Publication date:
The Public Prosecution Service (PPS) acknowledges the acquittal today of three men on trial in Belfast Crown Court facing charges relating to the presentation of evidence to a Northern Ireland Assembly Committee in September 2015. The Committee for Finance and Personnel, chaired by Dáithí McKay, was conducting a review of the sale of the National Asset Management Agency (NAMA) property loan portfolio in Northern Ireland.
Following a formal complaint to police in August 2016, the Police Service of Northern Ireland (PSNI) carried out an investigation relating to private messages exchanged between Mr McKay, Jamie Bryson and Thomas O’Hara. Subsequently the PSNI submitted an investigation file to the PPS reporting one individual for misconduct in public office and two individuals for conspiracy to commit misconduct in public office. When the PSNI submit a file to the PPS, we have a duty to decide whether the case meets the Test for Prosecution. If it does, a prosecution will be brought.
A PPS spokesperson said: “The PPS took the decision to prosecute after a team of experienced lawyers, including independent Senior Counsel, carefully examined all the evidence in the investigation file. We determined that the Test for Prosecution was met in respect of the three reported individuals. This means that the available evidence provided a reasonable prospect of conviction in court, and that it was in the public interest to prosecute.
“The prosecution case was presented in open court. The allegations in the case related to the deliberate manipulation of rules of procedure put in place by the Committee to ensure that there was no potential prejudice to an ongoing criminal investigation by the National Crime Agency (NCA) at that time or any future court proceedings. The case was not about whether the witness’s evidence was true or accurate or that any witness should have been prevented from giving evidence to the Committee.
“The chair of the Committee, Mr McKay, had important responsibilities in relation to its conduct and had engaged directly with the NCA on how the Committee could carry out its work without risking prejudice to the ongoing criminal investigation or any future court proceedings.
“It was the prosecution case that Mr McKay misled other Committee members and facilitated a witness in giving certain evidence outside the Committee’s Terms of Reference in open session, creating the exact risk that he had a responsibility to avoid. This was after a series of messages in which Mr McKay, using Mr O’Hara as a conduit, coached Mr Bryson in how to present his evidence in order to circumvent the rules of the Committee.
“The PPS considered that a Judge could reasonably conclude that the alleged misconduct caused grave damage to public confidence in the operation of Northern Ireland’s democratic institutions and, in these circumstances, warranted the intervention of the criminal law.
“There are mechanisms within the criminal justice system whereby cases that could not result in a conviction can be stopped. This case was challenged on multiple occasions by the defence and each time judges independent of the PPS determined it should proceed.
“These were a challenge in the Magistrates’ Court by way of a contested committal hearing; a challenge in the High Court by way of judicial review; and challenges before two separate Crown Court Judges, one before the case started and another at the end of the prosecution case. On each occasion the nature of the prosecution case and the supporting evidence was presented to the court, which determined that the case should proceed. These rulings by the independent judiciary support the contention that the case was properly brought.
“As is our duty, we kept the evidence in this case under continuing review throughout. At all times we remained satisfied that the available evidence provided a reasonable prospect of conviction.
“Where a case is before the courts and it has been found that there is a case for the defendant to answer, it is entirely proper for proceedings to continue to allow the court to determine whether the offence is proved beyond reasonable doubt. The PPS does not decide the guilt or innocence of any defendant. That is always decided by a court.
“In any properly functioning criminal justice system there will always be cases that do not result in a conviction. The PPS will always take decisions as to prosecution independently, and without fear or favour. All decision making in this case was impartial, independent and in accordance with the PPS Code for Prosecutors.”
“The evidence has now been tested during the adversarial trial process and we fully respect the Judge’s ruling.”
Notes to editors
Full information in relation the cost of the case is being compiled.
The costs of this case will undoubtedly have been increased by the extremely protracted nature of the proceedings and the multiple unsuccessful legal challenges which the defence mounted at various stages.
The role of the PPS:
The PPS has a statutory duty to take decisions as to prosecution in relation to all files submitted by investigators where there is evidence that a criminal offence may have been committed.
