Category: Press Releases
16 November 2015
Since October 2008 my Office has, on request, given reasons for decisions not to prosecute to the families of victims in fatal cases only. Under the Directive victims will now have, upon request, a right to a summary of reasons for a decision not to prosecute in all our decisions made on or after 16 November 2015, subject to some limited exceptions. The Directive will also entitle a victim to ask for a review of a decision not to prosecute. The review will be carried out by a lawyer who was not involved in making the original decision. This will underpin the policy which my Office has adopted for many years of giving victims the opportunity to ask for a review of a decision not to prosecute.
The Gardaí will continue to be the victim’s first point of contact with the criminal justice system. Coordination and cooperation between agencies involved in implementing the Directive will be crucial. My Office has been liaising with the Gardaí, the Courts Service and the Department of Justice & Equality in preparation for the Directive.
The Directive also acknowledges the vulnerability of some victims who may require enhanced protection during criminal proceedings. In addition, the Directive extends to a broader category of victims the right to tell a court at sentencing of the effect of the crime on them and their families. I and my staff will continue to work with other criminal justice agencies to assist victims through the criminal process and to give effect to their information and procedural rights.
Prosecuting lawyers will continue to offer pre-trial meetings to victims and their families to introduce themselves and explain the trial process. While prosecutors cannot discuss the evidence in the case, I have emphasised to them the continuing need to communicate clearly and sensitively at these meetings. I hope these meetings will alleviate a little of the stress caused by attending court or giving evidence.
In July this year I established a new Communications and Victims Liaison Unit in my Office to prepare for implementation of the Directive and to ensure we have systems and procedures in place to enable us to meet our obligations. The unit will write directly to victims who request reasons and reviews. We have also published Plain English information booklets on ‘How We Make Prosecution Decisions’ and ‘How to request reasons and reviews’. I would like to thank the National Adult Literacy Agency for assisting us in making the booklets as clear as possible. Other useful information is available on the Victims and Witnesses section of our website http://www.dppireland.ie/victims_and_witnesses/. To assist victims further the unit will have a dedicated telephone line which will operate during office hours and will provide information for victims seeking reasons or reviews of decisions.
I am conscious that in prosecuting on behalf of the People of Ireland, my duties must extend to ensuring the rights of the accused or suspected persons. In this regard I understand that decisions made by my Office may not always satisfy the wishes of the victim. The right to the presumption of innocence and the right to one’s good name are protected both by the Constitution and the EU Charter of Fundamental Rights. I also have to take account of the accused’s constitutional right to a fair trial. In the interests of fairness there will be time limits within which victims can request reasons or reviews. Details of these time limits are provided in the booklet on “How to request reasons and reviews”.
I hope that in providing these enhanced services my Office will assist in alleviating the difficulties that many victims encounter in the criminal justice system. Today marks an important development, encouraging a more compassionate and consistent approach to assisting victims and their families and is to be warmly welcomed.
Director of Public Prosecutions
16 November 2015
19 May 2012
Opening Remarks by Claire Loftus, Director of Public Prosecutions
Annual National Prosecutors’ Conference
3rd November 2018
Attorney General, members of the judiciary and An Garda Síochána, prosecutors, ladies and gentlemen.It gives me great pleasure to welcome you to the 19thAnnual National Prosecutors’ conference. As ever we have a number of interesting speakers on a range of topics today and I will briefly touch on some of the themes raised.
Firstly however,I want to mark the sad and untimely passing of Marie Torrens B.L. in recent days. Her funeral took place earlier this morning.Marie was a prosecutor since1995 and gave very committed public service on behalf of the prosecution in many cases over 23years.I personally knew Marie since we first met on either side of cases in the 1990s and she was always a pleasure to deal with. Indeed,she was universally well-liked both by her colleagues in the Law Library and by my own staff who instructed her.I know that by dint of her seniority at the criminal bar she was a respected and generous mentor,especially to her more junior colleagues. I am sure I speak for everyone here when I say that she will be sadly missed. On all of your behalves I went to extend our sincerest condolences to her family on her untimely death. May she rest in peace.
Before I move on to the themes of the conference I want to take this opportunity to refer to the report of the Commission on the Future of Policing which was published in September. One of the many recommendations contained in that report related to the organisation of the prosecution system in Ireland.In Chapter 7 (paragraph 6)the Commission recommends that “the practice of police prosecuting cases in court should cease”.
As many of you will be aware the Garda Síochána currently prosecutes almost all cases in the District Court outside of Dublin,and prosecutes the vast majority of cases in the District Court in Dublin.Approximately 220,000 district court summonses are prosecuted every year across the State.My Office deals with almost 14,000 of the most serious criminal cases, directing on all indictable crime and managing prosecutions and appeals dealt with in all courts above the District Court.The prosecution system is therefore very dependent on the work of An Garda Síochánain prosecuting crime in every District Court across the State.
Additionally, the Commission recommends that “all prosecution decisions should be taken away from the police and given to an expanded State Solicitor or National Prosecution Service”. At present Gardaí at Inspector and Superintendent rank make a lot of prosecutorial decisions in more minor matters on foot of a delegation by me under section 8 of the Garda Síochána Act 2005.
