Atchison: There were technical reasons. Mr Adams was available; he was willing to be a witness, but, for technical reasons, the decision was taken to proceed with the case because the judge had set the trial for, I think, October, and there was every interest in proceeding with the trial.
Mr Poots: In the previous case, here are some of the answers:
"Well I don't remember the exact time but eh";
"Well I may be mistaken in that, and I acknowledge that.";
"but I concede that that may be erroneous";
"I don't have any specific recollection of this.".
Mr McGrory: Maybe the Chair could ask Mr Poots to inform us what he is reading.
Mr Poots: I am reading the extract from the court case, where Mr Adams was the star witness that you refer to.
Mr McGrory: Mr Chairman, can you please tell us —
Ms Atchison: I think I used the word "supporting" witness, not "star" witness.
Mr Poots: Sorry. I am posing the questions here, Mr McGrory. That might be unusual for you. You are usually the poser of questions, but I remind you that you are here today to answer questions, and it would be useful if we could do that.
It was then put to Mr Adams that he was actually lying, which he refuted, but, when you go through the following three or four paragraphs, it was quite evidently untrue. Would that have nothing whatever to do with the fact that you decided to use this witness again?
Ms Atchison: There were disclosure issues that were raised with the defence, and they asked for disclosure of material relating to specific incidents. There was material that would have had to have been looked through. It would have taken a very lengthy period to go through that material and, because the trial was set and there was an interest in proceeding with the trial for the witness, it was decided not to use Gerry Adams as the witness the second time.
Mr Poots: Did you regard him as a credible witness the first time?
Ms Atchison: You are asking me something. I did not direct the prosecution in the case. I did not put the witness list together. I cannot really comment on that.
Mr Poots: You are here to answer for the Public Prosecution Service. You are the most senior people in it. I know what it is like to be held to account. I am often held to account for other people's errors, so I understand where you are coming from, but you are here to answer the questions on behalf of the Public Prosecution Service. That was not a sufficient answer.
Ms Atchison: All I can say is that the judge did not find that perjury had been committed by Gerry Adams during the first trial. The second trial went ahead. There were disclosure issues, and we were asked to look at them. It would have taken a very long time to go through them.
Mr Poots: You successfully prosecuted without the assistance of Gerry Adams —
Ms Atchison: We did, yes.
Mr Poots: — and successfully won the appeal. I congratulate you for that element of your work. That is something that I think you should be given merit for achieving.
Ms Atchison: But there was a risk. There is always a risk in a case of historical sexual abuse. Áine Dahlstrom was an extremely good witness and was very articulate, but historical sexual abuse cases — sexual abuse cases of any sort — are very difficult. Any prosecutor is always going to look for some support for the witness, if there is support, because, in historical cases, there is very rarely any supporting medical evidence or forensic evidence. Mr Adams was important, because he was saying that Liam Adams had made an admission to him.
Mr Poots: When is it right to actually withhold from the official authorities your knowledge of a rape having taken place?
Ms Atchison: When is it right to do it?
Mr Poots: Yes. In my opinion it is never right, but, obviously, there were no charges brought against Mr Adams in this case, so when is it right?
Ms Atchison: It is a technical offence. The police already had a statement from Áine Dahlstrom in 1987 identifying Liam Adams as the perpetrator of sexual abuse against her, so the information from Gerry Adams would not have helped police to identify Liam Adams as the perpetrator. If Áine Dahlstrom had not made a witness statement and Gerry Adams had evidence at that point and had not come forward, that would have been a different situation, I imagine.
As I set out in the covering minute that I did for the Committee, the offence of withholding information is a technical offence, and it contains a defence of reasonable excuse. Let us say that Gerry Adams had said, "Yes, I did know that Liam Adams had raped Áine, but I was trying to facilitate a meeting between her and Liam Adams. I wanted to see if Liam Adams was prepared to admit it". We would have had to look at that in the context of whether we could disprove it or whether that might have constituted a reasonable excuse. On any analysis, the withholding of information, particularly in the context of this case, which was always going to be a prosecution of Liam Adams, would have been very difficult. That is the thing that the Attorney General's report recognises. In cases of familial sexual abuse, generally, some members of the family will know some degree of the abuse. That is why it made the very useful suggestion that we should be able to apply the public interest test, even where we think the evidential test may be met, but it might not be met at the actual time we are taking the decision, because there is a greater public interest served in prosecuting perpetrators of sexual abuse.
