While we do not know, and probably will never find out, why the PSNI referred Gerry Adams’ file to the prosecution service for a decision on whether to charge him, it is very possible that ‘public interest’ considerations were high on the list of factors.
This is because of Adams’ post as an elected representative, the leader of one of Ireland’s largest political parties and because of his key role as the IRA broker of the peace process. Since his prosecution and/or conviction could have serious implications for the peace process, and therefore for British government policy, this may qualify his case for the ‘public interest’ argument and a government intervention to stop any prosecution.
It may also be the case that the decision was made solely or mainly because the police are unsure whether the evidence they have gathered would be sufficient to secure a conviction at trial and decided to pass the ball to the prosecution service’s lawyers to decide. But common sense suggests that ‘public interest’ is likely to be an element in the decision.
The doctrine of ‘public interest’ was devised by Sir Hartley Shawcross QC, a Labour Attorney-General in the first post-war British government who later became chief prosecutor at the Nuremburg war trials.
The doctrine was outline in a statement to the British House of Commons on January 29th 1951 from Shawcross which read:
“It is the duty of an Attorney-General, in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.
“In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations which might affect his own decision, and does not consist, and must not consist, in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney-General, and he is not to be put, and is not put, under pressure by his colleagues in the matter.”
Given the profile and sensitivity of the case it seems unlikely that a decision of this gravity would be left to Barra McGrory’s deputy, assuming he recuses himself from the case. Instead she is likely to refer the case to the British Attorney-General, Dominic Grieve MP. In effect the British government will decide whether Gerry Adams ends up in the dock.
So in a nutshell Gerry Adams might end up a beneficiary of a rule which permits dropping a prosecution which might have an adverse impact on “public morale and order, and with any other considerations affecting public policy”.
Stand by for the mother and father of political rows if that happens.