The system that we currently have followed a complete examination of the prosecution system in this country 20 years ago by a working group chaired byDermot Nally,former secretary to the Government.At that time its extensive deliberations included consultations with all the relevant agencies and research intoother prosecution systems abroad.The ensuing report reflected the complexitiesand resourcesinvolvedin any change to the system.
I should say very clearly that 20 years on from the Nally report it is timely that the issues it considered in great detail ought now to be the subject of further appraisal.However,should the Government wish to implement this recommendation,either in whole or in part,it would mean a major reorganisation of the prosecution service.It is therefore incumbent on us all to ensure that it is based on a similar serious consideration of the implications, the costs and the benefits which it may afford, based on a careful examination of best international practice in comparable jurisdictions.
Other changes within the criminal justice system that have recently been mooted include the Law Reform Commission Report on Regulatory Powers and Corporate Offences published just last week.This is a very large and extensive report,the Commission’s largest ever I believe,and contains many recommendations.
The report is timely coming as it does in the same year that the prosecutions arising out of the banking crisis have concluded.We will hear from Sinéad McGrath B.L. later about some of the legal issues arising in the so called ‘back to back’ trials of 2016 and 2018.I am very pleased that Sinéad has agreed to speak regarding the complexities of presenting documentary and other evidence in these trials.This is I think an opportunity for the experience that we have gained in these large white collar trials to be shared with all of our colleagues.This is particularly so when one considers that admissibility and other issues relating to the presentation of extensive documentary evidence apply equally in other less complex trials, and are only going to become more common in the years ahead.Sinéad talks about navigating the documentary ‘minefield but I think her presentation will demystify this area.
I would like to acknowledge the exceptional work done over several years, eight years in fact, by a small team comprising both staff of my Office and junior and senior counsel.I want to thank them all for their efforts in each and every case.
Sinead will give you some idea of the scale of the undertaking involved in dealing with these banking cases.The trials themselves were of record length and were particularly protracted,in my view,due to the absence of a statutory pre-trial procedure.I have spoken about this on a number of occasions.Indeed,at my first conference as Director,in 2012,it was my one wish for the Criminal Justice System during my tenure.It is as mundane yet as significant a wish now as it was then, but I still look forward to its achievement.As I noted at last year’s conference,a draft provision is included in the Criminal Procedure Bill 2015,and I note it is now on the priority list of legislation for the current Dáil term.I do not think it is to overstate the position to say that an effective pre-trial provision is now urgent,not only for white collar criminal cases but also for the wide range of other criminal offences including sexual offences where protracted legal argument has become the norm.
The Law Reform Commission in its recent report,in the context of proposing a new statutory investigation agency to deal with corporate offences,has also recommended the establishment of a dedicated unit in my office to work in close liaison with such a new agency.
Of course there is already a unit in my office (led by Henry Matthews)which was first established in 2011 to deal with the banking cases. Since the middle of 2016 this unit has also been dealing with a number of other large financial crime cases including some corporate crime cases, investigated primarily by GNECB and ODCE.
However, I note the recommendation of the Law Reform Commission that the unit in our Office that interacts with the new agency would be properly resourced.It is to be expected that any new agency,with a multi-disciplinary approach to corporate crime,would inevitably investigate and submit more cases.We would therefore require additional resources to fully meet the requirements of these very complex and sometimes voluminous cases.
There has been an undoubted increase in the volume of material arising generally in criminal investigations.This is currently most acute,as Sinead will illustrate,in the area of financial crimes.Right across the range of criminal offences from sexual offences to child pornography to drug offences to robbery,digital evidence and other forms of evidence are increasingly prevalent.As prosecutors we are all dealing with vast amounts of data arising from the wide spread use of CCTV cameras, phone records, and electronic evidence including emails and social media messages and posts. This presents its own challenges both in terms of presentation of evidence and disclosure of unused but relevant material.
When it comes to collecting evidence,for example from social media websites,issues of jurisdiction come into play and therefore I am delighted to welcome Bertrand de La Chapelle who is going to address us on some of those issues.This is a growing area for prosecutors around the world and especially in my office where,for example the number of mutual legal assistance requests has gone up dramatically,partly owing to the necessity to secure electronic evidence from social media websites abroad.I look forward to hearing what he has to say.
We will also be hearing from Chief Superintendent Declan Daly of An Garda Síochána who will address us on the future plans of the Gardaí in relation to the investigation of sexual crimes. I am aware that a number of protective services units have already been established on a pilot basis and I look forward to hearing more as to how the Gardaí envisages approaching these investigations in the future.
One year on from the enactment of the Victims of Crime Act in Ireland it is imperative that we maintain a very strong focus on the position of victims within the entire criminal justice system,from investigation to conclusion of their case.It is to be hoped that the special measures brought in by the Act,some augmenting measures that were already there,will be fully utilised in appropriate cases to alleviate the stress on individual victims. We will return to the topic of dealing with victims with particular emphasis on the services we as prosecutors provide.
