The Role of the Public Prosecutor in Court

By Editor - Mar 12, 2015

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Sent in By Rita Cahill

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 prosecutions 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 DPPs 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
prosecutions 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
accuseds 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.

Editor