The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
As noted above, no single body or person has a monopoly in the prosecution of criminal offences in Ireland. At common law any person (known as a common informer) is competent to initiate and conduct a criminal prosecution. This broad competence is now confined to minor offences which are tried summarily (Criminal Justice (Administration) Act, 1924, Sect. 9). For offences which will be tried by judge and jury (more serious offences) the common informer can still initiate the prosecution and maintain it up to the point where the defendant is sent for trial by judge and jury (State (Ennis) v Farrell, 1966, IR 107). At this point the prosecution will either be taken over by the public prosecutor or it will fall. Prosecutorial powers also vest in several statutory bodies which were created as integral parts of administrative regulatory schemes. Summary offences created in order to give effect to the objectives of such a scheme are normally prosecuted by the regulatory body entrusted with responsibility for the implementation of the scheme. Like the common informer these bodies are confined to summary prosecutions (TDI Metro Ltd (No. 2) v Judge Delap, 2000, 4 IR 337 and 520; Cumann Luthchleas Gael Teo v Windle, 1994, 1 IR 525). Where a statutory body fails to take a prosecution in any case which is within its remit the public prosecutor can step in and initiate the prosecution (Attorney General v Healy, 1928, IR 460).
The legislation establishing the Garda Siochana does not confer it or its members with prosecutorial powers. However, at common law each member of the force enjoys the status of a common informer (State (Cronin) v The Circuit Court Judge of the Western Circuit, 1937, IR 34; State (DPP) v District Justice Ruane, 1985, ILRM 349). As such they have the same competence as the ordinary citizen to initiate prosecutions which will be disposed of summarily (mostly minor offences). Unlike the citizen they also enjoy a whole range of investigative powers and resources which enhance their capacity to pursue large numbers of prosecutions. In practice that is exactly what they do. In terms of volume, members of the Garda Siochana handle by far the most prosecutions in Ireland. Many of these are taken by and in the name of the investigating officers concerned. In such cases the public prosecutor cannot intervene to terminate or take over the prosecution. Within the Dublin Metropolitan Area, as many as eighty percent of summary cases are prosecuted by the Garda Siochana, usually by the member who investigated the case. Outside of Dublin, cases are normally taken by a designated sergeant or inspector. Even where the prosecution is actually taken by a member of the Garda Sochana, it will often happen that it is taken in the name of the public prosecutor (People (DPP) v Roddy, 1977, IR 177). The latter has given a general consent to this practice (Letter from DPP to Garda Commissioner, dated January 9, 1975). His consent does not have to be sought in each case, unless it is one in which the defendant has made a complaint against the Garda arising out of the same incident which gave rise to the criminal complaint.
The Garda Commissioner lays down general guidelines for the conduct of prosecutions by members of the force (Report of the Public Prosecution System Study Group, o.c. at para.20). These guidelines are not normally made public. Nor are they absolutely binding on each member of the force in the sense that they cannot prevent a member from pursuing a prosecution if he decides in his capacity as a common informer that a prosecution is warranted. There has been greater transparency in the area of juvenile crime. Since the early 1960s the Garda have operated a juvenile liaison scheme aimed at using cautions as a means of keeping juveniles out of court in so far as possible. This scheme was originally based on guidelines laid down by the Garda Commissioner. It has since been put on a statutory footing (Children’s Act, 2001, Part 4). The public prosecutor has also laid down guidelines for the conduct of prosecutions (see below). These are applicable to prosecutions taken by members of the Garda.
In 1924, the Attorney General was given a monopoly over all prosecutions on indictment (Sect. 9 subs. 1 Criminal Justice (Administration) Act, 1924). This meant that only he could initiate and maintain a prosecution all the way through to trial by judge and jury. The Attorney General is also the legal advisor to the government and is closely identified with the government of the day. Ireland’s accession to the European Community in 1973 resulted in a substantial increase in his workload. This together with the recognition that the prosecution process should be insulated from even the appearance of party political influence, resulted in the creation of the new office of the Director of Public Prosecutions (DPP) to handle prosecutions on indictment. This office was created by the Prosecution of Offences Act, 1974 (Sect. 3) which also transferred most of the prosecutorial functions of the Attorney General to the DPP. The net effect is that the Attorney General’s prosecutorial competence is now confined largely to a few offences which might involve sensitive political and diplomatic considerations. It is also worth noting that there is provision for the government to make a temporary transfer of prosecutorial functions back from the DPP to the Attorney General (Sect. 5 subs. 1 Prosecution of Offences Act, 1974). This transfer can be effected in relation to criminal matters of such kind or kinds as are specified in the transfer order. The government can exercise this power whenever it is of the opinion that it is expedient in the interests of national security to do so. In practice the DPP is the sole public prosecutor in prosecutions on indictment.
