8 The Role of the Prosecutor in Court

8.1 The role of the prosecutor is a specialised and demanding one which is frequently misunderstood. The public, victims and witnesses may have expectations as to how the prosecutor should perform his or her functions which cannot be met. A prosecutor does not have a "client" in the conventional sense and acts in the public interest. He or she is not the legal representative for victims of crime and does not act as their legal adviser.

8.2 The aim of the prosecutor is to ensure that a just verdict is reached at the end of the trial process and not to strive for a conviction at all costs. The purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a judge or jury what the prosecution considers to be credible evidence relevant to what is alleged to be a crime. Unless the prosecution has satisfied the judge or jury of the accused's guilt beyond all reasonable doubt the appropriate verdict is one of "not guilty".

8.3 The duty of the prosecutor to strive for a just verdict does not mean that the prosecutor ought not to prosecute the case vigorously. It is the prosecutor's duty to present the case fairly, but also skillfully and firmly, to seek to have the whole of the relevant and admissible evidence placed before the court, and to assist the court with submissions which are appropriate to the facts. The prosecutor will be entitled firmly and vigorously to urge the prosecution's view about a particular issue and to test, and where appropriate, to attack the case advanced on behalf of the accused.

8.4 A prosecutor must not argue any proposition of fact that is not an accurate and fair interpretation of the evidence or knowingly advance any proposition of law that does not accurately represent the law. If there is contrary authority to the propositions of law being put to the court by the prosecutor of which the prosecutor is aware, that authority must be brought to the court's attention.

8.5 A prosecutor should call, as part of the prosecution case, all credible, relevant and admissible evidence unless:

  1. the defence consents to the evidence not being adduced;
  2. a particular matter has been established by the calling of other evidence and there is no prejudice to the accused in not calling a particular witness;
  3. a witness is unavailable.

8.6 The prosecutor is not obliged to call evidence he or she does not consider to be credible, reliable and trustworthy: The State (Director of Public Prosecutions) v. District Justice McMenamin, (High Court, Barron J., 23 March 1996). The statement of a witness it is not intended to call for the prosecution should not be included in the book of evidence. In the event that the prosecutor decides not to call a witness whose statement is contained in the book of evidence the defence should be informed as soon as reasonably practicable and, where possible and if the defence so requests, arrangements should be made to have the witness in court for the defence to use as part of its case.

8.7 In the case of Ward v. Special Criminal Court (1998 2 ILRM 493), the Supreme Court stated:

"It is agreed on all sides that where the prosecution has a statement of a person who may be in a position to give material evidence, whom they do not want to call as a witness, they are under a duty to make that person available as a witness for the defence and in general, to make available any statements that he may have given. We understand that this is in fact the practice that has been in operation by the Office of the Director of Public Prosecutions for a very long time".

8.8 In exercising the discretion not to call a witness whose statement is contained in the book of evidence, the prosecutor should have regard to the principles enunciated by Parker LCJ in Joseph Francis Oliva (1965) 49 Cr. App. R. 298 at p.309 adopted and applied by the Court of Criminal Appeal in The People v. Mark Lacy (Denham J., 12 May 2005), together with the added consideration of the constitutional concept of due process which requires at its root, justice and fair procedures:

"Accordingly, as it seems to this court, the principles are plain. The prosecution must of course have in court the witness whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross-examination. The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness's evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved. Their discretion must be exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence. If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial to interfere in his discretion in turn to invite the prosecution to call a particular witness, and, if they refuse, there is the ultimate sanction in the judge himself calling the witness."

The Court of Criminal Appeal described the placing of names of the witnesses on the back of an indictment as similar to entering their names in the book of evidence in this jurisdiction.

8.9 Cross-examination of an accused as to credit or motive must be fairly conducted. Material put to an accused must be considered on reasonable grounds to be accurate and its use justified in the circumstances of the trial.

8.10 Care should be taken in opening a case to a jury to avoid statements that may lead to a subsequent discharge of the jury where these are not necessary in order to open the case in a coherent and intelligible manner. Particular care should be exercised where the defence advises that the admission of evidence is to be challenged.