Mr Poots: But in the intervening period, Mr Liam Adams, who is now guilty of being a child-molesting rapist, was able to work in youth clubs in both west Belfast and Dundalk, County Louth. Obviously, Mr Gerry Adams knew of the accusations against him, but there was a potential for other children and young people to have been put in danger as a consequence of the withholding of that information.
Ms Atchison: I cannot really comment on that because —
Mr Poots: It is clear and recognisable that a convicted rapist was working with children and young people for many years when it was known to people that those allegations had been made against him. Those allegations were actually strong enough to wind up in court and become proof beyond reasonable doubt.
Ms Atchison: I suppose the only point that one might make is that the police were not requested to investigate any other allegation by any other person.
Mr McGrory: I think, Mr Poots — the point is well made by the Attorney General — that, where you get the situation, particularly within a family, where a victim of sex abuse confides in another member of the family in circumstances where they are not going to the police and are saying that they do not want the confidence broken but subsequently, many years later, as is often the case in those cases — let us take the individuals out of this one — they go to the police and the defence raises issues of late reporting and says that they cannot be believed because they took 10, 15 or 20 years to come forward, the family members in whom the confidence was reposed many years earlier are very important prosecution witnesses in those cases.
That is what we are talking about here and the public interest. That is why the Attorney General says he prefers the prosecution not to prosecute the relative in whom the confidence was reposed many years earlier but to use that relative as a supporting witness in the sex abuse prosecution of the alleged perpetrator. This is very common in families in any jurisdiction and in particular this jurisdiction in the sex abuse context. That is why the Attorney General agreed with the principle applied by the Public Prosecution Service in this case that the public interest lay with using the individual as a witness. It is a very difficult situation in the prosecution of these cases. However, you have these problems in all these historical sex abuse cases, and you need all the evidence you can get of contemporary complaint. That often means relying on people who were given the information at an earlier stage.
They are very difficult cases, and we have certainly responded to the Attorney General's positive suggestion that we alter the code to allow the Public Prosecution Service to go directly to the public interest in those cases where we feel that we really need the witness to give evidence.
Mr Poots: Chair, I concur with Mr McGrory that it is very common. In fact, I would go further and say that it is far too common. It is a mark of shame on both jurisdictions on this island that children have been abused in the way that they have and that those abuses have been covered up in the way that they have for many years.
I note no later than yesterday that the Pope has now identified a particular offence and that is to deal with bishops who took information about priests who were involved in child sex abuse and rape and did not deal with them. The question here is this: what did the member do with the knowledge? Did they encourage the individual to go to the appropriate authorities and get justice or did they offer to deal with it themselves in some way, shape or form? That was a failing of the Roman Catholic Church and a failing in this case. Unfortunately, the PPS to some extent has endorsed that, and that is hugely unfortunate. We have a situation where a child was raped; an individual knew about that and did not press hard for the proper authorities to be made aware of it or encourage and support that individual to proceed down that line. Consequently, that child rapist has been with children and young people for many more years thereafter. I put it to you, Mr McGrory, that it is totally unacceptable that someone who has been found guilty of child rape has been working with children and young people for over a decade and others had the knowledge that he was a child rapist in the intervening period.
Mr Poots: Thank you for that.
In winding up — I thank you, Chair, for your latitude in allowing the time for questions — I concur with my colleague Mr Douglas about public confidence. Mr McGrory was very bullish at the outset of the meeting in respect of the Public Prosecution Service. However, over the last few years, we have had the Stewart case, with a supergrass trial that cost £12 million collapsing. We had the case last week of Padraic Wilson. In this case, we have a critical report from the Attorney General, albeit not as critical as Starmer's, and we have the Starmer report. We have not had such a poor service from the Public Prosecution Service over any period in recent decades. Mr McGrory would do well to reflect on the quality of service that is being provided. Many of us, as public representatives who are articulating the views of the people whom we represent, are aware of public dissatisfaction with the way in which things are being conducted. In some instances, people are scratching their head and asking what it is that has to be done to get a successful prosecution against certain members of our community.
