The minister, the watchdog and the DPP…

Now to that other slow burner south of the border. Mark Hennessy has been doing some good work in the Irish Times. Former Justice Feargus Flood accuses the Minister of Justice Michael McDowell of undermining the independence and authority of the Department for Public Prosecutions. But Hennessy argues that not everything quite stacks up the way the former judge tells it.Firstly, Flood’s statement in full:

1 The board of the Centre for Public Inquiry reiterates its full confidence in its executive director, Frank Connolly, and his integrity.

2 The board notes the recent controversy surrounding the CPI. The claim made in Dáil Éireann by the Minister for Justice, Michael McDowell, that either Frank Connolly or the CPI, or both, could pose a threat to the security of the State is entirely without evidential basis, unsustainable and totally untrue.

3 The CPI is an open, not for profit organisation. It has published two major reports since it began work in the spring of 2005.

The most recent report concerns the Corrib gas pipeline controversy and appears to have provoked the ire of certain vested interests and their political supporters. The first report concerned the construction of an hotel in the shadow of Trim Castle, Co Meath, a national monument in State care. It raised important issues of public concern including the manner in which the objections of the most senior officials charged with protecting the State’s heritage were overruled by a former minister.

Both reports were issued in the public interest, were factually based and devoid of comment. Other inquiries into matters of public importance are currently under way.

4 In relation to allegations made against Frank Connolly, the board of the CPI, as a body committed to high standards in public life, believes in valued legal principles such as the presumption of innocence and the application of due process. On Thursday last, December 15th, 2005, a letter was issued by the Director for Public Prosecutions. It stated that the DPP had decided on March 7th, 2003, not to prosecute Mr Connolly in relation to allegations, which he has consistently denied, that he used a false passport.

This information would have been available to the Minister for Justice, his department and the Garda authorities for up to two years and eight months, yet Mr Connolly was only informed of the DPP’s decision in recent days. The functions and decisions of the DPP are, by statute, independent.

5 Despite the DPP’s decision in March 2003 not to prosecute Mr Connolly, a private and public blackening of his character has been unleashed by the Minister.

6 This shows a signal departure from principles of fair dealing and respect for justice to the individual citizen by the State which are absolute, save in the most exceptional cases and where legislated upon by the Oireachtas.

7 The methods adopted by the Minister may well have undermined the status, authority and the statutory independence of the DPP.

8 A further statement concerning the relationship between Atlantic Philanthropies and CPI will be issued in due course.

Feargus Flood chairman.

On behalf of the board of the Centre for Public Inquiry

However, as Hennessy observes in his analysis piece:

However, the statement from Mr Justice Flood omitted a qualifying line contained in the letter from the Deputy Director of Public Prosecutions, Barry Donoghue, which was seen by The Irish Times last night. Having said that the DPP had decided in March 2003 not to prosecute, Donoghue went on: “I should however state that that decision would be subject to review should further evidence come to light.” In the past, the DPP never communicated with anyone about anything, though under James Hamilton, the office has taken to replying to solicitors in such circumstances more and more frequently, according to a legal source. Sometimes the sentence is included in the letters just to be careful; sometimes, it is what it says: a sword of Damocles that can be brought down hard if the landscape changes.

In other words, technically speaking, the case is still open. He also questions the former judges assertion that the Minister must have known about this case since the DPP’s decision two and half years ago:

The Minister’s state of knowledge in 2003 is significant because he and the Department of Justice’s Secretary General, Seán Aylward, last September swore Chuck Feeney to secrecy about the passport application. In November, Aylward, pressed by Feeney, went back to the gardaí who told him that they were finished with the case. By the end of the month, McDowell had given the bogus passport application to the Irish Independent. However, it is difficult to see how it benefited him to deny knowledge of the state of the investigation in September unless he genuinely did not know it. If anything, the Minister has been determined to get out as much negative information about Connolly’s role as executive director of the centre as possible.