The office of DPP is established statutorily as a central office occupied by a single incumbent based in Dublin. He is assisted by ‘officers and servants’ appointed by the Taoiseach (the Prime Minister). Many of these are ‘professional officers’, namely barristers and solicitors to whom much of the day-to-day decision-making on prosecutions is delegated by the DPP. All of them are based in the Dublin office, although one individual is seconded on a part-time basis to Eurojust. Apart possibly from this Eurojust member, there are no specialist prosecutors or prosecutors responsible for particular crimes. Ultimately, the DPP is responsible for the decision to prosecute or not to prosecute in an individual case, irrespective of whether it is taken by him personally or by one of his staff.
There is a subdivision within the DPP’s office that prepares cases for prosecution in the Dublin area once the initial decision on prosecution is taken. This subdivision comes under the general supervision of the chief prosecution solicitor. Outside of Dublin the chief prosecution solicitor’s function is discharged by state solicitors. These are solicitors in private practice who provide prosecution services to the DPP pursuant to contracts with the Attorney General. It is envisaged that these contracts will be transferred from the Attorney General’s office to the DPP in the near future. Where the Garda have prepared a file on a case outside Dublin which might have to be tried on indictment they will normally send it to the local State solicitor who in turn will transmit it to the DPP for a decision on prosecution. Where the DPP decides in favour of prosecution he will send the case back to the local state solicitor to prepare it for prosecution. The local state solicitor also functions as a valuable link between the Garda Siochana outside Dublin and the DPP.
The qualifications for appointment to (and procedure for removal from) the office of DPP are laid down by statute (Sect. 2 Prosecution of Offences Act, 1974). He must be a practising barrister or solicitor at the time of appointment and have practised as such for at least ten years. The incumbent is appointed by the government who must choose from a list of candidates selected by a committee composed of: the chief justice, the chairman of the Bar Council, the president of the Law Society, the Secretary of the Government and the senior legal assistant to the Attorney General (The Prosecution of Offences Act (Sect. 2) Regulations, 1974 make provision for the procedure to be followed by this committee). Before removing the incumbent from office the government must appoint a committee composed of the chief justice, a judge of the High Court and the Attorney General to investigate the health of the DPP or inquire into his conduct generally or in an individual case. The government may only remove the DPP after considering the report of this committee.
The DPP is a civil servant in the civil service of the state, as distinct from the government, (Sect. 2 subs. 4 Prosecution of Offences Act, 1974; McLoughlin v Minister for Social Welfare, 1958, IR 1). His office comes under the general remit of the Department of the Prime Minister in the sense that the annual financial estimates for the DPP forms part of the vote of the Department of the Prime Minister. There is no suggestion, however, that the DPP is in any way accountable to the Prime Minister or to any other Minister for his decisions in individual cases or even for his policies in respect of prosecutions generally. Indeed the legislation creating the office specifically states that he is independent in the performance of his functions (Sect. 2 subs. 5 Prosecution of Offences Act, 1974). It would be both improper and unlawful, therefore, for the Prime Minister or any other Minister even to attempt to apply pressure on the DPP in respect of a decision in an individual case or policy generally. There is a specific statutory outlawing representations (from persons not involved in a case) encouraging the DPP to drop a prosecution or not to initiate a prosecution (Sect. 6 Prosecution of Offences Act, 1974). Equally, the Prime Minister cannot be called to account in parliament for the decisions or policies of the DPP.
It does not follow that members of parliament do not raise prosecutorial matters from time to time and seek to put pressure on the government with respect to decisions or policies taken or adopted by the DPP. Indeed, the whole issue has come into sharp focus recently as a result of growing public concern over the DPP’s long-standing policy of refusing to give reasons for deciding not to prosecute in some highly sensitive cases. Such issues are most likely to be raised with the Minister for Justice in the context of broader concerns of law enforcement, crime prevention and fairness in the criminal justice system, all of which come under the general remit of the Minister. Nevertheless, the Minister consistently refuses to entertain those questions which relate specifically to decisions taken or policies adopted by the DPP. His invariable response to attempts to drag him into discussion of such matters is that they are matters wholly within the remit of the DPP whose independence is guaranteed by law.