Mr McGrory: The member has been given the Floor to make a speech. I do not accept most of what he has said, and I do not think that it was appropriate that it was allowed, Mr Chairman. I am the Director of Public Prosecutions, and I have come here to assist the Committee, not to sit here to listen to speeches that could be made on the Floor of the Assembly or to the gentlemen and gentlewomen of the press.
The Chairperson (Mr Ross): I allowed a lot of latitude in the opening comments, and I do so in questioning too because this is a very serious issue. There is a lot of public interest in this matter, and it is important that we are allowed to interrogate these reports and public confidence. I am more than confident in allowing the questions that have been put.
Mr McGrory: That was a speech, not an interrogation of the issues.
Mr McGlone: I want to return to finding 5 to pursue something that Raymond was asking about. I will not make any speeches about it; I just want a factual response, please.
Mr McGrory: Yes, Mr McGlone.
Mr McGlone: Finding 5 concerns a failure by senior PPS staff. I was listening carefully when you were talking about offering the opportunity to people to go for reviews. Of those reviews, is there a percentage of decisions that are overturned?
Mr McGrory: We do not have a percentage figure for decisions that are overturned on review, unfortunately, but we can supply you with that.
Mr McGlone: That would be very helpful. My next question leads on from that, in the context of finding 5 that:
"There was a failure by senior PPS staff and counsel properly to analyse how to treat the membership and investigation evidence in the sexual abuse case."
Has there been a preponderance of the reviews associated with that particular section or structure in your office where those failings were found in this case?
Mr McGrory: Finding 5 was:
"a failure by senior ... staff and counsel properly to analyse how to treat the membership".
Mr McGlone: No; I am thinking of the process that arrived up to that point. If there were deficiencies and failings, was there any sort of pattern in the figures for reviews that had been looked at and maybe deficiencies that had been established that could be associated with conclusions that you needed to have another look at how things were being done in a particular section of your office?
Mr McGrory: I do not think so. The dip-sampling of the quality of decision-making is very high; it is 98·2% within range. That was endorsed by the criminal justice review in a recent inspection. The quality of the decision-making on our dip-sampling processes is considered to be very high.
Mr McGlone: I understand what you are saying, but I am talking about those instances where the decision was overturned, changed, adapted or tweaked, or whatever it was, on review. Obviously, if you do not have the facts in front of you —
Mr McGrory: I do not have the figures —
Mr McGlone: — you cannot answer the second bit, but I would be interested to have those facts to establish whether there has been any —
Mr Herron: Some of them may well be as a result of new or additional information.
Mr Herron: It is not always that you take the view that the original decision was outside the range of reasonable decisions for a prosecutor to take. Some of them will be split like that. As the director said, CJINI found the quality of our decision-making to be very high and that it compared very favourably with other prosecuting jurisdictions.
Mr McGlone: I understand that bit, but it is the other bit that I am interested in.
Mr McGrory: We have two different types of review under the code. The first is that the original directing officer reviews their own case if new material comes forward. In the second instance, a different officer reviews it if it is just a review on the same evidence. That is the review that you want to know the figure for, so we will try to come back to you on that. Perhaps we could do a review of the last year's cases or something.
Mr Herron: Reviews do not tend to be for offences as serious as the ones in the Starmer review. The vast majority will be lower level offences as opposed to very serious cases.
Ms Atchison: And there are usually no prosecution [Inaudible.]
Mr McGrory: Go ndéana sé a mhaith duit.
Mr Frew: Thank you very much for your time and your answers to the questions.
With regards to the Attorney General's report, paragraph 7.2 states:
"In this case, the PPS did not follow the normal procedures which usually apply in a case in which the need to give consideration to prosecuting an additional suspect arises in the context of an existing file."
We know what the Attorney General said in his report and what he is recommending now, but you broke the code at that time.
Mr McGrory: That is correct.
Mr Frew: Your job is to go after the evidential test.
Mr McGrory: Yes, but he is saying that the code was wrong; it should have permitted the prosecution to go directly to the public interest.
Mr Frew: Yes, but you would not have known that then.
