2 The Prosecution System in Ireland

2.1 The prosecution system in Ireland is not described or set out fully in any one document. It is grounded in the Constitution of Ireland, 1937 and in statute law, notably the Prosecution of Offences Act, 1974, which established the office of Director of Public Prosecutions. The prosecution system in Ireland has developed from common law tradition and many important practices and rules in Ireland have their basis in common law, that is, judge-made law.

2.2 Article 30.3 of the Constitution of Ireland provides as follows:

"All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."

2.3 Section 9(2) of the Criminal Justice (Administration) Act, 1924 conferred on the Attorney General the power to conduct all prosecutions in any court of summary jurisdiction except those which were prosecuted by a Minister, Department of State or other person authorised by law.

2.4 The Prosecution of Offences Act, 1974 established the Director of Public Prosecutions as an officer authorised in accordance with law to act for the purpose of prosecuting in the name of the People as provided for in Article 30.3 of the Constitution. Section 3(1) of the 1974 Act provides as follows:

"Subject to the provisions of this Act, the Director shall perform all the functions capable of being performed in relation to criminal matters and in relation to election petitions and referendum petitions by the Attorney General immediately before the commencement of this section and references to the Attorney General in any statute or statutory instrument in force immediately before such commencement shall be construed accordingly."

2.5 The 1974 Act thereby conferred on the Director of Public Prosecutions the function of prosecuting both on indictment and summarily. All criminal prosecutions taken on indictment are taken in the name of the People and are prosecuted at the suit of the Director, except for a limited category of offences still prosecuted at the suit of the Attorney General.

2.6 Section 2(5) of the 1974 Act provides that the Director shall be independent in the performance of his functions. Section 6 of the Act underscores that independence by making it unlawful for persons other than defendants or complainants in criminal proceedings, or persons likely to be defendants, or their legal or medical advisers, members of their family or social workers, to communicate with the Director or his officers for the purpose of influencing the making of a decision to withdraw or not to initiate criminal proceedings or any particular charge in criminal proceedings.

2.7 The Director independently enforces the criminal law in the courts on behalf of the People of Ireland. To this end he directs and supervises public prosecutions on indictment in the courts and gives general direction and advice to the Garda Síochána in relation to summary cases and specific direction in such cases where requested. The Director decides whether to charge people with criminal offences, and what the charges should be. The Office of the Director of Public Prosecutions has defined its mission as "to provide on behalf of the People of Ireland a prosecution service that is independent, fair and effective".

2.8 The Office of the Director of Public Prosecutions consists of two legal divisions, the Directing Division and the Solicitors Division. There is also an Administration Division that provides the organisational, infrastructural, administrative and information services required by the Office. The Directing Division comprises a small number of professional officers, both barristers and solicitors, whose principal function is to make submissions to the Director and to take decisions in relation to the initiation or continuation of criminal prosecutions and to give ongoing instructions and directions to the Solicitors Division, local State Solicitors and counsel regarding the conduct of criminal proceedings.

2.9 The work of appearing for the Director in court is carried out either by the full-time legal staff in the Solicitors Division who represent the Director in all courts in Dublin, or by the local State Solicitors in courts outside Dublin. The Solicitors Division is headed by the Chief Prosecution Solicitor who acts as solicitor to the Director. The Division consists of solicitors and legal executives whose responsibilities include:

2.10 Criminal cases are divided into two types - indictable offences and summary offences.

Indictable offences:

Summary offences:

2.11 The conduct of trials on indictment is handled by counsel practising at the bar who are engaged to represent the Director on a case by case basis. Counsel prosecute in accordance with the Director's instructions.

2.12 Most summary prosecutions brought in the District Court are brought in the name of the Director. In practice the great majority are presented by officers of the Garda Síochána without specific reference to the Director's Office except in cases where the Garda Síochána are required to seek a direction from the Director (see paragraph 7.4, 7.7 and 13.3 below) or where for some other reason they seek instructions. Under section 8 of the Garda Síochána Act 2005, members of the Garda Síochána who prosecute summarily in the course of their official duties must do so in the name of the Director of Public Prosecutions and must comply with any directions given by the Director, whether of a general or specific nature. The Director may assume the conduct of a prosecution instituted by a Garda at any time. Pending the bringing into force of this section summary prosecutions instituted by members of the Garda Síochána remain subject to general directions which have been issued by the Garda Commissioner following consultation with the Director. On the coming into force of the section general directions governing the conduct of prosecutions in his name will be issued by the Director. At time of writing it is expected that the section will be brought into force later in 2006.

2.13 Except for certain duties which arise under the Garda Síochána (Complaints) Act, 1986 where an investigation is being carried out into an alleged offence by a member of the Garda Síochána, the Director of Public Prosecutions has no investigative function. In the Irish criminal justice system the investigation of criminal offences is the function of the Garda Síochána. In addition there are specialised investigating authorities in relation to certain particular categories of crime, including the Competition Authority in relation to offences against the Competition Acts; the investigation branch of the Revenue Commissioners in relation to revenue offences; the Health and Safety Authority in relation to offences relating to safety and welfare at work; and the Office of Director of Corporate Enforcement which deals with offences against company law. This list is not exhaustive. Complaints of criminal conduct made to the Director cannot be investigated by him but are transmitted to the Garda Commissioner or to one of the other investigation authorities to take the appropriate decisions and action. While the Director has no investigative function, he and his Office cooperate regularly with the Garda Síochána and the other investigating agencies during the course of criminal investigations, particularly in furnishing relevant legal and prosecutorial advice. The relationship between prosecutors and investigators is dealt with more fully in Chapter 7.

2.14 Many investigative agencies have the power to prosecute summarily without reference to the Director. The sole power to prosecute on indictment rests with the Director (apart from cases still dealt with by the Attorney General). When an offence is or may be sufficiently serious to be tried on indictment the investigator sends a file to the Director. The decision whether to initiate or continue a criminal prosecution is made by the Director or one of his professional officers who decide independently of those who were responsible for the investigation what, if any, charges to bring. In some cases a summary prosecution may be directed. The question of summary prosecutions is dealt with in Chapter 13.