6.1 The choice of charge is an important function that is generally within the exclusive domain of the prosecutor.
6.2 In many cases the evidence will disclose a number of possible offences. Care should be taken to ensure that the charge or charges adequately and appropriately reflect the seriousness of the criminal conduct for which there is evidence and will provide the court with an appropriate basis for sentence. In the ordinary course the charge or charges laid will be the most serious disclosed by the evidence. But there is no legal obligation to lay the most serious charge. Similar considerations apply to the choice of charge as relate to the decision to prosecute itself, as elaborated in Chapter 4, and there may be circumstances which justify preferring a lesser charge than the evidence would support.
6.3 The prosecutor must not "over-charge". Charges more serious than are justified by the evidence should not be preferred with the intention of encouraging the defendant to plead guilty to a lesser charge. The prosecutor should prefer only charges which are justified by the facts as then known. In particular, the question of whether in a homicide case the appropriate charge is one of murder or manslaughter has to be given the most careful consideration.
6.4 Where possible the prosecutor should avoid preferring too many charges arising out of the same set of facts. Ideally the prosecutor should aim to select a single charge which adequately reflects the nature and extent of the criminal conduct but in any event the number of charges should be kept as low as is possible having regard to the principles already referred to. The prosecutor should consider selecting offences to be prosecuted which will enable the case to be presented in a clear and simple way. Where evidence discloses a large number of offences of a similar nature, the use of representative counts should be carefully considered. A multiplicity of charges can unnecessarily complicate the trial process. It is important to strike a balance between ensuring that the indictment is not overloaded and ensuring that the indictment adequately reflects the totality of the criminality involved in the case.
6.5 Where there are a large number of persons accused of offences arising from the same transaction or series of transactions or where an accused person is charged with a number of offences, the prosecutor should give careful consideration to whether the preferred outcome is joint or separate trials. The factors to be considered include the desirability of keeping trials as simple and short as possible, the need to present a clear, coherent and accurate account of what happened, and the desirability of being able to present all relevant and admissible evidence, including similar fact evidence.
6.6 Conspiracy charges are generally not appropriate where the conduct in question amounts to a substantive offence and there is sufficient reliable evidence to support a charge for that offence. But there are occasions when to bring a conspiracy charge is the only adequate and appropriate response on the available evidence. Where it is proposed to lay or proceed with conspiracy charges jointly against a number of accused, the prosecutor should be aware of the risk of the trial becoming unduly complex or lengthy.
6.7 In deciding on the appropriate charge the Director or his officers should consider the views of the Garda Síochána, the solicitor, and counsel if instructed. In summary prosecutions the choice of charge will in most cases be made by a Garda officer, who should act in accordance with these general guidelines and in accordance with such directions as are issued from time to time by the Director, or pending the bringing into force of section 8 of the Garda Síochána Act 2005, by the Commissioner on the advice of the Director. Questions relating to the respective role of the Garda Síochána and the Director are dealt with in greater detail in Chapter 7.
6.8 Where an accused person has been detained in custody prior to the first court appearance, the prosecutor should, in addition to considering the charges to be presented to the court, also consider any continuing need to remand that person in custody. The prosecutor should only request that the court remands an accused person in custody where it is determined (having given due consideration of the nature and gravity of the alleged offence and any relevant criminal history of the accused and having considered the views of the Garda Síochána) that there is a risk of:
The Garda Síochána should consider whether there are any bail conditions which could sufficiently counter the risks identified by them in relation to the above grounds.
6.9 The prosecutor should consider seeking a revocation of bail where there is a serious breach of a condition attached to its grant.