Mr McGrory: No. I was not there then, but that is something that is accepted by us. We are changing the code. The Attorney General said that there was a prematurity in moving to the public interest in accordance with the code, but he said that the code should be changed to allow the Public Prosecution Service to go directly to the public interest in the situations that I have outlined. We are hoping to achieve that very shortly.
Mr Frew: It is OK, with hindsight, saying, "Yeah, that's what we should do; we should go to that test first". In those days, you would not have known that. You would not have known the Attorney General's recommendations to do that. The duty of you and your office is to seek the evidence to prosecute. In how many other cases at that time for the same offence were witnesses allowed to go without prosecution?
Mr McGrory: We do not have figures because we have not examined cases, but you are not talking about big numbers of cases where the point would have arisen.
Mr Frew: You understand the rationale for the question. It all comes down to public confidence again. We can look back with hindsight on all the case history and all the reasons why we do something. I understand the logic of wanting to have someone being able and willing to come forward to give evidence in the knowledge that they may not become harmed themselves when it comes to the court cases and the evidence that they may well know and have been harbouring for a long time. We want those people to come forward rather than staying in the shadows, so I understand why we are looking at it now with hindsight, but, at that time, you would not have been privy to that information or logical thinking. Your and your office's role was to pursue evidence to prosecute. If you cannot tell us that that was the norm and that, in most cases, witnesses who had that evidence would have been safe from prosecution, it looks as if individuals out there have been treated differently by the PPS. That then goes some way to eroding public confidence in your office.
Mr Herron: In this case, the Attorney General found that the decision that the evidential test was not met was perhaps premature. He suggested that we could go to the main witness, Áine, to seek clarification from her. Without that clarification, the evidential test was not met. The deputy director and I met that witness, and she made it very clear to us that she could not put matters any further than she already had. She absolutely did not want any further action taken. Her priority had been to convict the perpetrator of the actual abuse, and she was very pleased with the outcome of that case. In that case, it would not have been any different. If we had gone to see her, as the Attorney General suggests we might have done at that time, the outcome would not have been any different in that case. There may be other cases like that as well where the test is not met.
Mr Frew: In many ways, the outcome is irrelevant. It is the procedures that were followed by the PPS that have undermined confidence.
Mr Herron: In other cases where we may have had that and where we did not think that the test was met, we may have got that clarification from the witness and made a decision about whether we could prosecute for withholding information or not. There may be other cases where we did that at the time. The Attorney General is pointing out that, on this occasion, we were premature in reaching the decision because we did not do it, but there may have been other cases where we did and the evidence still did not meet the test when we prosecuted. We do not have those figures.
Mr Frew: Do you have them anywhere? Are they at hand in your office or system?
Mr Herron: We can give you figures for offences of withholding —
Mr Frew: Not necessarily today. Are they within your organisation? That is what I am asking. Are there records?
Mr McGrory: I doubt that they are there in that detail, because you would have to trawl through old files to try to ascertain what the evidential situation was in each of them.
Mr Herron: We have some statistics. Since 1 April 2010, the PPS has received 70 cases, which involves 110 suspects, on offences of withholding information. Of the 100 decisions issued over that period, 81 were for no prosecution and 19 were for prosecution, 17 of which were on indictment in the Crown Court. I went through those cases in preparation for the hearing today, and, of the 19 cases since 2010, none related to a sex case. So, we were not talking about sex cases in those situations. We do not have any other statistics beyond that, I do not think. It would be difficult for us to get.
Mr Frew: Did you say that that was 2010?
Mr Herron: That is since 2010.
Mr Frew: That is helpful in itself. There were 81 for no prosecution and 19 prosecutions.
Mr McGrory: That is helpful. Thank you.
Mr Frew: It is to get a context of the volume of the cases, the types of cases and the decisions to either prosecute or not prosecute. Thank you for that.
Paragraph 5.8(5) of the Starmer report states:
"On 17 August 2010 the Assistant Director of the Central Casework Section at the PPS".
I take it that that person is not in the room. or are they here?
Mr McGrory: Sorry, which paragraph is it?
"On 17 August 2010 the Assistant Director of the Central Casework Section at the PPS met and discussed the membership case with investigating officers from the PSNI. His file note, which was attached to the membership case file, noted that 'it appeared that there were likely to be some difficulties from an evidential point of view' and that 'Police mentioned tensions between the two investigations'."
