The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
The DPP is a dominus litis. However, it would be very rare for either he or any of his officers to prosecute a case in court in person. His role is normally confined to determining matters such as: whether a prosecution should be initiated and/or maintained, what charges should be preferred, whether the case should be tried summarily or on indictment, whether it should be tried in the ordinary courts or in the Special Criminal Court, what proofs and other materials should be tendered to the court as part of the prosecution case, what materials should be disclosed to the defense and determining the prosecution’s position on any points of law or issues of public policy which may arise in the course of the case. His decisions on such matters are conveyed to and implemented by those responsible for preparing a case for and presenting the case in court.
The prosecution case is presented in court by independent counsel in private practice appointed on a case by case basis by the DPP. The DPP is under a statutory obligation to ensure a fair and equitable distribution of cases among barristers who have declared a willingness to act for the DPP in prosecutions (Sect. 7 subs. 2 Prosecution of Offences Act, 1974). In Ireland the legal profession is divided into barristers (counsel) and solicitors. Generally, a solicitor works closely with the client, prepares the paperwork, and gives instructions to and provides back up for the barrister. The barrister conducts the oral proceedings in court by examining witnesses for his client, cross-examining witnesses called by the other side, presenting other evidence for his client, making oral submissions on the law for the benefit of his client and addressing the jury for his client. In prosecutions the DPP stands in the position of the client. In the Dublin Metropolitan Area he is represented by a solicitor from the office of chief prosecution solicitor (a unit within the Office of DPP). Outside Dublin he is represented by the local state solicitor acting on a contract basis to (currently) the Attorney General. Whether inside or outside Dublin the solicitor will act in support of the barrister in private practice who will have been appointed to the case by the DPP.
As noted earlier the decision on what charges to prefer is a matter for the DPP. It will often happen that charges will already have been preferred against the accused by the Garda Siochana before the case is sent on to the DPP’s office. The DPP can maintain these charges or he may change them. Although he is under no obligation to charge the most serious offences that the evidence will bear, it is normal practice to do so. Equally, it is normal practice for the indictment to include lesser offences as a fallback position. The need for this practice has declined in recent years as a result of developments in the law which permit a jury to bring in a verdict of guilty to a lesser offence which is not specified on the indictment but which is supported by the allegations contained in the indictment.
The trial judge enjoys a broad power to remedy any defects in the indictment at any stage of the trial so long as he is satisfied that any such amendment would not cause injustice to the accused (Sect. 6 subs. 1 Criminal Justice (Administration) Act, 1924). This power is normally used to cure technical defects in the indictment. It might also be used to add a new charge to the indictment or to substitute an existing charge on the indictment. Such changes will be triggered by an application from the DPP and will only be accepted by the judge if he is satisfied that they will not cause prejudice to the accused. In the Irish adversarial trial system it is highly unlikely that the judge would move on his own initiative to make such a substantial change on the indictment. Moreover, it is virtually impossible to foresee a situation in which he would add or substitute a more serious charge than any already included in the indictment.
The examination and cross-examination of witnesses are conducted on an adversarial basis. Counsel for the prosecution will open the trial with an oral statement giving a summary of the facts that he intends to prove against the accused. He will follow this by calling and examining his witnesses one by one. At the end of each examination the witness in question can be cross-examined by counsel for the accused. At the close of the prosecution case the defense may make a claim of ‘no case to answer’. In effect this means that the prosecution has failed to present sufficient evidence upon which a jury could find the accused guilty beyond a reasonable doubt of any of the charges on the indictment. If this fails the defense will have to decide whether to call evidence or to let the case go to the jury for a decision. If the defense decides to call evidence the defense counsel will call witnesses in the same manner as the prosecution. Defense counsel will examine these witnesses and they can be cross-examined by the prosecution. The defense does not have to call the accused as a witness but if they do he will be examined and cross-examined in the same manner as any other defense witness. The judge may intervene at any stage to put a question to a witness for the purpose of clarification. However, he will keep this to a minimum. The judge does not normally seek to have someone called as a witness where that person has not been called either by the prosecution or the defense.
Both prosecution and defense counsel will make closing addresses to the jury. The purpose of these addresses is to summarise their respective cases in the light of the evidence and arguments adduced at the trial. The actually summing up of the evidence for both sides is done by the judge when counsel for the prosecution and defense have completed their addresses.
Since the jury does not have any function in the matter of sentence, the issue of what sentence should or should not be applied would not normally arise in the course of the prosecution’s address to the jury. The issue of what sentence to impose upon conviction is a matter solely for the judge. Before imposing sentence the judge will listen to representations from defense counsel in favour of leniency. As a result of a recent change in the law, the judge is also bound to receive evidence from the victim about the impact that the offence has had on his life if the victim requests to give such evidence (Sect. 5 subs. 1 Criminal Justice Act, 1993). (People (DPP) v MC, Court of Criminal Appeal, June 16, 1995). There has never been a practice in Ireland of the prosecution making representations to the court in favour of a heavy sentence, or any particular type of sentence (People (DPP) v Sheedy, Court of Criminal Appeal, October 15, 1999). Their role is normally confined to giving a summary of the facts surrounding the commission of the offence (in a case where the accused has pleaded guilty) and a statement of the accused’s criminal record. As will be seen below, however, the prosecution now has the power to seek a review of the sentence imposed by the judge if they consider that it is too lenient.
