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DECISION OF DIRECTOR OF PUBLIC PROSECUTIONS (NORTHERN IRELAND)

The RUC investigation file into the murder of Seamus Ludlow was received by the Director of Public Prosecutions in Northern Ireland on 23 October 1998.

One year later, on 15 October 1999, a direction for no prosecution was issued. This decision was conveyed to the Ludlow-Sharkey family.

In response to a letter from Michael Donegan seeking information on the DPP's decision, the Rt Hon Adam Ingram JP MP, Minister of State at the Northern Ireland office wrote as follows:

"As you know the DPP after careful consideration of the police investigation file concluded there was insufficient evidence to obtain a conviction against anyone named in the file and they therefore directed no prosecution on the case. If any new evidence comes to light or you have further information about the murder the police would be keen to pursue it."32

On 21 November 2003, the Inquiry wrote to the Northern Ireland Office, seeking to discover the reasons for the DPP’s decision not to prosecute. The Secretary of State for Northern Ireland, the Rt Hon Paul Murphy MP wrote back on 6 February 2004, enclosing the following response from the Deputy Director of Public Prosecutions:

"When a police investigation file is submitted, it is the duty of the Director to decide whether or not criminal proceedings should be instituted or continued.

In Northern Ireland, prosecutions can only be directed where there is sufficient evidence available to afford a reasonable prospect of obtaining a conviction and prosecution is required in the public interest. Where the evidence available is insufficient, there can be no prosecution.

It has been the general practice of the Director to refrain from giving reasons for decisions not to institute or continue with criminal proceedings other than in the most general terms. Such a practice exists for compelling reasons and is in accordance with law and practice in Northern Ireland.

The Director recognises, however, that the propriety of applying his general practice must be examined and reviewed in every case where a request for reasons is made. Accordingly, I have carefully considered whether the general practice should be applied in this case or whether it is appropriate to depart from the general practice in this case.

The evidence and information reported, together with the recommendations of police were carefully considered by experienced lawyers in this office. The advices of independent Senior Counsel were also obtained and considered.

Having done so, it was concluded that the evidence available was insufficient to afford a reasonable prospect of obtaining a conviction against any person, and, accordingly, a direction for no prosecution issued."

On 27 January 2004, the Inquiry wrote to the Director of Public Prosecutions in this jurisdiction, supplying him with a copy of the Garda documentation available to the Inquiry and seeking his views on the decision by his Northern Ireland counterpart not to initiate a prosecution in this case. At that stage, the Inquiry had not yet received a copy of the files submitted by the RUC to the Northern Ireland DPP’s office.

In a lengthy reply, the DPP understandably declined to pass judgment on the decision of the DPP for Northern Ireland without knowing what information the latter might have received from the RUC in addition to the Garda file. He continued:

"I can say, however, that the limited information available to me appears to point to a number of significant difficulties in now mounting any prosecution in relation to this case. I do not therefore find it surprising that the DPP for Northern Ireland has reached the conclusion that he has."33

Prefacing his views with a warning that differences in criminal procedure and the admissibility of evidence might affect their usefulness, he pointed out the difficulties in the case as he saw them:

"The most obvious charges which a prosecutor in either jurisdiction would be likely to consider would be a prosecution of William Long and Samuel Carroll for the murder of Seamus Ludlow based on the evidence of Fitzsimmons and Hosking.

Fitzsimmons and Hosking’s admissions of being present when Mr Ludlow was killed fall short of admissions to participation in the murder. Indeed, they deny such participation or of being part of any common design to kill him.

There would not, therefore, appear to be a basis for establishing a case of murder against either of them.

If a prosecution of Long and Carroll were to be brought, it would be entirely dependent on the willingness of Fitzsimmons and Hosking to give evidence. Both of them have made statements admitting their presence during the killing and putting the blame on Long and Carroll. There is no supporting forensic evidence for their story. It may be that some support for their story could be found in the surrounding circumstances of the case which would not be known to those who were not present. Without detailed knowledge of their statements I cannot say whether this is the case.

Not having seen the detailed notes of interview, or statements from the RUC officers who carried out the interrogation, I cannot form any view on the credibility of either man. A prosecution could not succeed unless the two men were regarded as credible witnesses. On the information available some obvious problems present themselves. Fitzsimmons has no memory of Hosking being present. This would immediately raise a question mark as to the reliability of his memory at this remove in time. Hosking’s claim not to know the purpose of the trip to Dundalk appears on its face unconvincing. In any trial, a court would be alert to the danger of convicting on uncorroborated accomplice evidence, and to the fact that both Fitzsimmons and Hosking would have a clear interest in casting the blame elsewhere.

I have no information on the preparedness of Fitzsimmons and Hosking to give evidence. Civilian witnesses are almost always extremely reluctant to give evidence against paramilitants. At the least it would seem unlikely that they would do so without the sort of protection conferred by participation in a witness protection programme. That in turn can significantly weaken the credit attaching to the witness’ evidence where the witness is portrayed as giving evidence to secure the benefit of participation in such a programme.

It may also be added that if a prosecution in this jurisdiction were to be considered there is no means by which the attendance of witnesses from outside the jurisdiction could be compelled. There are no procedures to compel a witness who is abroad to give evidence within the State. The provisions of section 11 of the Criminal Law (Jurisdiction) Act, 1976, which permit a Special Criminal Court to have evidence taken in Northern Ireland in the presence of members of the court, apply only where the offence was committed there and is being tried in the State. The provisions of section 52 of the Criminal Justice Act 1994 could perhaps be employed though it must be doubted whether this procedure could be used to take what would in effect be the only evidence in the case, particularly if the credibility of the witnesses concerned was a central issue in the trial, as would almost certainly be the case.

A further problem which would almost certainly arise at any trial relates to the long lapse of time since the events in question. Apart from the difficulties referred to already concerning the accuracy of the recollection of Fitzsimmons and Hosking, it is also possible that Long and Carroll would, in the event of a trial, be able to claim actual prejudice by reason of, for example, their inability to have Fitzsimmons’ car forensically examined, or to establish an alibi after all these years. The delay argument would of course be strengthened by the fact that we cannot now explain why Superintendent Courtney’s recommendations in 1979 were not followed up.

As a further point I am unaware of whether the DPP in Northern Ireland may be in possession of other information of which neither I nor the Garda Síochána are aware. I am thinking of, for example, other evidence which would be relevant to the credibility of Fitzsimmons and Hosking. Given that the identity of the four suspects first came to light through the information of an unnamed informant, it is clear that we are dealing in very murky territory.

The question in turn could be raised of what this unnamed individual’s involvement was, what was his source of information, and whether a fair trial could take place without his evidence. I assume he would not be available to give evidence."34

The Inquiry concurs with the observations made in this letter. From an examination of the RUC investigation file received by the Inquiry, it is now clear that there was a considerable divergence between the versions of events recounted by Hosking and Fitzsimmons respectively. It is the view of the Inquiry, concurred in by the DPP, that this could only have compounded the difficulties faced by a prosecutor in this case.

32 Letter from NIO to Michael Donegan, 13 March 2000.

33 Letter from James Hamilton, DPP to the Inquiry, 11 March 2004.

34 Ibid.

I Top I I Barron Report is Published I

Remember: You can download to your computer a complete copy of the Barron Report on the murder of Seamus Ludlow  from the Oireachtas website (pdf file)

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The Ludlow family supports the campaign by the Rooney and Watters families of Dundalk for an inquiry into the murderous Dundalk Bombing of 19 December 1975 which resulted in the sectarian murder of Jack Rooney and Hugh Watters. 

Further information can be accessed at their campaign website.