Finally, I am delighted to welcome Dr. Martina McBride from Forensic Science Ireland.Her title ‘The tracks less followed’ is intriguing and she will be enlightening us on the compelling evidence that can be gathered from marks.In an era that is dominated by DNA evidence it is very important for us as prosecutors and investigators to remember all of the other strands of forensic evidence that can be crucial in underpinning a prosecution.
I thank all of our speakers for giving their time to prepare papers and present to us today.
Before I conclude I want to mention two changes among the complement of State Solicitors.I congratulate John Hughes former State Solicitor for Co. Offaly who was recently elevated to the District Court bench.John was State Solicitor for six years and I thank him for his very professional service and wish him every success in his career on the bench.
Secondly,I want to mention Vincent O’Reilly who after no less than 36 years’ service as State Solicitor for Co Meath is retiring in January next.As this is his last annual conference I want to thank him for the excellent service he has provided to the State and the DPP’s Office over so many years.Meath has become an increasingly busy county and Vincent dealt with all changes and demands with characteristic good humour and great professionalism.
I also want to welcome the various new counsel for whom this is their first conference having been added to our panels during the year.
Finally,as ever I want to thank all of you–the staff of the Office, all of our State Solicitors and the many independent counsel who represent the prosecution–for your unremitting commitment and hard work.Thanks are due not least for your co-operation this year in adapting to the new data protection regime.I am extremely grateful to all those prosecutors who over the last number of years have adapted to the many changes that have become an inevitable part of prosecuting crime in this country. You all provide a highly professional service often in difficult and urgent situations.
I also as ever want to thank the other stakeholders in the criminal justice system many of whom are here today for your continued support and co-operation.
Thank you for your attention and I hope you enjoy the conference.
25 October 2011
The Government has today appointed Ms Claire Loftus to be the next Director of Public Prosecutions. Ms Loftus will succeed the current Director, Mr James Hamilton, when he retires on 7 November next.
Educated in University College Dublin, and qualified as a solicitor since 1992, Ms Loftus has over 18 years experience working in criminal law, most recently as the Head of the Directing Division in the Office of the Director of Public Prosecutions. She was previously the Chief Prosecution Solicitor in the Office of the Director of Public Prosecutions from 2001 to 2009.
25 October 2011
11 July 2011
Opening Address by President
Prime Minister, Prosecutor General, fellow prosecutors,
It gives me great pleasure to welcome you to the IAP’s 16th Annual Conference and General Meeting. Let me begin by thanking our host Mr. Joon Gyu Kim, Prosecutor General of the Republic of Korea, for agreeing to host the conference in Seoul, Republic of Korea. This is the second occasion on which the IAP has held a conference in Seoul, the first being seven years ago. It had originally been intended that this conference would take place in Santiago in Chile. That was before the earthquake struck Chile and caused immense loss of life and physical damage. As a result, the Chilean prosecution service had to withdraw its offer to host our conference in Santiago as their resources are now devoted fully to the restoration of the prosecution service in Chile. Fortunately for us, Prosecutor General Joon Gyu Kim stepped into the breach with an offer to host our conference in Korea.
The theme for this year’s conference is that of “Prosecution as a Public Service”. The theme is an interesting and a challenging one. We intend to examine this question under a number of different headings. First of all is to examine the fundamental duties and responsiblities of prosecution services.
This subject has always been to the forefront of the International Association of Prosecutors concerns. When the IAP was established one of the first things it did was to get to work on drawing up a document which would set out the essential duties and rights of prosecutors. In 1999 the IAP adopted its “Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors” generally known as the IAP Standards. These standards were drawn up by practising prosecutors from every continent and are intended as guidance for practising prosecutors everywhere. The Standards are short, uncomplicated and realistic. They deal with the professional conduct, independence and impartiality of prosecutors as well as their duty to cooperate with colleagues around the world and their rights to fair and proper terms of employement. There are provisions which set out standards of professional conduct for prosecutors, including the duties to conduct themsleves professionally, in accordance with the law and rules and ethics of their profession, to exercise the highest standards of integrity and care, to keep themselves well informed, to be consistent, independent and impartial, to protect the accused person’s right to a fair trial, and in particular to ensure that evidence favourable to an accused person is disclosed, and to serve and protect the public interest, and to respect, protect and uphold the univesral concept of human dignity and human rights. These are the essential and fundamental duties of prosecutors, and it is always important to bear in mind that the prosecutors’ duty is owed to the public as a whole rather than to any single individual.
The Standards deal with the relationship between the prosecutor and the executive. The fundamental rule is that if non-prosecutorial authorities have the right to give instructions to prosecutors, those instructions must be transparent, lawful, and subject to established guidelines to safeguard both the actuality and the perception of prosecutorial independence.
The IAP Standards lay great emphasis on the duty of prosecutors to perform their duties without fear, favour or prejudice, impartially, unaffected by individual or sectional intesests and public or media pressures having regard only to the public interest. The importance of searching for the truth and ensuring that justice is done between the community, the victim and the accused according to law and the dictates of fairness is emphasized as a core principle.