The DPP’s primary function is to decide whether or not to prosecute in any individual case. As noted earlier, he does not normally get involved in the initiation or conduct of an investigation, although he may request further police investigations to be carried out in respect of a file which has been submitted to him. Before outlining how the DPP discharges his primary function it might be useful to quote in full the summary of the functions of his office as set out in his Annual Report for 1998. It reads:
- the consideration of Garda criminal investigation files submitted to the Office;
- the decision as to whether or not a prosecution should be initiated or as to whether a prosecution already initiated by the Garda Siochana should be maintained and the advising of any further investigations necessary for the commencement or continuation of a prosecution;
- the determination of the charges to be preferred and the consideration of any charges already preferred;
- the determination of the proofs and other materials to be tendered to the court and to the accused, including issues regarding the disclosure to the defense of unused material;
- the issuing of decisions regarding the many questions of law and of public policy which can arise in the course of criminal proceedings;
- conferring as necessary with counsel, state solicitors, members of the Garda Siochana and persons giving scientific or technical evidence;
- deciding whether appeals, including appeals by way of case stated, should be brought or contested, and the prosecution or defense of proceedings for judicial review and habeas corpus arising out of criminal proceedings;
- the consideration of complaints and allegations of the commission of criminal offences received from members of the public and where appropriate their transmission to the Garda commissioner;
- the consideration of files submitted by the Garda Complaints Board;
- the drafting or settling of documents necessary for the prosecution of requests for extradition into the State;
- the drafting of requests for international mutual assistance in criminal matters;
- serving on committees and attending meetings relating to prosecutions and criminal law and procedure; identifying operational problems arising in the administration of the criminal law and assisting on request on matters relevant to proposed criminal legislation; lecturing at the Garda Siochana Training College.
To these might be added: deciding whether certain cases should be sent for trial to the Special Criminal Court; giving consents for certain indictable offences to be tried summarily; electing between summary and indictable procedures for certain statutory offences; directing the initiation of certain types of prosecution which by law require his consent; the granting of certificates for appeal to the Court of Criminal Appeal to the Supreme Court on points of law of exceptional public importance; considering whether to seek a review of a sentence on grounds of leniency; and giving his views to the trial court on whether a custodial sentence would be appropriate.
The decision to prosecute or not to prosecute is at the centre of the DPP’s prosecutorial function. Yet, there is no statutory prescription governing when he should decide for or against prosecution in any individual case. Nor is his freedom in these matters governed by any statutorily prescribed policies. As noted earlier there is no basis upon which the Minister for Justice, or any other authority can issue directions to him in such matters. Although there is statutory provision for the DPP to consult with the Attorney General from time to time it is generally recognised that this does not subordinate the DPP in any way to the Attorney General in the performance of his functions (Sect. 2 subs. 6 Prosecution of Offences Act, 1974). The legal and de facto position is that it is the DPP, and the DPP alone, who determines whether to prosecute in any case or in any type of case. In these matters he is subject only to the law.
As a general rule the DPP will require evidence sufficient to establish a prima facie case of guilt against the accused before he will decide in favour of prosecution. This means the existence of admissible evidence upon which a judge or jury could conclude beyond a reasonable doubt that the accused was guilty of the offence charged. If the evidence does not reach that standard the DPP will decide against prosecution. It does not follow, however, that the DPP will always prosecute where there is a prima facie case. He still retains a discretion over the decision to prosecute even in such cases. In deciding whether or not to prosecute he will pay particular attention to the credibility and reliability of the evidence. If he considers that the evidence is very strong and a conviction is very likely it can be expected that he will prosecute. Nevertheless, the circumstances of an individual case may be such that he considers a prosecution is merited even though the prospects of a conviction are weak. Equally, there may be factors which persuade him to exercise his discretion not to prosecute in cases where a conviction would be virtually certain.
The DPP has published a list of guidelines on the decision to prosecute. These comprise three broad groups. First there are principles governing the general duty of the prosecutor, such as the duty to act honestly, fairly, impartially and objectively (Statement of General Guidelines for Prosecutors, Dublin 2001, p. 7). Second, there is a list of ‘aggravating factors’ which, if present, would render a decision to prosecute more likely. These include factors such as: the likelihood of the offence attracting a severe penalty, the accused being in a position of authority over the victim and the alleged commission of the offence while on bail. The third group consists of ‘mitigating factors’ such as: the accused being very young or very old, the availability of alternatives to prosecution, the willingness of the victim to forgive, the length and expense of the likely trial being disproportionate to the harm caused and the willingness of the accused to assist in the prosecution of other offenders.
