7 The Prosecutor and the Investigator

7.1 The investigation and prosecution of offences are separate and distinct functions within the criminal justice system. The Director as a general rule has no investigative function and no power to direct the Garda Síochána or other agencies in their investigations. The Director may advise investigators in relation to the sufficiency of evidence to support nominated charges and the appropriateness of charges or in relation to legal issues arising in the course of investigation. While the Director is not responsible for the conduct of investigations he is free to indicate what evidence would be required to sustain a prosecution.

7.2 Where the Director believes that a criminal offence may have been committed he may also refer the matter to the Garda Síochána. Investigation is, however, a matter for the Garda Síochána or the investigation agency. Examples where such a request may be made include:

• matters brought directly to the attention of the Director by an individual or statutory body alleging that a criminal offence has taken place;
• matters brought to the attention of the Director by the courts, Tribunals of Inquiry or other public bodies which have arisen or come to their attention during the course of proceedings; and
• matters arising from a review of evidence by a prosecutor which suggests that criminal offences other than those on which a direction has been sought may have been committed.

7.3 As a general rule requests for advice from the Director of Public Prosecutions by the Garda Síochána or other investigators should be made in writing. This includes advice in relation to:

1. what criminal charges are open;
2. whether there is sufficient evidence to support a charge;
3. the admissibility of evidence;
4. the most appropriate charge in the circumstances;
5. the present state of the law;
6. whether a matter should be disposed of summarily or on indictment;
7. cases stated or judicial review;
8. the disclosure of evidence;
9. any summary matter which the Garda Síochána propose discontinuing.

7.4 The Garda Síochána should where possible seek directions before charging all indictable cases or cases which are likely to be heard on indictment. Where an accused person is charged before directions are sought, paragraph 7.7 should be complied with.

7.5 In the following cases a charge should not be preferred without the prior directions of the Office of the Director of Public Prosecutions:

1. homicide;
2. other cases involving a fatality, including fatal road traffic and workplace accidents;
3. sexual offences;
4. cases under the Official Secrets Act, 1963;
5. offences which are scheduled under the Offences Against the State Acts, 1939 to 1998;
6. terrorist offences and offences alleged to have been carried out by terrorists;
7. any case in which it is proposed to seek a trial in the Special Criminal Court;
8. bribery and corruption;
9. cases involving serious allegations against members of the Garda Síochána;
10. offences committed by public officials other than those of a very minor nature;
11. genocide, war crimes, crimes against humanity, piracy and hijacking;
12. cases in which it is provided by statute that proceedings may not be commenced without the consent of the Director.

7.6 Where the Garda Síochána receive a complaint in relation to any of the offences referred to in paragraph 7.5 and, having investigated the matter and having identified a suspect, do not consider a prosecution to be warranted, a file should nonetheless be sent to the Director for a decision whether to prosecute.

7.7 Where a charge has been preferred without the directions of the Director's Office, and the case is proceeding on indictment, directions should be sought prior to any sending forward for trial. The Director, or one of his professional officers will consider whether the prosecution should proceed or whether any of the charges should be amended, withdrawn, or other charges added.

7.8 The following matters must be referred by the Garda Síochána to the Director's Office for advice and, where appropriate, for directions in accordance with detailed instructions which have been issued to members of the force:

1. any case in which it is proposed to seek the accused's extradition;
2. whether or not an accomplice should be granted immunity;
3. whether a judge of the District or Circuit Court should be asked to state a case;
4. whether a judicial review should be sought or defended;
5. any case in which the Director's sanction or approval is required for the commencement of proceedings;
6. matters of particular sensitivity or unusual public interest.

7.9 Arrangements are in place to ensure that a member of the Director's staff is contactable by telephone outside office hours to deal with urgent cases. However, directions to charge should be given by telephone only in exceptional cases where for very good reason it is essential to charge a person before a written file can be prepared.