The Standards emphasize a number of key matters concerning the prosecutors’ role in criminal proceedings. Prosecutors are to perform their duties fairly, consistently and expeditiously. They are to act objectively, impartially and professionally and to respect the law and fundamental human rights. Proceedings should be instituted only where a case is well founded upon evidence reasonably believed to be reliable and admissible and a prosecution should not be continued in the absence of such evidence. Prosecutors are to preserve professional confidentiality. They are to consider the views, legitimate interests and possible concerns of victims and witnesses and to ensure that they are informed of their rights. They are to safeguards the rights of the accused. Evidence should be examined to ascertain if it has been lawfully or constitutionally obtained and the prosecutor should refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods which constitute a grave violation of the suspect’s human rights and particularly methods which constitute torture or cruel treatment. When dealing with young defendants the prosecutor should give due consideration to dealing with matters without recourse to the formal justice system where this is appropriate. Prosecutors are to cooperate with other elements of the criminal justice system both nationally and internationally.
Finally, prosecutors should be protected against arbitrary action by governments and should be entitled to perform their professional functions without intimidation, hindrance, harrassment, improper interference or unjustified exposure to civil, penal or other liability. Prosecutors should be physically protected by the authoritites when their personal safety is threatened as a result of the proper discharge of their functions. Prosecutors should be entitled to reasonable conditions of service and adequate remuneration. They should be allowed to join and form professional associations – a right not always allowed. They should be entitled to be treated fairly in relation to recruitment and promotion which should be decided upon in accordance with fair and impartial procedures. Where disciplinary steps are necessitated these must be based on expeditious and fair hearings.
The IAP has since the adotpion of the Standards 12 years ago made significant efforts to promote them and to bring them to the attention of working prosecutors throughout the world. All IAP organisational members are required to commit their organisations to the IAP standards for prosecutors when they join the IAP.
Many countries and organizations have drawn from the standards in developing their own code for prosecutors. These include South Africa, Afghanistan, my own country of Ireland, Northern Ireland, as well as the International Criminal Tribunals for Former Yugoslavia and the International Criminal Court. At the 17thAnnual Commission on Crime Prevention on Criminal Justice in Vienna, Austria, the United Nations adopted a resolution promoting the IAP Standards to all member states. State parties are requested to take the IAP Standards into consideration when reviewing or developing their own prosecution standards. The United Nations Office on Drugs and Crime has committed itself to develop, in conjunction with the IAP, practical guidance upon how the IAP Standards should operate. This is a subject on which our General Counsel, Ms. Elizabeth Howe, will speak at a later stage of the conference.
One of the issues which we will discuss at this conference is the question of whether prosecution services should have a remit beyond the basic one of bringing offenders to justice. This is sometimes a controversial issue. For example, particularly in states which formerly had communist regimes, the prosecution service frequently has a wider remit for the supervision of law generally and not just criminal prosecution. Of course, a prosecution service must always have a remit to ensure the observance of law and human rights when carrying out its mandate. Where it comes to extending the remit of the prosecution service to cover matters other than criminal law, then I do not believe that there is a universal rule that says that this is always either a good thing or a bad thing. Each case has to be evaluated on its own merits.
There are, however, a number of principles which I think need to be observed. In the first place, the balance of powers in any society should be such that no one institution can be too strong. This is the basis on which the idea of the separation of powers was first developed. The essential idea behind the doctrine of the separation of powers is to ensure that no one person or institution in society can exercise absolute power and that each person or institution is to some extent kept in check by other institutions in society. As with every other institution in society, it is important that a prosecution service is itself subject to checks and balances, whether internally or through the exercise of powers by outside bodies such as courts or bodies of inspection.
The practical problem, of course, is how to ensure a degree of accountability without diluting the power of the prosecution to act independently. A second, related concern is that if the prosecution is too powerful it may weaken the role of the courts. While it is important that prosecution decisions can be taken independently, it is also essential that in the last analysis the final artiber between the prosecutor and the accused must be a court of law and not the prosecutor him or herself. Where the prosecutor is given powers such as powers to search, interogate persons and require them to answer questions, there must be adequate safeguards to ensure that where necessary the exercise of such powers is subject to a final decision by a court of law.
Sometimes the prosecutor has also the function of protecting state interests. In my view this also can be problematical since the public interest and the interests of the state may not coincide. Combining the prosecution function with other duties tends to increase the scope for there to be a conflict of interest.
The issue of how prosecutors engage and interact with the public is also a difficult one. The prosecutor’s duty of confidentiality in relation to many of the matters which he or she becomes aware of necessarily limits the extent to which the prosecutor can engage with the media or with the public as a whole. Yet the public has to be entitled to know and understand the basis on which the prosecution service makes its decisions, at least in a general sense, even if it is not always possible to give full explanations in every individual case. Public confidence is essential if the prosecution service is to fulfil its mandate and that public confidence can only be earned if the public trusts the prosecution service to act properly and impartially. While a free press is essential to the functioning of a democratic society, at the same time it is important to bear in mind that often what drives the press is the profit motive rather than the search after truth.
Not only do we as prosecutors need public confidence but the cooperation of the public is also required if we are to be successful in prosecuting crime. If witnesses are not prepared to come forward and testify, whether through fear of the criminal or mistrust of the prosecutor, then criminal justice is impossible to enforce.
I have attempted to give a flavour of some of the matters which our conference will try to address and we look forward to developing these and other themes in the next few days.