Ultimately, these guidelines are nothing more than what they purport to be. They are not legally binding. They are merely a policy statement issued by the DPP. No executive authority has the power to force him to alter the guidelines or to require him to follow them or to depart from them in an individual case. In the exercise of his discretion, however, the DPP is accountable to the law.
The High Court has jurisdiction to review the grounds upon which the DPP makes a decision to prosecute or not to prosecute in any individual case. If, for example, the DPP adopts a policy of refusing to prosecute in any crime against property below a fixed value the High Court would almost certainly strike down that policy, and decisions based upon it, as unlawful. Equally the High Court would strike down any prosecutorial decision taken in bad faith, such as a decision not to prosecute because the accused was a friend of the DPP or a decision to prosecute because the DPP did not like the accused’s political associations. There are also indications that the High Court would strike down a decision to prosecute which departed arbitrarily from the DPP’s published guidelines on prosecution (Eviston v DPP, 2002, 3 IR 260). Apart from these extreme cases, however, the High Court is most reluctant to overturn a prosecutorial decision taken by the DPP in the exercise of his discretion (State (McCormack) v Curran, 1987, ILRM 225; H v DPP, 1994, 2 ILRM 285). It is quite different if the DPP decides to prosecute in circumstances where the accused’s right to a fair trial would be compromised. This might happen, for example, where the accused’s capacity to prepare a defense has been irreparably damaged by excessive delay between the alleged commission of the offence and the decision to prosecute. In such cases the High Court will consider that the DPP has no discretion in the matter and it will quash his decision to prosecute (PM v District Judge Malone, 2002, 2 IR 560; PO’C v DPP, 2000, 3 IR 87; JL v DPP, 2000, 3 IR 122; PP v DPP, 2000, 1 IR 403).
Closely related to the subject of the judicial review of the DPP’s discretion is the question whether he is obliged to give reasons for a decision not to prosecute. To date he has followed a consistent policy of refusing to give reasons which could make their way into the public domain. He justifies this on the basis of fairness to all parties in a criminal investigation. His position has received the endorsement of the Supreme Court which distinguishes between the role of the DPP in this matter and that of most other bodies exercising statutory powers in a manner which impact directly on specific individuals (H v DPP, 1994, 2 ILRM 285). However, the DPP is willing to give reasons for decisions not to prosecute on a confidential basis to the investigating police officers or, where relevant, the investigating officials of regulatory bodies. He also has a policy on conducting an internal review of a decision not to prosecute when requested to do so by the victim or members of the victim’s family.
The criminal process in Ireland differs from the civil process in that there is no formal recognition of the practice of settling the case in advance of the trial or in the course of the trial. In theory, once the prosecution has identified the charges appropriate to the alleged offence, it will prefer those charges in a summons or indictment and prosecute then through to a formal conviction or acquittal. Admittedly, there is provision for the prosecution to change course after having preferred the charges. For example, it enjoys a broad power to amend the indictment (or summons) at any time up until the verdict is returned. This can be used to remedy defects in the indictment (or summons) and to add a new charge or substitute an existing charge. It may also enter a nolle prosequi on any or all of the charges at any point up until the verdict is returned. In effect this means that the charge or charges in question are dropped. That, however, would not prevent the prosecution from subsequently charging the accused with the same offences at a future date, unless the nolle prosequi was entered in a manner which deprived the accused of some material advantage which had accrued as a result of pre-trial decisions made by the judge (State (O’Callaghan) v O hUadhaigh, 1977, IR 42). Typically a nolle prosequi will be entered when it becomes apparent that the charge or charges are superfluous or that the prosecution will not be able to present evidence to support them.
Clearly, this flexibility puts the prosecution in a position where it can bargain with the accused. The bargain could take the form of agreeing to drop more serious charges in return for a plea of guilty to a lesser charge or even, in more extreme cases, agreeing to give immunity from prosecution to an offender in return for his giving evidence for the prosecution against accomplices. There are no formal legal rules governing these bargaining possibilities. Indeed, officially they do not really exist at all. In practice what is likely to happen is that the defense will approach the prosecution seeking a deal. It is entirely a matter for the prosecution whether they enter into an arrangement of the sort described above. As yet there has been no judicial decision in which any such arrangement has been declared unlawful by the Irish courts. Subject to the possibility of judicial intervention in individual cases it is a matter for the DPP’s discretion whether to drop a more serious charge in return for a plea of guilty to a lesser charge or to grant immunity from prosecution in return for giving evidence against accomplices. No executive authority can override him in such decisions. Nor is he under any obligation to give reasons for such a decision or to explain it to an executive or political authority.