What does that mean? What tensions would there have been between the two investigations?
Mr McGrory: That individual is not in the room. I think that he is referring to the fact that, when the police came to see him at that early stage in August 2010, they said that there were some investigative tensions between the sex abuse investigation and the IRA membership strand of it that was being carried out by a different branch of the police and that one was far further ahead than the other. They were looking for guidance on how to proceed. They were encouraged to get the sex abuse file in as soon as possible by that individual.
Mr McGrory: By my office. It said that the sex abuse case should be given priority. One of the problems in this case was that the IRA membership aspect was being carried out by a different branch of the police and came in separately. That is not to avoid the fact that it was our responsibility to marry them up at a later stage. I am not shirking that.
Mr Herron: There was a fairly pressing reason for that advice. Morris had been charged in April 2010 by police and so the clock was already ticking on having to take a decision on the case. We decided to ask the police to submit the file, and it was submitted the next day. It was case-ready at that time.
Mr Herron: No, the sexual offence case was the first case in, and he was charged in April 2010 with, I think, six offences. We had to get working on that file because obviously he was before the court. The difficulty has been that the two cases were not married up when they came into our section. The second case came in in December 2010, some months later. With hindsight, they may well have been dealt with in the central casework section that we referred to. Looking back now, the strategic element of the planning of the case should have been much more focused on how we were going to get round the difficulty of the membership charge and the charges against the other four individuals.
Mr Frew: Would your being privy to that information about tensions in the police have changed your thinking or strategy on the two cases?
Mr Herron: We were under some pressure anyway, because we had to look at the case that was ready. We could not have said to the police, "Hold on to that case and make sure you marry the two of them and send them in together", because that would have added another few months' delay. As it turns out, the sexual offence case was dealt with very quickly: it came in in August 2010, the decision was taken to prosecute in September 2010, the PE papers were prepared before the end of the year, and it was before the court at the start of the next year. That was less than five months, which was quite quick. The difficulty arose when the sexual offence case was ready to go and did not get on as a trial, and the other case overtook it.
Mr Frew: Starmer's report states that usually the sexual abuse case would have been dealt with by a regional office and that the membership case, with its terrorism aspect, would have gone to the central casework section. However, both went to the directing officer in the Belfast regional office.
Mr Herron: Yes, one of the criticisms is that nobody sat down and said, "Where should this case go?". The regional prosecutor did not flag up that it should have gone to the central casework section because of the complexities in the case.
Mr Frew: Surely, with the tensions in the police investigations, which are bound to have raised red flags, and the fact that you were dealing with two cases concurrently, one of which was of a sensitive and terrorist nature regarding membership, surely those things alone would have been enough to make you keep the cases together and, instead of letting them going down the way, putting them up the way.
Mr McGrory: That is a fair point. That is one of the key points at which there were opportunities to rectify what went wrong with this case that were not taken. I am not hiding from this.
"it is generally recognised as good practice for prosecutors to engage in proactive case management, including through the use of case plans."
I am not an expert in any guise, but that seems to be bread-and-butter stuff for an organisation like the PPS. Why would you not have case plans, especially when we have just gone through the context of why the cases were so sensitive and complicated and when there were two running concurrently?
Mr McGrory: If you look at the next sentence in paragraph 5.9, Sir Keir says that in recent years the Crown Prosecution Service has introduced that internal policy. It is recent over there. Like a lot of things, when you look at it you say, "Why haven't we done this before?". I cannot help but agree with you, Mr Frew. On the face of it, it looks like one of those things that should always have been there, but it is obviously a relatively recent development in the CPS, and it is something that we are putting in place so that there is a document that forces the directing officer to confront the issues and write them down so that they can be reviewed by a senior manager.
As I said, case officers were left to their own devices with counsel to develop case strategies. They would get maybe an opinion on direction of proofs from counsel and act on that, but Sir Keir has criticised the written opinion from counsel in this case as being unhelpful, vague and inaccurate. Had there been a case plan that was reviewable by a senior lawyer in the office, there might have been a point at which senior officers were alerted to this. You look at it and say, "That should always have been done", but —
Mr Frew: Would there have been any case plans conducted at all at that time? I am mindful that we are going back.