The Role of the Public Prosecutor in Court
The DPP is a dominus litis. However, it would be very rare for either he or any of his officers to prosecute a case in court in person. His role is normally confined to determining matters such as: whether a prosecution should be initiated and/or maintained, what charges should be preferred, whether the case should be tried summarily or on indictment, whether it should be tried in the ordinary courts or in the Special Criminal Court, what proofs and other materials should be tendered to the court as part of the prosecution case, what materials should be disclosed to the defense and determining the prosecution’s position on any points of law or issues of public policy which may arise in the course of the case. His decisions on such matters are conveyed to and implemented by those responsible for preparing a case for and presenting the case in court.
The prosecution case is presented in court by independent counsel in private practice appointed on a case by case basis by the DPP. The DPP is under a statutory obligation to ensure a fair and equitable distribution of cases among barristers who have declared a willingness to act for the DPP in prosecutions (Sect. 7 subs. 2 Prosecution of Offences Act, 1974). In Ireland the legal profession is divided into barristers (counsel) and solicitors. Generally, a solicitor works closely with the client, prepares the paperwork, and gives instructions to and provides back up for the barrister. The barrister conducts the oral proceedings in court by examining witnesses for his client, cross-examining witnesses called by the other side, presenting other evidence for his client, making oral submissions on the law for the benefit of his client and addressing the jury for his client. In prosecutions the DPP stands in the position of the client. In the Dublin Metropolitan Area he is represented by a solicitor from the office of chief prosecution solicitor (a unit within the Office of DPP). Outside Dublin he is represented by the local state solicitor acting on a contract basis to (currently) the Attorney General. Whether inside or outside Dublin the solicitor will act in support of the barrister in private practice who will have been appointed to the case by the DPP.
As noted earlier the decision on what charges to prefer is a matter for the DPP. It will often happen that charges will already have been preferred against the accused by the Garda Siochana before the case is sent on to the DPP’s office. The DPP can maintain these charges or he may change them. Although he is under no obligation to charge the most serious offences that the evidence will bear, it is normal practice to do so. Equally, it is normal practice for the indictment to include lesser offences as a fallback position. The need for this practice has declined in recent years as a result of developments in the law which permit a jury to bring in a verdict of guilty to a lesser offence which is not specified on the indictment but which is supported by the allegations contained in the indictment.
The trial judge enjoys a broad power to remedy any defects in the indictment at any stage of the trial so long as he is satisfied that any such amendment would not cause injustice to the accused (Sect. 6 subs. 1 Criminal Justice (Administration) Act, 1924). This power is normally used to cure technical defects in the indictment. It might also be used to add a new charge to the indictment or to substitute an existing charge on the indictment. Such changes will be triggered by an application from the DPP and will only be accepted by the judge if he is satisfied that they will not cause prejudice to the accused. In the Irish adversarial trial system it is highly unlikely that the judge would move on his own initiative to make such a substantial change on the indictment. Moreover, it is virtually impossible to foresee a situation in which he would add or substitute a more serious charge than any already included in the indictment.
The examination and cross-examination of witnesses are conducted on an adversarial basis. Counsel for the prosecution will open the trial with an oral statement giving a summary of the facts that he intends to prove against the accused. He will follow this by calling and examining his witnesses one by one. At the end of each examination the witness in question can be cross-examined by counsel for the accused. At the close of the prosecution case the defense may make a claim of ‘no case to answer’. In effect this means that the prosecution has failed to present sufficient evidence upon which a jury could find the accused guilty beyond a reasonable doubt of any of the charges on the indictment. If this fails the defense will have to decide whether to call evidence or to let the case go to the jury for a decision. If the defense decides to call evidence the defense counsel will call witnesses in the same manner as the prosecution. Defense counsel will examine these witnesses and they can be cross-examined by the prosecution. The defense does not have to call the accused as a witness but if they do he will be examined and cross-examined in the same manner as any other defense witness. The judge may intervene at any stage to put a question to a witness for the purpose of clarification. However, he will keep this to a minimum. The judge does not normally seek to have someone called as a witness where that person has not been called either by the prosecution or the defense.
Both prosecution and defense counsel will make closing addresses to the jury. The purpose of these addresses is to summarise their respective cases in the light of the evidence and arguments adduced at the trial. The actually summing up of the evidence for both sides is done by the judge when counsel for the prosecution and defense have completed their addresses.
Since the jury does not have any function in the matter of sentence, the issue of what sentence should or should not be applied would not normally arise in the course of the prosecution’s address to the jury. The issue of what sentence to impose upon conviction is a matter solely for the judge. Before imposing sentence the judge will listen to representations from defense counsel in favour of leniency. As a result of a recent change in the law, the judge is also bound to receive evidence from the victim about the impact that the offence has had on his life if the victim requests to give such evidence (Sect. 5 subs. 1 Criminal Justice Act, 1993). (People (DPP) v MC, Court of Criminal Appeal, June 16, 1995). There has never been a practice in Ireland of the prosecution making representations to the court in favour of a heavy sentence, or any particular type of sentence (People (DPP) v Sheedy, Court of Criminal Appeal, October 15, 1999). Their role is normally confined to giving a summary of the facts surrounding the commission of the offence (in a case where the accused has pleaded guilty) and a statement of the accused’s criminal record. As will be seen below, however, the prosecution now has the power to seek a review of the sentence imposed by the judge if they consider that it is too lenient.