The Relation between the Public Prosecutor and the Minister of Justice
As noted above, no single body or person has a monopoly in the prosecution of criminal offences in Ireland. At common law any person (known as a common informer) is competent to initiate and conduct a criminal prosecution. This broad competence is now confined to minor offences which are tried summarily (Criminal Justice (Administration) Act, 1924, Sect. 9). For offences which will be tried by judge and jury (more serious offences) the common informer can still initiate the prosecution and maintain it up to the point where the defendant is sent for trial by judge and jury (State (Ennis) v Farrell, 1966, IR 107). At this point the prosecution will either be taken over by the public prosecutor or it will fall. Prosecutorial powers also vest in several statutory bodies which were created as integral parts of administrative regulatory schemes. Summary offences created in order to give effect to the objectives of such a scheme are normally prosecuted by the regulatory body entrusted with responsibility for the implementation of the scheme. Like the common informer these bodies are confined to summary prosecutions (TDI Metro Ltd (No. 2) v Judge Delap, 2000, 4 IR 337 and 520; Cumann Luthchleas Gael Teo v Windle, 1994, 1 IR 525). Where a statutory body fails to take a prosecution in any case which is within its remit the public prosecutor can step in and initiate the prosecution (Attorney General v Healy, 1928, IR 460).
The legislation establishing the Garda Siochana does not confer it or its members with prosecutorial powers. However, at common law each member of the force enjoys the status of a common informer (State (Cronin) v The Circuit Court Judge of the Western Circuit, 1937, IR 34; State (DPP) v District Justice Ruane, 1985, ILRM 349). As such they have the same competence as the ordinary citizen to initiate prosecutions which will be disposed of summarily (mostly minor offences). Unlike the citizen they also enjoy a whole range of investigative powers and resources which enhance their capacity to pursue large numbers of prosecutions. In practice that is exactly what they do. In terms of volume, members of the Garda Siochana handle by far the most prosecutions in Ireland. Many of these are taken by and in the name of the investigating officers concerned. In such cases the public prosecutor cannot intervene to terminate or take over the prosecution. Within the Dublin Metropolitan Area, as many as eighty percent of summary cases are prosecuted by the Garda Siochana, usually by the member who investigated the case. Outside of Dublin, cases are normally taken by a designated sergeant or inspector. Even where the prosecution is actually taken by a member of the Garda Sochana, it will often happen that it is taken in the name of the public prosecutor (People (DPP) v Roddy, 1977, IR 177). The latter has given a general consent to this practice (Letter from DPP to Garda Commissioner, dated January 9, 1975). His consent does not have to be sought in each case, unless it is one in which the defendant has made a complaint against the Garda arising out of the same incident which gave rise to the criminal complaint.
The Garda Commissioner lays down general guidelines for the conduct of prosecutions by members of the force (Report of the Public Prosecution System Study Group, o.c. at para.20). These guidelines are not normally made public. Nor are they absolutely binding on each member of the force in the sense that they cannot prevent a member from pursuing a prosecution if he decides in his capacity as a common informer that a prosecution is warranted. There has been greater transparency in the area of juvenile crime. Since the early 1960s the Garda have operated a juvenile liaison scheme aimed at using cautions as a means of keeping juveniles out of court in so far as possible. This scheme was originally based on guidelines laid down by the Garda Commissioner. It has since been put on a statutory footing (Children’s Act, 2001, Part 4). The public prosecutor has also laid down guidelines for the conduct of prosecutions (see below). These are applicable to prosecutions taken by members of the Garda.
In 1924, the Attorney General was given a monopoly over all prosecutions on indictment (Sect. 9 subs. 1 Criminal Justice (Administration) Act, 1924). This meant that only he could initiate and maintain a prosecution all the way through to trial by judge and jury. The Attorney General is also the legal advisor to the government and is closely identified with the government of the day. Ireland’s accession to the European Community in 1973 resulted in a substantial increase in his workload. This together with the recognition that the prosecution process should be insulated from even the appearance of party political influence, resulted in the creation of the new office of the Director of Public Prosecutions (DPP) to handle prosecutions on indictment. This office was created by the Prosecution of Offences Act, 1974 (Sect. 3) which also transferred most of the prosecutorial functions of the Attorney General to the DPP. The net effect is that the Attorney General’s prosecutorial competence is now confined largely to a few offences which might involve sensitive political and diplomatic considerations. It is also worth noting that there is provision for the government to make a temporary transfer of prosecutorial functions back from the DPP to the Attorney General (Sect. 5 subs. 1 Prosecution of Offences Act, 1974). This transfer can be effected in relation to criminal matters of such kind or kinds as are specified in the transfer order. The government can exercise this power whenever it is of the opinion that it is expedient in the interests of national security to do so. In practice the DPP is the sole public prosecutor in prosecutions on indictment.
