The reliability and consistency of witnesses, the existence of a second suspect who Nikita Hand had no recollection of having sex with, the amount of alcohol and drugs she consumed, and her demeanour in CCTV footage were all factors that prompted the Director of Public Prosecutions (DPP) not to bring criminal charges against Conor McGregor and James Lawrence.
The garda file was twice personally considered by the then DPP Claire Loftus, but the outcome was the same on both occasions.
The decision of the DPP was outlined during the High Court civil action taken by Ms Hand against Mr McGregor and Mr Lawrence, both of whom denied rape and claimed to have had consensual sex with her in a penthouse suite at the Beacon Hotel in Sandyford, Dublin, on December 9, 2018.
Details of the decision were given to the jury, but they were warned that it should not have a bearing on their deliberations.
The DPP’s decision was communicated to Ms Hand around 20 months after events in the hotel.
The trial heard Ms Hand only issued civil proceedings against both men, seeking damages, after being told there was no prospect of a criminal case.
She felt there was more than enough evidence for a criminal trial and told the Office of the DPP as much in a letter dated August 20, 2020, which she wrote with the assistance of Dublin Rape Crisis Centre.
“I am very unhappy. I feel I am being treated differently from other victims because one of the accused is a famous person,” she wrote.
Complainants are entitled to reasons when a prosecution is not taken. They can also request a review of such decisions. Ms Hand sought both.
Initially, only a limited explanation was forthcoming.
A letter from the DPP’s office on August 7, 2020 said that the garda file contained statements of evidence, a sexual assault treatment unit report, reports from Forensic Science Ireland, CCTV from various locations, records obtained from the hotel, mobile phone records, photographs, and cautioned interviews with suspects.
It said the job of the Office of the DPP was to ascertain if there was a reasonable prospect of obtaining a conviction based on the available evidence.
“We considered a number of offences, among which were rape and assault causing harm,” the letter said.
It said the file was considered by a lawyer in its directing section and that advice was also sought from a senior counsel with considerable experience of criminal cases. There was also a review by the director herself.
The letter said two suspects were identified during the garda investigation and consideration was given as to whether there was sufficient evidence to prosecute each of them.
Ms Hand was told an assessment was made of the available evidence, including the admissibility of evidence, and the sufficiency and strength of the evidence that would be presented at trial.
The letter went on to say a very high standard of proof was required.
“The prosecution must prove beyond a reasonable doubt that the suspect did it. The suspect does not have to prove their innocence,” it said.
Ms Hand’s letter of August 20 protested that she had not been given “any real reasons”.
The Office of the DPP was more forthcoming in a subsequent letter sent to Ms Hand on November 3, 2020. By that stage there had been a review by Ms Loftus of the initial decision not to prosecute, which did not alter the director’s view.
This letter said Ms Loftus had concluded the decision “was correct and should stand” and that the identity of one of the suspects had no bearing on that decision.
It said the case was “a very complex one to decide on for various reasons”.
Ms Hand was told that the extent to which the evidence of witnesses was consistent and reliable was considered, as well as whether details in the evidence could be corroborated independently.
“One significant factor in this case was the existence of a second suspect who claims to have had sexual intercourse with you after you say you were raped by the first suspect,” the letter said.
Mr McGregor was the first suspect and Mr Lawrence the second suspect.
“As you know, you have no recollection of intercourse with the second suspect and have stated that if sex had taken place it would not have been consensual,” the letter continued.
“You also described in your statement the amount of alcohol and drugs you had consumed.
“The CCTV from the hotel as well as relevant witness statements from hotel staff and a taxi driver were considered.
“That evidence would not in general tend to support a prosecution in respect of the second suspect and also had relevance to the overall strength of the evidence with respect to the first suspect.
“It is not a question of who we as prosecutors believe. Our job is to assess whether there is a reasonable prospect of conviction on the basis of all of the evidence.
“The director concluded that there was no reasonable prospect of the conviction of either suspect in this case.”