One of the issues emphasized in the IAP Standards is the duty of prosecutors to keep themselves informed and abreast of developments in the law. Here the IAP has an important role to play on the international level. This year we have taken a number of steps in order to enhance our capcity to provide information to prosecutors. It is my belief that the services the IAP offer will more and more have to be provided through the use of the web. There are probably over a million prosecutors in the world and only a handful of them will ever attend an IAP conference. The IAP’s website, on the other hand, should be accessible to most prosecutors wherever they are.
A priority of our Association at present is the development of our website in languages other than English. In May I launched our revised and revamped Russian website which is hosted in Baku, Azerbaijan. With regard to the French language, the IAP has been actively discussing the future development of French language services with the Association Internationale des Procureurs et Poursuivants Francophones. The objective is to strengthen both the IAP itself and the Francophone association and to ensure that we enhance the quantity and quality of material provided in the French language. Our Communications Manager Mrs. Janne Holst Hübner has been in discussions with a number of our organizational members concerning the provision of an Arabic website. Finally, in relation to the Spanish language the IAP has been discussing this question with the Prosecutor General of Buenos Aires and the Prosecutor General of Spain. This issue will be discussed at the special interest Ibero-Americans group.
With regard to the specialized information provided on our website, we are looking to improve the Global Prosecutors e-Crime Network as well as the forum for International Criminal Justice. We are looking at the possibility of having other specialized forums on the website.
We must, of course, not suggest that conferences are unimportant. The last 12 months has also seen a major expansion in the number of regional conferences which have been organized by or in conjunction with the IAP. The first North American Regional Conference was held late last year in Bermuda, and the first African Regional IAP Conference was held in Nigeria earlier this year. Forthcoming regional conferences include the regional conference for Eastern Europe and Central Asia which will take place in Kazakhstan in early October and the second North American Regional Conference which will take place in Quebec city in May 2012.
I hope to be able to give you further information concerning these and other IAP activities both at the annual general meeting of the Association on Tuesday afternoon and during the closing session of the conference on Wednesday afternoon.
It only remains for me once again to welcome you to this conference and to express the hope that you will find it interesting and informative as well as a good opportunity to network with fellow prosecutors from around the world where the hosts of our next conference will offer a flavour of what is in store.
04 June 2011
SERVING THE COMMUNITY
BAR COUNCIL CONFERENCE,GALWAY,4JUNE 2011
It is a great honour to be asked to address this conference of the Bar of Ireland on the subject “Serving the Community” because the function of my Office and the nature of the interaction I have with the Bar is about precisely that – serving the community. It is no harm to remind ourselves that under the express terms of Article 30.3 of the Constitution of Ireland all crimes are prosecuted in the name of the People. We would do well to remind ourselves that it is the People and not the State we represent when we prosecute a crime in the Courts.
I am going to say a little about the interaction between my Office and the Bar of Ireland. For those of you who do not know my history I will explain a little about my background. I practised at the Bar for eight years and for four of those I was the County Prosecutor in Co. Donegal. I then spent eighteen years in the Office of the Attorney General, the last four and a half of them as Head of the Office. Next September I will have spent twelve years as Director of Public Prosecutions.
As I am sure all of you know the DPP is one of the largest consumers of services at the Bar. Last year our Office paid out €14,734,046 in fees to a total of 168 barristers, 53 of them seniors and 115 of them juniors. A total of 97 barristers earned more than €50,000 each in fees. Despite substantial cuts in the rates of fees paid by the State to barristers over the last several years this 2010 payment represents only a marginal reduction in the total expenditure on barristers fees. This in turn is because of the continued expansion of criminal business in Ireland. Despite the economic slowdown, the return of emigration and the collapse of immigration, we have yet to see any of this reflected in the number of serious files being dealt with in my Office.
When compared with other prosecution services around the world the way in which our DPP’s Office uses the services of the Bar is an unusual system – indeed possibly a unique one. In most countries in the world court advocacy in prosecutions is carried out by in-house prosecutors. This is not only the system in civil law countries, where it is universal, but also in many common law countries including the United States, Canada and Australia. The U.K. is probably the closest jurisdiction to ours in how it approaches this matter. In England and Wales roughly 70% of the Crown Prosecution Services advocacy work is done by the Bar and 30% in-house.
There are both advantages and disadvantages to the Irish system. In the first place, the use of a private advocate means that every serious case which is tried on indictment gets a second look from an independent lawyer. The chances of a prosecutor developing tunnel vision and persisting with a case which should have been dropped is thereby lessened. Secondly, our system ensures that when the case comes to trial the DPP can obtain the services of the best advocates who practise criminal law. This is so because since most legal work is done on legal aid the fees payable to the prosecution and the defence are calculated on the same basis. Such a system is by no means the case in every country in the world. I have come across jurisdictions where the prosecution can be severely disadvantaged because the in-house lawyers who prosecute in court are paid much less than the private lawyers who work for the defence and therefore the prosecution finds it difficult to attract the highest calibre lawyers, although even in such jurisdictions there are usually some people who are prepared to work for lesser money because they prefer the work or for reasons of principle prefer to work for the community rather than do defence work.