The office of DPP is established statutorily as a central office occupied by a single incumbent based in Dublin. He is assisted by ‘officers and servants’ appointed by the Taoiseach (the Prime Minister). Many of these are ‘professional officers’, namely barristers and solicitors to whom much of the day-to-day decision-making on prosecutions is delegated by the DPP. All of them are based in the Dublin office, although one individual is seconded on a part-time basis to Eurojust. Apart possibly from this Eurojust member, there are no specialist prosecutors or prosecutors responsible for particular crimes. Ultimately, the DPP is responsible for the decision to prosecute or not to prosecute in an individual case, irrespective of whether it is taken by him personally or by one of his staff.
There is a subdivision within the DPP’s office that prepares cases for prosecution in the Dublin area once the initial decision on prosecution is taken. This subdivision comes under the general supervision of the chief prosecution solicitor. Outside of Dublin the chief prosecution solicitor’s function is discharged by state solicitors. These are solicitors in private practice who provide prosecution services to the DPP pursuant to contracts with the Attorney General. It is envisaged that these contracts will be transferred from the Attorney General’s office to the DPP in the near future. Where the Garda have prepared a file on a case outside Dublin which might have to be tried on indictment they will normally send it to the local State solicitor who in turn will transmit it to the DPP for a decision on prosecution. Where the DPP decides in favour of prosecution he will send the case back to the local state solicitor to prepare it for prosecution. The local state solicitor also functions as a valuable link between the Garda Siochana outside Dublin and the DPP.
The qualifications for appointment to (and procedure for removal from) the office of DPP are laid down by statute (Sect. 2 Prosecution of Offences Act, 1974). He must be a practising barrister or solicitor at the time of appointment and have practised as such for at least ten years. The incumbent is appointed by the government who must choose from a list of candidates selected by a committee composed of: the chief justice, the chairman of the Bar Council, the president of the Law Society, the Secretary of the Government and the senior legal assistant to the Attorney General (The Prosecution of Offences Act (Sect. 2) Regulations, 1974 make provision for the procedure to be followed by this committee). Before removing the incumbent from office the government must appoint a committee composed of the chief justice, a judge of the High Court and the Attorney General to investigate the health of the DPP or inquire into his conduct generally or in an individual case. The government may only remove the DPP after considering the report of this committee.
The DPP is a civil servant in the civil service of the state, as distinct from the government, (Sect. 2 subs. 4 Prosecution of Offences Act, 1974; McLoughlin v Minister for Social Welfare, 1958, IR 1). His office comes under the general remit of the Department of the Prime Minister in the sense that the annual financial estimates for the DPP forms part of the vote of the Department of the Prime Minister. There is no suggestion, however, that the DPP is in any way accountable to the Prime Minister or to any other Minister for his decisions in individual cases or even for his policies in respect of prosecutions generally. Indeed the legislation creating the office specifically states that he is independent in the performance of his functions (Sect. 2 subs. 5 Prosecution of Offences Act, 1974). It would be both improper and unlawful, therefore, for the Prime Minister or any other Minister even to attempt to apply pressure on the DPP in respect of a decision in an individual case or policy generally. There is a specific statutory outlawing representations (from persons not involved in a case) encouraging the DPP to drop a prosecution or not to initiate a prosecution (Sect. 6 Prosecution of Offences Act, 1974). Equally, the Prime Minister cannot be called to account in parliament for the decisions or policies of the DPP.
It does not follow that members of parliament do not raise prosecutorial matters from time to time and seek to put pressure on the government with respect to decisions or policies taken or adopted by the DPP. Indeed, the whole issue has come into sharp focus recently as a result of growing public concern over the DPP’s long-standing policy of refusing to give reasons for deciding not to prosecute in some highly sensitive cases. Such issues are most likely to be raised with the Minister for Justice in the context of broader concerns of law enforcement, crime prevention and fairness in the criminal justice system, all of which come under the general remit of the Minister. Nevertheless, the Minister consistently refuses to entertain those questions which relate specifically to decisions taken or policies adopted by the DPP. His invariable response to attempts to drag him into discussion of such matters is that they are matters wholly within the remit of the DPP whose independence is guaranteed by law.