Mr Herron: You would have counsel involvement in cases. You would assess how early you would have to get counsel involved, and there would be discussions between counsel and the prosecutor about how to address strategic issues in the case, and counsel would produce our direction of proofs, which would address some of those meaty issues.
However, this is the first time that we are consolidating them. That practice would have varied from region to region among prosecutors and counsels, and much of it would be done by email. This way, we are getting a document that will be very visible to the regional prosecutor. He can see what is going on in the case and involve him- or herself in those decisions. That also applies to the senior management team, where a case has to be escalated to us because it is of such importance or is of such complexity that we have to have oversight of those decisions as well. It is formalising what was already happening in some areas, but not consistently across the board as well as it could have done.
Mr Frew: Excuse my ignorance; I genuinely do not know. Who made the decision on which case went first, the membership or sexual case?
Mr McGrory: We made the decision that the sexual case should go first. The directing officer makes those decisions in the rare instances where there are multiple files relating to the same set of facts. That is very rare, and it is unprecedented for only one of them to be of a paramilitary nature and the other not to be. The directing officer took the right decision to proceed apace with the sex abuse case, but it all came off the rails at the court when the defence sought to reverse the order.
Mr McGrory: There was a ruling of the court, but, as Sir Keir points out, it should have been vehemently opposed, and it was not. That chapter, I am afraid, has yet to be concluded.
Mr Frew: There may well be investigations, internal and otherwise, of this, but were you there when the decision was taken to reverse the order and go with the membership case first, Mr McGrory?
Mr McGrory: The order of the court was round about September 2012. I have been in post since November 2011.
Mr Frew: Did you not feel the need to oppose the decision more vigorously?
Mr McGrory: The problem is that we did not know about it. There are two issues here. In the PPS at the time there was a separate branch in a room of the courthouse called the crown room, which dealt with the delivery of cases to the court, where all this was managed. One of the criticisms is that there was not proper feedback to the directing officers in head office. I had identified that as a problem from the other side looking over before I became director. I changed it, but it took me 18 months. Dealing with trade unions and invoking all sorts of procedures to bring about a change takes time, so it had not happened by this occasion. That was one problem.
The other problem was that the person in the crown room raised it with counsel, who did not come back to him before making the concession in court. Even had I known about it — I was never going to know about it, because counsel did not tell the PPS officer in the courthouse that he was going to make this concession. That is how it happened. The problem is that we have any number of cases in any number of courts on a given day, and somebody at my level would not be consulted about the daily progression of a case like this. You need a mechanism to ensure that the ones that matter are. There was none. There was also the human factor; disciplinary proceedings in respect of that are pending.
Mr Frew: The PPS was made aware of 14 issues of concern in a letter from Ms Cahill on 12 August 2011. Can you outline the concerns and advise of the action that the PPS took to address those concerns?
Mr McGrory: Which paragraph are you at?
Mr Frew: There was a letter with 14 concerns. I am not exactly sure whether it is in with the report. It was dated 12 August 2011. Fourteen issues of concern were raised by Mairia Cahill.
Mr McGrory: Where are you getting this from, Mr Frew?
Mr McGrory: I am aware that she raised concerns in the summer of 2011, and the deputy director, who was then a senior assistant director of a different branch, spoke to her.
Mr Frew: Can you outline for the Committee the concerns in that letter?
Ms Atchison: I have not refreshed my memory recently, but, so far as I recall, she was concerned about a number of things, such as whether there would be a prosecution of —
Ms Atchison: Yes. She was concerned about the potential editing of statements in the sexual abuse case to take out the membership references. She was concerned about the fact that the two cases had been briefed to two separate senior counsel. The sexual abuse case had gone to a senior counsel who ultimately prosecuted all the cases for us. The terrorist-related aspect had gone to a counsel who was very experienced in terrorist-related prosecutions, but she felt that she did not have confidence in him. One of the things that she wanted was to have the same counsel deal with all the cases, and, ultimately, we agreed to that. She had other concerns, but those are the main ones that I recall.
Mr Frew: Do you feel that all her concerns were addressed by the PPS?