Incidentally, this raises an interesting question which I have wondered about for many years and never found a satisfactory answer. Why is it that at the national level it is the defence lawyer who claims the title of “human rights defender” whereas when you go to the international criminal courts and tribunals it is the guy who prosecutes the Mladics and Karadics rather the guy who defends them who is on the side of human rights?
At first sight, the use of the services of the private Bar seems more expensive than using in-house lawyers. Certainly the fees paid to barristers are higher than the salaries which would be paid to a recently qualified solicitor. However, such calculations take no account of the fact that the in-house lawyer requires expenditure to provide for pension costs, requires to be provided with office accommodation and various other facilities, benefits and services such as IT, books, training, paid leave, maternity leave, payment while sick, and so forth. Furthermore, when one employs a barrister one undertakes no commitment to give the barrister further work if there is somebody else who can provide a better service. On the other hand, when one takes on a permanent employee one takes on obligations to retain that person even though there might be someone else who could do a more competent job. It is of course difficult to calculate figures precisely, but I suspect that if the true cost of in-house lawyers versus out -sourcing work to the Bar is calculated the financial costs are not that different.
There are of course also disadvantages to out-sourcing work. The lack of opportunity for in-house staff to do advocacy work is a problem. It might be thought that another disadvantage of using the outside Bar is lack of control of how a case is run in court. However, realistically this does not really seem to me a great disadvantage. In reality, once a case goes to hearing the lawyer dealing with it on his or her feet has to have a great deal of discretion as to how the case is to be run. Whether that person is an outside advocate acting on instructions or a member of one’s own staff they may well be faced with decisions which have to be made without seeking specific instructions and in either case the line they run might not necessarily be one which the senior prosecutor in the prosecuting authority would have taken had he or she been there. Of course, one attempts to anticipate what is likely to arise and give general instructions but the unexpected frequently happens in trials and courts for obvious reasons are reluctant to break the flow of a trial to enable lawyers to seek instructions from their clients unless this is absolutely necessary.
A further area where there may be advantages and disadvantages is the Irish practice, which is certainly uncommon if not unique, whereby lawyers appear sometimes for the prosecution and other times for the defence. This has the advantage that the lawyer is likely to be quite objective about the strength and weaknesses of cases in a way which perhaps a full time prosecutor will not. On the other hand, it is not always easy to get counsel to put forward the argument that the prosecution service would wish to see put forward with a degree of enthusiasm if that same lawyer is going to be appearing in court the following day to make the opposite argument. On the whole, however, I feel that Irish barristers do tend to have the flexibility to argue contradictory points of view on different days!
I am sometimes asked what are the great sins which a barrister can commit and which for us as clients cause serious problems. In my book the greatest sin is not following instructions. In particular, the decision to charge and the decision what offences to charge, as well as the decision to drop offences or accept pleas to some offences only, are matters reserved for me and my Office and we do not delegate the function to the counsel appearing in the case to exercise this function without express instructions. Fortunately, in my experience, breach of these instructions is very rare and I can only recall a very small number of cases where this rule was seriously breached. A breach of the rule, however, can have very serious consequences for my Office particularly as we may be put in a position of being unable to explain what on the face of it may be an inexplicable decision.
A second problem is slowness with providing paperwork. Unfortunately, this is something that we frequently encounter. Part of the problem seems to be that many of the barristers who most enjoy doing criminal work enjoy it because of the advocacy, the buzz they get from being on their feet doing a case, and have a corresponding shyness when it comes to putting their thoughts on paper. Good advocates in criminal law who can also put their thoughts in writing are at a premium!
Another great problem for us is the last minute handover. Unfortunately the listing system in the Irish courts tends to create this problem and very often cases have to be handed over with very little notice not necessarily through the fault of the counsel involved in them. I think this is a particular problem for victims of crime who quite rightly are upset when they discover on the day of the hearing that the barrister whom they have already met is not handling the case.
I would like to say a little about the current economic crisis and the way in which it impacts on my Office and the Bar. Unlike many Government Departments, my Office does not have any programmes which it can cut back or abandon. Our only programme is to prosecute crime. We have little control over the number of files which arrive into our Office and the only real means of reducing their number is to delegate further functions to the Garda Síochána. In my view this is not an attractive option as I think cases are better prosecuted by lawyers than the police in all but the most minor of offences. The vast bulk of the Office’s expenditure is on fees to counsel, costs awarded against us (over which we have only limited control) and the wages and salaries bill of the Office. We are under pressure, of course, to find ways of reducing costs to the State.
In my view there are significant ways in which costs could be saved, although not necessarily on my own vote. For example, the annual bill in overtime for Gardaí attending court is €17million. It is quite obvious that much of this bill could be substantially reduced if we can find ways to better manage cases so that Gardaí do not spend time sitting in court for cases which do not get heard on that particular day. However, there is very little the Gardaí themselves can do to save this money. It is, however, possible that the combined forces of our Office, the Courts Service and the Bar, if they were to cooperate in order to improve case management, might be able to produce substantial savings.