The DPP’s primary function is to decide whether or not to prosecute in any individual case. As noted earlier, he does not normally get involved in the initiation or conduct of an investigation, although he may request further police investigations to be carried out in respect of a file which has been submitted to him. Before outlining how the DPP discharges his primary function it might be useful to quote in full the summary of the functions of his office as set out in his Annual Report for 1998. It reads:
- the consideration of Garda criminal investigation files submitted to the Office;
- the decision as to whether or not a prosecution should be initiated or as to whether a prosecution already initiated by the Garda Siochana should be maintained and the advising of any further investigations necessary for the commencement or continuation of a prosecution;
- the determination of the charges to be preferred and the consideration of any charges already preferred;
- the determination of the proofs and other materials to be tendered to the court and to the accused, including issues regarding the disclosure to the defense of unused material;
- the issuing of decisions regarding the many questions of law and of public policy which can arise in the course of criminal proceedings;
- conferring as necessary with counsel, state solicitors, members of the Garda Siochana and persons giving scientific or technical evidence;
- deciding whether appeals, including appeals by way of case stated, should be brought or contested, and the prosecution or defense of proceedings for judicial review and habeas corpus arising out of criminal proceedings;
- the consideration of complaints and allegations of the commission of criminal offences received from members of the public and where appropriate their transmission to the Garda commissioner;
- the consideration of files submitted by the Garda Complaints Board;
- the drafting or settling of documents necessary for the prosecution of requests for extradition into the State;
- the drafting of requests for international mutual assistance in criminal matters;
- serving on committees and attending meetings relating to prosecutions and criminal law and procedure; identifying operational problems arising in the administration of the criminal law and assisting on request on matters relevant to proposed criminal legislation; lecturing at the Garda Siochana Training College.
To these might be added: deciding whether certain cases should be sent for trial to the Special Criminal Court; giving consents for certain indictable offences to be tried summarily; electing between summary and indictable procedures for certain statutory offences; directing the initiation of certain types of prosecution which by law require his consent; the granting of certificates for appeal to the Court of Criminal Appeal to the Supreme Court on points of law of exceptional public importance; considering whether to seek a review of a sentence on grounds of leniency; and giving his views to the trial court on whether a custodial sentence would be appropriate.
The decision to prosecute or not to prosecute is at the centre of the DPP’s prosecutorial function. Yet, there is no statutory prescription governing when he should decide for or against prosecution in any individual case. Nor is his freedom in these matters governed by any statutorily prescribed policies. As noted earlier there is no basis upon which the Minister for Justice, or any other authority can issue directions to him in such matters. Although there is statutory provision for the DPP to consult with the Attorney General from time to time it is generally recognised that this does not subordinate the DPP in any way to the Attorney General in the performance of his functions (Sect. 2 subs. 6 Prosecution of Offences Act, 1974). The legal and de facto position is that it is the DPP, and the DPP alone, who determines whether to prosecute in any case or in any type of case. In these matters he is subject only to the law.
As a general rule the DPP will require evidence sufficient to establish a prima facie case of guilt against the accused before he will decide in favour of prosecution. This means the existence of admissible evidence upon which a judge or jury could conclude beyond a reasonable doubt that the accused was guilty of the offence charged. If the evidence does not reach that standard the DPP will decide against prosecution. It does not follow, however, that the DPP will always prosecute where there is a prima facie case. He still retains a discretion over the decision to prosecute even in such cases. In deciding whether or not to prosecute he will pay particular attention to the credibility and reliability of the evidence. If he considers that the evidence is very strong and a conviction is very likely it can be expected that he will prosecute. Nevertheless, the circumstances of an individual case may be such that he considers a prosecution is merited even though the prospects of a conviction are weak. Equally, there may be factors which persuade him to exercise his discretion not to prosecute in cases where a conviction would be virtually certain.
The DPP has published a list of guidelines on the decision to prosecute. These comprise three broad groups. First there are principles governing the general duty of the prosecutor, such as the duty to act honestly, fairly, impartially and objectively (Statement of General Guidelines for Prosecutors, Dublin 2001, p. 7). Second, there is a list of ‘aggravating factors’ which, if present, would render a decision to prosecute more likely. These include factors such as: the likelihood of the offence attracting a severe penalty, the accused being in a position of authority over the victim and the alleged commission of the offence while on bail. The third group consists of ‘mitigating factors’ such as: the accused being very young or very old, the availability of alternatives to prosecution, the willingness of the victim to forgive, the length and expense of the likely trial being disproportionate to the harm caused and the willingness of the accused to assist in the prosecution of other offenders.
