PRIVATE AND CONFIDENTIAL

ADDRESSEE ONLY

BY E-MAIL

PPS Ref: 494149

Date: 1st February 2011

Dear Mr McGartland

As you are aware, the decision was previously taken not to prosecute anyone for
your alleged abduction and false imprisonment on 8th August 1991. I am writing
to inform you that I have now completed my review of that decision.

Having carefully considered all of the evidence and information available,

including that contained in e-mails from yourself and, having regard to the
advices of independent senior counsel, I have concluded that the decision not to
prosecute was within the range of decisions that a reasonable prosecutor could
have taken in the circumstances. That being so, the decision will stand.

I realise that this decision is likely to be disappointing for you and I have
considered what further information can be provided to you regarding the
reasons for the outcome of my review.

I note that in the e-mail to you dated 12th October 2010 it has already been
explained that in the absence of independent admissible evidence there is no
reasonable prospect of conviction and that hence the Test for Prosecution is not
met.

The Test for Prosecution is set out in full in the Code for Prosecutors, a copy of
which was previously sent to you. As you will have seen there are two parts to
the test, namely the evidential test and the public interest test. The Test for
Prosecution is met if the evidence which can be adduced in court is sufficient to
provide a reasonable prospect of conviction (the evidential test) and prosecution
is required in the public interest (the public interest test). The evidential test
must be passed before the public interest test is considered.

It may be helpful if I elaborate on the meaning of the evidential test. A

reasonable prospect of conviction exists if, in relation to an identifiable
individual, there is credible evidence which the prosecution can adduce before a
court upon which evidence an impartial jury or other tribunal, properly directed
in accordance with the law, may reasonably be expected to find proved beyond
reasonable doubt the commission of a criminal offence by the individual who is
prosecuted.

It is impossible to know with absolute certainty whether or not a conviction will

be obtained in a particular case. What is required is that there is a reasonable
prospect of a conviction on the evidence. The weighing of evidence is not an
exact science but rather a matter of judgment for the prosecutor. The evidence
available to the prosecutor must be sufficient to reach the high standard of proof
required by the criminal courts.

Among the factors I have taken into account in concluding that the decision not
to prosecute was within the range of decisions that a reasonable prosecutor could
have taken are the following:-

1. No statement of complaint was made in 1991; no witness statements were

recorded and no arrests were made. A court would inevitably wish to
examine the reasons why this was so. I note that you informed my
colleague Ms O’Kane that police officers told you not to name the
persons who kidnapped you. The investigating officer in the present
investigation has spoken to these officers who assert that they had no
conversation with you regarding reporting. The investigating officer has
confirmed that there is no record of any such conversation. Whatever be
the true position, the fact is that no complaint was recorded until 2008.
Where a court cannot be sure about the integrity of any part of the
prosecution case it is likely to resolve any such matter in favour of the
defendant.

2. Enquiries have been made with the Royal Victoria Hospital and Musgrave
Park Military Hospital. No records have been identified concerning your
admission on 8th August 1991.

3. There are records that a crime scene was held at 54D Broom Park and that
an examination was carried out by a scenes of crime officer and a
photographer. There is no indication that your fingerprints were found at
the scene. While there is some indication that fingerprints of three
suspects were recovered at the scene it is by no means clear that these
could now be proved to the requisite standard. The original exhibits are
unavailable and it is not possible to identify the officers responsible for
recovering the prints and supplying them for analysis. In any event
fingerprints on their own do not implicate any of the accused in the
commission of an offence. One of the suspects is thought to have been
 the tenant of the property at the time and the two other suspects were his
associates. The fingerprints were on newspapers and books with no direct
link to the alleged offence. There is, in short, no forensic evidence to
support your account.

4. In assessing the weight of the evidence as a whole the court will take into
account the absence of other supporting evidence where the circumstances
are such that other evidence would normally be expected to exist. It must
be borne in mind that the onus of proof is on the prosecution to establish a
case beyond reasonable doubt.

5. A court will look particularly closely for other evidence when the
allegations are denied. All of the accused have been interviewed by
police and deny the allegations. Those whom you have named assert that
the allegations are made up.

6. The prosecution has a duty to disclose to the defence any materials which
undermine the prosecution case or assist the defence. In the present case
this has the potential to include any materials touching upon your
credibility, reliability or motives in giving evidence. Given the
information contained in your witness statement it can be anticipated that
there would be requests for disclosure of materials in relation to your
status and background at the time of the alleged offences. The issue of
disclosure would not be confined to the present incident but would extend
to your credibility on a much broader basis. It could for example
encompass any credibility issue arising from incidents referred to in your
book. It is conceivable that the disclosure of such materials might
infringe a person’s right to life under Article 2 of the European
Convention on Human Rights. If for this or any other reason materials
could not be disclosed a fair trial could not be guaranteed and hence
proceedings could not be continued.

7. In relation to fair trial there remains the fact that after the passage of time
since 1991 the accused would face severe difficulties in obtaining
evidence in their defence. This is a factor that a court would be required
to take into account when considering whether a fair trial is now possible
and if not that proceedings should be stayed as an abuse of process.

I am aware of the request for information you have made under the Freedom of
Information Act and note that among your enquiries you asked why it took the
PPS one year to reach a charging decision in this case. The decision which the
PPS has taken is not a charging decision but a decision not to prosecute. The
investigation file was received from the PSNI on 15th October 2009 and
allocated to a prosecutor on the same day. The file was not given priority over
other cases as it did not involve a person in custody nor did it involve a young
person as a suspect or witness. Consideration of the file required careful
analysis of all the facts and information available and consultation with police
on a number of occasions. When the file had been fully considered the decision
not to prosecute was communicated to you by e mail dated 12th October 2010.
While every effort is made to make decisions as expeditiously as possible, cases
involving difficult and complex issues such as the present inevitably take longer
than those which are more straightforward and must be considered in the context
of the particular prosecutor’s workload at the time.

I hope this is of assistance to you. If you consider it would be helpful I would

be happy to arrange to meet you at a suitable location to discuss it further.

Yours sincerely

Signed

JOHN REA
Assistant Director