The alternative to finding such ways to cut costs is that a Government may decide to impose yet more cuts on the fees I pay to counsel as well as on the wages and salaries bill of my own Office. I know which option I think is preferable and I believe this is an area where there could be cooperation between the Bar and ourselves. Unfortunately, our system of public administration is not well geared to encourage one Department to take steps which result in savings in another, as the system encourages us to operate in our own hermetically sealed areas. “Joined up thinking” is more talked about then done in the Irish public service
What of the future? Just as we behaved during the boom as if it was never going to come to an end, many people can see no way out of our current problems. However, I am optimistic enough to believe that nothing lasts forever.
While nobody can predict the future, there are nevertheless a number of trends which have continued steadily over the past number of years and which show no sign of abating. It is probably safe to say that among the trends which are likely to continue are a continuing increase in serious crime, a continuing growth in the complexity of the criminal law and of the cases we deal with, a continuing need for specialisation, and an ever growing impact from globalisation on crime and the way in which we do our business. I do not have time in this brief talk to develop any of these themes but I see no reason to believe that any of these trends are going to be reversed any time soon.
The final question which confronts us, and which probably has brought about the single greatest change in my time practising law, is the relationship between the criminal law and the victim of crime. I believe that we have made great strides in the way we treat victims of crime in the past number of years, and in my experience the Bar has become much better at dealing with crime victims than used to be the case. Indeed it is not that long ago that some of the more traditional members of the Bar refused to engage with crime victims at all. I think today there is a much greater appreciation that although we prosecute on behalf of the People, the community as a whole, the victim of crime has a special interest in the outcome of the case although of course we cannot substitute private vengeance for a commitment to public prosecution. Nevertheless a civilised legal system ought to treat its victims in a civilised way and to ensure that they are kept fully informed of what is happening and have the opportunity to put forward their point of view, even if we draw the line at conceding to them the right to make decisions as to how the case should be run or to veto those decisions.
I thank the Bar Council for facilitating this discussion and I look forward to listening to your contributions.
Director of Public Prosecutions
4 June 2011
28 May 2011
James Hamilton, Director of Public Prosecutions
Opening Remarks at 12th Annual National Prosecutors’ Conference
28 May 2011
Attorney General, Members of the Judiciary, Fellow Prosecutors, ladies and gentlemen,
It gives me great pleasure to welcome you to our annual national prosecutors’ conference, the twelfth occasion on which this event has taken place.
This year’s conference will focus on two principal themes. The first is psychiatry and the criminal law with particular reference to the Criminal Law (Insanity) Act 2006, of which we now have five years experience. Our distinguished speakers are Prof. Harry Kennedy, Executive Director of the Central Mental Hospital and Mr. Domhnall Murray of this office. Our second theme is that of complex fraud, on which I have asked two leading criminal practitioners, Mr. Shane Murphy S.C. and Mr. Patrick McGrath, B.L., to present papers. I want to give a warm welcome to all four speakers and to thank them in advance for what I believe will be informative and stimulating contributions.
Given the current investigations taking place in relation to certain allegations of “white collar” crime I am constrained in what I might say about this topic, and obviously I have to refrain from any comment which could prejudice any case which might be brought. In particular, I will not comment on the substance of the allegations being investigated.
I do, however, think it timely for me to make some general remarks as I believe there are some current misunderstandings about what is happening.
Firstly, in our system investigators investigate and prosecutors decide whether to prosecute. The prosecutor does not direct the investigation, and, except in minor cases delegated to them, the investigators do not decide whether to prosecute. Only the prosecutor has this function.
Our system is an adversarial one, where the prosecutor presents the case, the accused defends, and the judge and jury decide on the issues of law and fact which are in dispute. The judge’s function is that of adjudication between the parties in contrast to inquisitorial systems where a judge supervises the work of the prosecutor.
I said I would not comment on the substance of the various investigations related to Anglo Irish Bank, and other than discussing process and making some remarks which would be relevant to any complex case I do not propose to say more than that this investigation has been unusual in one important respect. Normally a file is not sent to our office until an investigation is complete, at which point we start to consider the case and make a prosecution decision. Sometimes the decision cannot be made without further information or investigation.
Because of the complex and extensive nature of this investigation, it was agreed between me, the Garda authorities, and the Director of Corporate Enforcement, that files might be sent to my Office in advance of completion of the investigation so that our consideration of the case could begin even as the investigation continued with a view to speeding up the final decision. My office over the last few months has received a number of voluminous and carefully prepared files from both the Garda Bureau of Fraud Investigation and the Office of the Director of Corporate Enforcement. We have been working our way through them with the assistance of the counsel whom I have engaged. It is, however, important to note that, in all but one of the separate modules of this investigation, investigations are not complete and indeed the evidence of important witnesses has still to be taken. I should add that it is not possible nor was it ever envisaged that my office would take a final decision on whether to bring any prosecutions in this case until all the important evidence is gathered .
In an adversarial system the choice of what charges to prosecute is a function for the prosecutor alone. It is not a judicial function. In selecting offences care must be taken not to overwhelm a jury by a trial which is longer and more complicated than necessary. This judgment is for the prosecutor to make. This is a further reason not to take decisions to prosecute before all the important and relevant evidence is known.