Ms Atchison: I think that they were addressed to the best of our ability at that stage. I did not know anything about the existence of the cases until I received a telephone call from Mairia Cahill saying that she wanted to meet me to discuss the cases, and I asked her to put her concerns into writing so that I would know what her concerns were. In the meantime, I made my own enquiries in the office to find out where the cases were. At that stage, as I recall, the sexual abuse case had been committed for trial. I do not think that it had been arraigned, but I think that it was coming up to arraignment, and the membership case was with this other counsel for his advices. One of my concerns at that stage when I met Mairia was that the sexual abuse case was going to be a jury trial and the other case a non-jury trial. I realised that the sexual abuse case met the conditions for non-jury trial, and an application had to be made quickly because it can only be done pre-arraignment. I had to organise that.
I had spoken to the directing officer on the editing point and was informed that the papers had not been edited and that that would be left for counsel to deal with subsequently. Therefore, I was at least able to tell Mairia that the papers had not been edited when she thought that they had been. I spoke to the senior assistant director and to the directing officer and made them aware of my conversation. I am criticised in the report for not having kept a briefing note of that, and I fully accept that I should have. My understanding was that, if I spoke to them, they would act on what I was telling them. We tried to address her concerns at that stage. There was a situation where the two cases at that time were really in very different places, with one being almost before the Crown Court and the other still out for counsel's advice. We moved it from that counsel and gave it to the counsel who Mairia had confidence in, and he then provided his advices, which were to prosecute. A decision to prosecute was taken by the directing officer, who then prepared the other set of papers.
Mr Frew: Of course, that is probably what led to the withdrawing of evidence by the witnesses, AA and BB.
Ms Atchison: I think that that happened much later when all the cases came before the Crown Court.
Mr McGrory: It was when the order was reversed in October 2012.
Mr Frew: Yes. I take your point about politicians. We tend to view ourselves as the face of the public; we represent the public and are their voice. At the time, the media reported that the withdrawal of these cases was due to a lack of confidence in the PPS. I am giving you the opportunity here. How can you assure victims and witnesses that they should have sufficient confidence in your office to come forward with evidence of this nature? These are very, very serious and heinous crimes that are being committed. When you look at the courts, the public protection arrangements in Northern Ireland (PPANI) and everything that is gone through to monitor and manage, you see that it is a very, very serious issue in our society. How can you present your case to the people and the public that they should have sufficient confidence in you and in your office to come to you with evidence?
Mr McGrory: I will deal with that as director. I do not want to make too much of it, but I made the point earlier that I brought in Sir Keir Starmer knowing that he would reveal problems in the office. It would have been easier for me to batten down the hatches, take whatever few days' criticism was thrown at me over that case and not do so. I do not make too much of this, but I would like to think that you and the body politic and the general public would at least appreciate, "Look, this case went badly wrong and mistakes were made, but at least we know what they were and what action has been taken to remedy the problems".
When people do that, the obvious question that they ask themselves and you, as political representatives, is, "How do we know that they are not making a mess of everything else?". I point to the general evidence. We have a very high approval rating from the Criminal Justice Inspection. We have a very high success rate in those cases in which we prosecute: we are above England and Wales at 85%. We have a huge number of cases in which we obtain convictions day and daily and in which people are more than satisfied with the outcome.
These are not happy circumstances for anybody, so people will not be jumping up and down praising the Public Prosecution Service simply for doing its job where they find themselves in places where they do not want to be. That it OK; that is our role. It is important for the public to know what measures we are now putting in place to make sure that what went wrong in this case will not happen again and recognise, "Look, this was a unique case that was mishandled, but very, very many complex cases are handled very well". One only has to open the paper any day of the week to see the range of convictions that we get in murder cases, manslaughter cases, rape cases and armed robbery cases. Day in and day out, people are convicted and sent to prison for offences that were prosecuted by my office. I think that the general public are mature enough to look at the generality of the situation and say, "OK. Well, the system is working in that people are accountable, and that, if mistakes were made, they can be accepted and we can move on". I can say no more than that, Mr Frew.
The Chairperson (Mr Ross): Thank you very much. I appreciate that it was a lengthy session, but it was useful to ensure that we covered all angles. Thank you for your time.
Mr McGrory: Thank you very much, Mr Chairman.