An internal review of the Public Prosecution Service (PPS) decisions not to prosecute 24 individuals reported in connection with attendance at the funeral of Bobby Storey on 30th June 2020 has resulted in those decisions being upheld.
The PPS initiated a review process after receiving three formal requests to re-examine decisions taken in relation to a group of elected representatives reported by police for consideration of potential offences under the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020.
In line with procedures set out in the PPS Code for Prosecutors, this review was conducted by a senior PPS lawyer who was not involved in taking the original decisions on this file. This lawyer was assisted by obtaining the advice of Senior Counsel who is independent of the PPS and was also not in any way involved in the original decisions.
As a result, after a fresh consideration of all evidence submitted by police in relation to the conduct of those reported in connection with this funeral or an associated event, it has been concluded that the Test for Prosecution is not met in respect of any offence on evidential grounds.
PPS Senior Assistant Director Marianne O’Kane, who conducted the reviews, applied the Test for Prosecution to the evidence provided and concluded that as a result of all factors considered, it was not possible for the prosecution to prove any breach of the Regulations to the required standard.
Ms O’Kane said that she came to the conclusion that there were two key factors in the evidence not providing a reasonable prospect of conviction in the event of pursuing prosecutions. These factors were a lack of clarity and coherence within the Regulations in place on the exact date in question, and the nature of engagement between organisers and the Police Service of Northern Ireland (PSNI) in advance of the funeral.
“I have completed the process of taking a new decision in respect of all 24 individuals reported in connection with alleged breaches of the Coronavirus Regulations in place on the 30th June 2020,” she said.
“My consideration of this matter was conducted independently of the original decision-making team within the PPS. It involved a careful analysis of events leading up to Mr Storey’s funeral and on the day, against the context of complex and fast-changing Regulations.
“Having taken into account the advices of both the original Senior Counsel and a second Senior Counsel who was instructed to advise at review stage, I have concluded that the Test for Prosecution is not met on evidential grounds. This is on the same basis as the original decisions. Both the lack of clarity and coherence within the Regulations at that particular point in time, and the policing approach in the lead up to the funeral and on the day presented difficulties which the prosecution would not be able to overcome in the context of criminal proceedings.
“I should add for clarity that the basis for the decision is not that ignorance of the law is an excuse. Rather, the point is that the Regulations themselves were confused and incoherent and that this posed a particular difficulty in the context of an offence where a defence of reasonable excuse is provided.”
Ms O’Kane said she wished to recognise the significant public interest in this file and in the PPS decision-making and review processes applied to it.
“I can understand how difficult it is for many to reconcile the crowd scenes captured so publicly at the funeral of Mr Storey with the outcome that no prosecutions are directed for any breach of the Regulations,” she added.
“Whilst I appreciate concerns that what occurred was at least against the spirit of the law and public health guidance, the potential for prosecutions can only be assessed in light of the criminal law in force at the particular point in time.
“The PPS can only commence a prosecution when there is a reasonable prospect of conviction, and that threshold was not reached in this case. I would seek to assure those who requested reviews of the decisions and the wider public that these new decisions were reached after a very careful, impartial and independent consideration of the relevant law and the available evidence.”
A public statement was published by the PPS on 30th March 2021 outlining a detailed rationale for the original decisions not to prosecute any individual reported in connection with this case. The Director of Public Prosecutions Stephen Herron took this step in recognition of the high level of public interest in perceived breaches of the Coronavirus Regulations by individuals in a position of responsibility.
The Director, who was not involved in the review process having overseen the original decisions, emphasised that Ms O’Kane, assisted by advice from Senior Counsel, had independently conducted a fresh consideration of the file.
“The decisions issued by the PPS on 30th March 2021 prompted an intense public and political debate which understandably raised questions about the effective and fair application of the rule of law,” Mr Herron said.
“I want to reassure the public that I listened very carefully to this debate and was sensitive to all views raised. The PPS exercises a quasi-judicial function by independently and impartially applying the Test for Prosecution.
“On occasions decisions may not be well received by some, depending on perceptions. However, my priority is to ensure that all decisions are taken with integrity, without fear or favour, following careful analysis of all the available evidence.
“We have clear decision-making processes and review procedures, as set out in our Code for Prosecutors. Those processes have been followed at all times throughout our consideration of the individuals reported in connection with this funeral.
“Our independence and need for objectivity in decision-making does not mean that we cannot recognise the depth of public feeling and hurt. I recognise the sacrifices that have been made by many in seeking to adhere to the Coronavirus Regulations and public health guidance. Those sacrifices have been most painful for many families who faced restrictions when making funeral arrangements for a loved one. I hope people can take some comfort in having made an important contribution to curbing the spread of Covid-19.”
2. All decisions by the PPS are taken strictly in accordance with the Test for Prosecution which involves two stages. The Test for Prosecution is met if, in relation to an identifiable suspect, the available evidence is sufficient to provide a reasonable prospect of a conviction (the Evidential Test) and if prosecution is in the public interest (the Public Interest Test). The Evidential Test must be passed first before the Public Interest Test is considered. Further information can be found in the PPS Code for Prosecutors.
3. The PPS review process is also set out in full in the Code for Prosecutors. Further information on the process and parameters can be found here.
4. Media queries for the PPS should be referred to the Communications Unit by emailing firstname.lastname@example.org inside office hours. The out of hours press officer can be contacted on 07920 271804 and 07795 480234.