Ultimately, these guidelines are nothing more than what they purport to be. They are not legally binding. They are merely a policy statement issued by the DPP. No executive authority has the power to force him to alter the guidelines or to require him to follow them or to depart from them in an individual case. In the exercise of his discretion, however, the DPP is accountable to the law.
The High Court has jurisdiction to review the grounds upon which the DPP makes a decision to prosecute or not to prosecute in any individual case. If, for example, the DPP adopts a policy of refusing to prosecute in any crime against property below a fixed value the High Court would almost certainly strike down that policy, and decisions based upon it, as unlawful. Equally the High Court would strike down any prosecutorial decision taken in bad faith, such as a decision not to prosecute because the accused was a friend of the DPP or a decision to prosecute because the DPP did not like the accused’s political associations. There are also indications that the High Court would strike down a decision to prosecute which departed arbitrarily from the DPP’s published guidelines on prosecution (Eviston v DPP, 2002, 3 IR 260). Apart from these extreme cases, however, the High Court is most reluctant to overturn a prosecutorial decision taken by the DPP in the exercise of his discretion (State (McCormack) v Curran, 1987, ILRM 225; H v DPP, 1994, 2 ILRM 285). It is quite different if the DPP decides to prosecute in circumstances where the accused’s right to a fair trial would be compromised. This might happen, for example, where the accused’s capacity to prepare a defense has been irreparably damaged by excessive delay between the alleged commission of the offence and the decision to prosecute. In such cases the High Court will consider that the DPP has no discretion in the matter and it will quash his decision to prosecute (PM v District Judge Malone, 2002, 2 IR 560; PO’C v DPP, 2000, 3 IR 87; JL v DPP, 2000, 3 IR 122; PP v DPP, 2000, 1 IR 403).
Closely related to the subject of the judicial review of the DPP’s discretion is the question whether he is obliged to give reasons for a decision not to prosecute. To date he has followed a consistent policy of refusing to give reasons which could make their way into the public domain. He justifies this on the basis of fairness to all parties in a criminal investigation. His position has received the endorsement of the Supreme Court which distinguishes between the role of the DPP in this matter and that of most other bodies exercising statutory powers in a manner which impact directly on specific individuals (H v DPP, 1994, 2 ILRM 285). However, the DPP is willing to give reasons for decisions not to prosecute on a confidential basis to the investigating police officers or, where relevant, the investigating officials of regulatory bodies. He also has a policy on conducting an internal review of a decision not to prosecute when requested to do so by the victim or members of the victim’s family.
The criminal process in Ireland differs from the civil process in that there is no formal recognition of the practice of settling the case in advance of the trial or in the course of the trial. In theory, once the prosecution has identified the charges appropriate to the alleged offence, it will prefer those charges in a summons or indictment and prosecute then through to a formal conviction or acquittal. Admittedly, there is provision for the prosecution to change course after having preferred the charges. For example, it enjoys a broad power to amend the indictment (or summons) at any time up until the verdict is returned. This can be used to remedy defects in the indictment (or summons) and to add a new charge or substitute an existing charge. It may also enter a nolle prosequi on any or all of the charges at any point up until the verdict is returned. In effect this means that the charge or charges in question are dropped. That, however, would not prevent the prosecution from subsequently charging the accused with the same offences at a future date, unless the nolle prosequi was entered in a manner which deprived the accused of some material advantage which had accrued as a result of pre-trial decisions made by the judge (State (O’Callaghan) v O hUadhaigh, 1977, IR 42). Typically a nolle prosequi will be entered when it becomes apparent that the charge or charges are superfluous or that the prosecution will not be able to present evidence to support them.
Clearly, this flexibility puts the prosecution in a position where it can bargain with the accused. The bargain could take the form of agreeing to drop more serious charges in return for a plea of guilty to a lesser charge or even, in more extreme cases, agreeing to give immunity from prosecution to an offender in return for his giving evidence for the prosecution against accomplices. There are no formal legal rules governing these bargaining possibilities. Indeed, officially they do not really exist at all. In practice what is likely to happen is that the defense will approach the prosecution seeking a deal. It is entirely a matter for the prosecution whether they enter into an arrangement of the sort described above. As yet there has been no judicial decision in which any such arrangement has been declared unlawful by the Irish courts. Subject to the possibility of judicial intervention in individual cases it is a matter for the DPP’s discretion whether to drop a more serious charge in return for a plea of guilty to a lesser charge or to grant immunity from prosecution in return for giving evidence against accomplices. No executive authority can override him in such decisions. Nor is he under any obligation to give reasons for such a decision or to explain it to an executive or political authority.
