The Relation between the Public Prosecutor

and the Minister of Justice

By Editor - Mar 12, 2015

court house

Sent By Rita Cahill

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 (Childrens 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. Irelands 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 Generals
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 DPPs 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 solicitors 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 Generals 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 DPPs 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 DPPs 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 DPPs 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 accuseds political
associations. There are also indications that the High Court would strike down a decision
to prosecute which departed arbitrarily from the DPPs 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 accuseds right to a fair trial would be compromised. This might happen, for
example, where the accuseds 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; POC 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 DPPs 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 victims 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 (OCallaghan) 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 DPPs 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.

Editor