The PPS carries out its functions independently of any other person, in accordance with the Justice (Northern Ireland) Act 2002.
The decision whether to convict in any Crown Court case is for the tribunal of fact. The tribunal of fact will be a jury in most cases or, where (as in this case) the Director has issued a certificate for non-jury trial, a Judge.
The Test for Prosecution:
The Test for Prosecution is met if: (i) the evidence which can be presented in court is sufficient to provide a reasonable prospect of conviction – the Evidential Test; and (ii) prosecution is required in the public interest – the Public Interest Test. This is a two stage test and each stage of the test must be considered separately and passed before a decision to prosecute can be taken. The Evidential Test must be passed first before the Public Interest Test is considered. If this is also passed, the Test for Prosecution is met. There is more information on the Test for Prosecution in the PPS Code for Prosecutors.
As regards the public interest stage of the Test, broadly, the presumption is that the public interest requires prosecution where there has been a contravention of the criminal law. This presumption is particularly strong where the offence in respect of which the evidential test is met is one that is triable only on indictment, i.e. in the Crown Court. The offence of misconduct in public office, which was subject of the investigation and prosecution in this case, is an indictable only offence.
The offence of misconduct in public office:
This is a common law offence, meaning it is not created by legislation but developed through case law. The elements of the offence of misconduct in public office are set out in the case Attorney General's Reference No 3 of 2003 [2004] EWCA Crim 868. The offence is committed when:
- a public officer acting as such
- wilfully neglects to perform their duty and/or wilfully misconducts themselves
- to such a degree as to amount to an abuse of the public's trust in the office holder
- without reasonable excuse or justification
Timeline of the case:
The file was received from police in April 2017. There was continued engagement with police during 2018 and 2019 including requests for additional evidence needed in order to take a decision on whether to prosecute and information required for the conduct of the committal proceedings. Following receipt of this information, the PPS were able to take a decision as to prosecution in April 2019.
Preliminary Enquiry (PE) papers were served on the defence on 7 January 2020. The case was first listed for PE (committal to the Crown Court) on 28 January 2020. The prosecution was ready to proceed to trial at this point.
The length of time taken for the case to subsequently progress to trial is due to a variety of factors including the pandemic, defence applications and legal challenge. The committal for this case was contested by the defence and the defendants were not returned for trial until March 2021.
Thereafter, arraignment of the defendants was adjourned pending the outcome of two judicial review challenges brought by the defence in the High Court. One of the judicial review challenges was unsuccessful and the second was ultimately withdrawn by the defence on the morning of hearing. An unsuccessful “no bill” application was also brought by the defence. This was dismissed by the judge on 31 July 2023.
Between the no bill judgment and the trial starting in May 2025, there were various adjournments granted by the court. This included adjournments for the outcome of applications for disclosure made by the defence.
Challenges by the defence:
Judicial review: Two of the defendants (Jamie Bryson and Daithí McKay) made a challenge to committal by way of a judicial review application, which was dismissed. On 26 November 2021, the Divisional Court refused an application made by Mr McKay and Mr Bryson by way of judicial review to quash the decision to commit them for trial on indictment in relation to a charge of conspiracy to commit misconduct in public office. The judgement can be read here
Committal: The committal stage of a court case is a pre-trial screening procedure the purpose of which is to ensure that there is sufficient evidence to commit the accused to the Crown Court for trial. This is decided by the District Judge. This case passed the committal stage and therefore the Judge was satisfied that there was enough evidence to proceed to the Crown Court.
No Bill Application: There was an application for a No Bill in the Crown Court before the arraignment of the defendants. This is an application for a ruling that the served evidence does not provide a basis upon which a properly directed tribunal of fact could convict. That application was unsuccessful and the Crown Court Judge, having carefully considered the prosecution evidence and the prosecution and defence submissions, found the case should proceed. The No Bill application was dismissed by the court on 31/7/23.
Galbraith test: Following the conclusion of the prosecution case in May 2025, the Trial Judge ruled that there was sufficient evidence upon which a properly directed tribunal of fact, in this case a judge sitting alone, could convict each of the three defendants of the offences charged.