8.11 Ensuring the prosecution's right to equality of arms may require a prosecutor to seek an adjournment of a matter due to insufficient notice being given to the prosecution, or to allow a particular matter arising for the first time to be considered.

8.12 It is in the interests of justice that matters are brought to trial expeditiously. As far as practicable adjournments after a trial has been allocated a hearing date should be avoided by prompt attention to the form of indictment, the availability of witnesses and any other matter which may cause delay.

8.13 Under the Constitution and under the Prosecution of Offences Act, 1974, the Director of Public Prosecutions is authorised to commence and pursue prosecutions in the name of the People of Ireland. A crime is an offence against the People, against the whole of society, of which the particular victim is a part. In the criminal process it is the People who come to court to seek justice. A criminal trial is a contest between the People and the accused, and not between the victim and the accused. This does not, however, mean that the victim is to be left without access to such assistance and advice as the prosecuting lawyers representing the People may properly afford him or her. The obligations of prosecuting solicitors and counsel towards victims are set out more fully in Chapter 12.

The Prosecutor's Role in the Sentencing Process

8.14 When appearing at a hearing in relation to sentence the prosecutor has the following duties:

  1. to ensure that the court has before it all available evidence relevant to sentencing, whether or not that evidence is favourable to an accused person;
  2. in particular, to ensure that the court has before it all available relevant evidence and appropriate submissions concerning the impact of the offence on its victim, in accordance with the provisions of section 5 of the Criminal Justice Act, 1993, in respect of offences to which that provision applies;
  3. in addition, to ensure that the court has before it all relevant evidence available to the prosecution concerning the accused's circumstances, background, history, and previous convictions, if any, as well as any available evidence relevant to the circumstances in which the offence was committed which is likely to assist the court in determining the appropriate sentence;
  4. to ensure that the court is aware of the range of sentencing options available to it;
  5. to refer the court to any relevant authority or legislation that may assist in determining the appropriate sentence;
  6. to assist the court to avoid making any appealable error, and to draw the court's attention to any error of fact or law which the court may make when passing sentence.

8.15 As well as ensuring that the court is aware of the range of sentencing options open to it, it is the prosecutor's duty to deal with any questions of forfeiture, compensation or restitution which may arise. This is further discussed in Chapter 15.

8.16 Where there is a significant difference between the factual basis on which an accused pleads guilty and the case contended for by the prosecution, there is an adversarial role for the prosecution to seek to establish the facts upon which the court should base its sentence.

8.17 When the defence advances matters in mitigation which the prosecution can prove to be wrong, and which if accepted are likely to lead the court to proceed on a wrong basis, the prosecutor should first inform the defence that the matter advanced in mitigation is not accepted. If the defence persists it is the prosecutor's duty to invite the court to put the defence on proof of the disputed matter and if necessary to hear prosecution evidence in rebuttal. Co-operation by convicted persons with law enforcement agencies should be appropriately acknowledged or, as the case may be, disputed at the time of sentencing.

8.18 Where the defence advances matters in mitigation of which the prosecution has not been given prior notice or the truth of which the prosecution is not in a position to judge, the prosecutor should invite the court to insist on the matters in question being properly proved if the court is to take them into account in mitigation.

8.19 Where the accused pleads guilty, it is the prosecutor's duty to ensure that the facts which are then placed before the court support each and every element of the charges laid which are necessary to provide a sufficiently comprehensive factual basis for sentencing. Where the prosecution agrees not to rely on an aggravating factor no inconsistent material should be placed before the sentencing judge.

8.20 The prosecutor must not seek to persuade the court to impose an improper sentence nor should a sentence of a particular magnitude be advocated. However, the prosecutor may at the request of the court draw the court's attention to any relevant precedent.

8.21 If the court seeks the views of the Director of Public Prosecutions as to whether he considers that a custodial sentence is required, the prosecutor should not express his or her own views in relation to the matter but rather the views of the Director. If the court seeks the Director's views counsel should offer to seek instructions on the question. It should be made clear to the court that in order to give instructions in such a case the Director would require sight of all relevant material before the court, including all reports and transcripts of relevant evidence, and adequate time to give a properly considered view.