Introduction
Introduction
The Irish public prosecution system is heavily shaped by its common law origins. Prior to the introduction of organised public police forces in Ireland at the end of the eighteenth century, criminal prosecutions were brought primarily by private individuals in much the same way that they prosecuted civil actions. Where there was an identifiable victim he would be the most likely prosecutor. A significant number of prosecutions were also taken by private clubs and societies set up ostensibly to prevent and detect crime and to improve the morals of the community. Undoubtedly financial gain was a factor in their growth as fixed sums were often payable to those responsible for securing convictions over a whole range of offences. There was a heavy reliance, therefore, on private initiative in the prosecution of crime.
By the end of the eighteenth century it was generally accepted that private initiative was not sufficient to combat the growth in crime. From then the strategy moved very definitely in favour of the establishment of public professional police forces and public prosecution agencies. The first such police force appeared in Dublin in 1786 and they had spread throughout the whole country by 1840. While police officers quickly developed an expertise in bringing prosecutions based on their own investigations, they were not given a specific statutory responsibility for prosecutions. In effect, they prosecuted individual cases in their common law capacity as private citizens.
The absence of a statutory regime for prosecutions was reflected in the role of the Attorney General in this area. The office of Attorney General was (and is) one of the great constitutional offices of State. Although technically a member of the government, the Attorney General functioned primarily as legal advisor to the government and, frequently, as the initiator of public prosecutions. In his prosecutorial role he was assisted by the office of State solicitor in Dublin and, on a contract basis, by solicitors in private practice in other parts of the State. All of these arrangements, including the office of Attorney General, were based on the common law and they existed side by side with prosecutions taken by citizens and police officers at common law.
The first significant statutory intervention came in 1924 when the office of Attorney General was placed on a statutory basis and endowed with a monopoly over prosecutions on indictment (trial before judge and jury). However, the legislation did not seek to regulate the Attorney General’s performance of this prosecutorial function in any way. Equally, it did not interfere with the common law right of citizens and police officers to take prosecutions in summary cases (trial before judge alone). The next major statutory intervention was in 1974 when most of the Attorney General’s prosecutorial functions were transferred to the office of Director of Public Prosecutions (DPP) which was established as an independent, permanent, professional prosecutor. Apart from that the legislation did not attempt to regulate the conduct of prosecutions.
The legislation governing the national police force (Garda Siochana) was enacted in 1924 and 1925. It is silent, however, on the whole issue of prosecutions, including the role of the police in initiating prosecutions and in assisting the DPP (or the Attorney General) on the conduct of prosecutions. These vital matters have been left primarily to the common law. It is also worth noting that the Garda Siochana Bill 2004, which is currently being processed through Parliament, is equally silent on the regulation of prosecutions even though it will lay the statutory foundation for policing in Ireland for at least the next fifty years.
The net effect of the developments described above is that the prosecutorial process in Ireland is governed by a mixture of common law and statute law which subjects it to a relatively loose form of regulation. Not only is there a multiplicity of prosecutors (public and private) but each is independent of each other and enjoys a very broad measure of discretion in prosecutorial policies and decision-making. As will be seen later, there is also a high degree of compartmentalisation between the investigation, prosecution and trial stages of the criminal process.
The Irish public prosecution system is heavily shaped by its common law origins. Prior to the introduction of organised public police forces in Ireland at the end of the eighteenth century, criminal prosecutions were brought primarily by private individuals in much the same way that they prosecuted civil actions. Where there was an identifiable victim he would be the most likely prosecutor. A significant number of prosecutions were also taken by private clubs and societies set up ostensibly to prevent and detect crime and to improve the morals of the community. Undoubtedly financial gain was a factor in their growth as fixed sums were often payable to those responsible for securing convictions over a whole range of offences. There was a heavy reliance, therefore, on private initiative in the prosecution of crime.
By the end of the eighteenth century it was generally accepted that private initiative was not sufficient to combat the growth in crime. From then the strategy moved very definitely in favour of the establishment of public professional police forces and public prosecution agencies. The first such police force appeared in Dublin in 1786 and they had spread throughout the whole country by 1840. While police officers quickly developed an expertise in bringing prosecutions based on their own investigations, they were not given a specific statutory responsibility for prosecutions. In effect, they prosecuted individual cases in their common law capacity as private citizens.
The absence of a statutory regime for prosecutions was reflected in the role of the Attorney General in this area. The office of Attorney General was (and is) one of the great constitutional offices of State. Although technically a member of the government, the Attorney General functioned primarily as legal advisor to the government and, frequently, as the initiator of public prosecutions. In his prosecutorial role he was assisted by the office of State solicitor in Dublin and, on a contract basis, by solicitors in private practice in other parts of the State. All of these arrangements, including the office of Attorney General, were based on the common law and they existed side by side with prosecutions taken by citizens and police officers at common law.
The first significant statutory intervention came in 1924 when the office of Attorney General was placed on a statutory basis and endowed with a monopoly over prosecutions on indictment (trial before judge and jury). However, the legislation did not seek to regulate the Attorney General’s performance of this prosecutorial function in any way. Equally, it did not interfere with the common law right of citizens and police officers to take prosecutions in summary cases (trial before judge alone). The next major statutory intervention was in 1974 when most of the Attorney General’s prosecutorial functions were transferred to the office of Director of Public Prosecutions (DPP) which was established as an independent, permanent, professional prosecutor. Apart from that the legislation did not attempt to regulate the conduct of prosecutions.
The legislation governing the national police force (Garda Siochana) was enacted in 1924 and 1925. It is silent, however, on the whole issue of prosecutions, including the role of the police in initiating prosecutions and in assisting the DPP (or the Attorney General) on the conduct of prosecutions. These vital matters have been left primarily to the common law. It is also worth noting that the Garda Siochana Bill 2004, which is currently being processed through Parliament, is equally silent on the regulation of prosecutions even though it will lay the statutory foundation for policing in Ireland for at least the next fifty years.
The net effect of the developments described above is that the prosecutorial process in Ireland is governed by a mixture of common law and statute law which subjects it to a relatively loose form of regulation. Not only is there a multiplicity of prosecutors (public and private) but each is independent of each other and enjoys a very broad measure of discretion in prosecutorial policies and decision-making. As will be seen later, there is also a high degree of compartmentalisation between the investigation, prosecution and trial stages of the criminal process.