I would like to take this opportunity to welcome the decision of the Minister for Justice and Equality to introduce a new Criminal Justice Bill in the Oireachtas. Until now it has been a surprising omission in Irish law that potential witnesses cannot be compelled to cooperate with an investigation, even where they themselves are not suspected of or accused of any wrongdoing. In this regard the power of an Irish criminal investigator is considerably weaker than that of a tribunal of enquiry. The new legislation will plug this gap.
I want to say a little about resources. When the scale of this investigation became apparent, before the last election, I sought additional resources for my Office from the Department of Finance. I was given a small but significant additional number of lawyers on short-term contract. I indicated that depending on how the case developed I might need further resources. I wish to say that when I have sought resources in the past I have always found the Department of Finance and the Government of the day willing to engage with my requests and while I have not always received everything I looked for I have always encountered an understanding that the provision of a functioning criminal justice system is not an optional extra. I am sure that will remain the position and I wish to make it clear that the fact a prosecution decision has not yet been taken is not due to any question of lack of resources, and that while the resources of the office are fairly stretched I have to date been able to allocate sufficient resources
to deal with this case. If the situation changes in the future and I need additional resources I will not be slow to ask for them.
I want to turn now to another subject of great interest to me, the project to change the policy of my Office from a refusal ever to give a reason for a prosecution decision to a willingness to give reasons where possible.
In October 2008 I announced a change in policy on the giving of reasons for prosecutorial decisions not to prosecute.
The policy was introduced on a pilot basis whereby reasons for a decision not to prosecute in a case involving a death are given to the family or household of a victim at their request. Prior to this change in policy, reasons for decisions not to prosecute were given to the Garda Síochána or State Solicitor but were not made public.
The policy applies to decisions not to prosecute, or to discontinue a prosecution made in respect of offences involving a death where the alleged offence occurred on or after 22 October 2008. The policy change was confined to alleged offences where a death has occurred including:
- fatalities in the workplace
- fatal road traffic accidents
I originally anticipated that this pilot policy would operate until 1 January 2010 and that during this time a comprehensive evaluation of the policy would be undertaken with a view to ascertaining the viability of the project, particularly within the context of severely restricted resources, and the potential to extend the policy to other serious cases including sexual crimes.
However, because of the lapse of time between the occurrence of an incident and the eventual decision not to prosecute, the numbers of requests received within this initial evaluation period were too few to allow a meaningful analysis of the project. For this reason I decided to extend the pilot phase of the policy so as to allow the Office the opportunity to deal with a sufficient number of requests to carry out a more comprehensive evaluation process.
To date we have received requests for reasons for prosecution decisions in 19 fatal cases, of which 14 were fatal road traffic accidents. In 10 cases detailed reasons have been given. In addition, in line with Office policy, on receipt of a request for reasons for the decision not to prosecute, each case was thoroughly
reviewed by a different lawyer from the original decision maker. In many instances this review was undertaken by the Director, Deputy Director or Head of the Directing Division. In each of the 10 cases the original decision not to prosecute was upheld and the detailed reasons for same explained to the deceased’s next of kin.
In three of the four cases where the giving of detailed reasons was declined, cases arising from the death were before the courts. In effect these requests for reasons were not for a decision not to prosecute, but rather, a request to explain why particular charges were being pursued in preference to more serious charges. In each of these cases it was explained to the family or household member of the deceased that the Office could not comment while the matter was ongoing before the courts as to do so could prejudice the pending prosecution. In each such instance the Office offered to resume communication after the conclusion of the matter.
In the fourth case where reasons were refused the matter was still actively being investigated by An Garda Siochana and thus we considered, in view of the possibility of further evidence coming to light which might affect the initial decision not to prosecute, that it would be inappropriate to comment on the case at that time.
At this time five other cases are still pending.
In seeking to evaluate both the operation of this policy to date and the potential for expansion to include other serious offences, first and foremost I am mindful of the fact that these 19 cases represent to the families of each deceased a very personal tragedy.
Nineteen is not an insignificant number and I hope that the operation of this policy has given a degree of comfort to those bereaved families.
I am sure there is a degree of impatience that to date we have not moved beyond the pilot scheme to give reasons in other areas of crime.
The original evaluation project in my opinion has been a success in that we have not yet encountered any cases where we could not explain our reasons, other than where it was inappropriate to do so as cases were pending. While the number of requests has been less than expected each case is unique and important to the dead person’s family and friends. The policy of giving reasons in fatal cases will therefore continue.
What we have learned is that giving reasons is extremely time consuming. In effect each request for reasons becomes in practice a request for a review and a
second and more senior person has to read the file with care in order to clearly express the reason. Time-consuming is of course resource-consuming.
We are now in the process of examining how we might extend this project to decisions concerning other serious crimes, notably sexual crimes. This involves an evaluation by us of how much information it would be possible or appropriate to give in such cases as well as examining how to find the necessary resources. Following this evaluation I wish if possible to extend the project to sexual offences, almost certainly on a phased basis. I am not yet in a position to put a definite date on when we will be able to do this.
In conclusion, while the completion of this project is slower than I had ever expected, I believe that its further development is inevitable given time, once we accept that the principal obstacle to its attainment is a problem of resources and not a problem of principle.
Finally I want to thank all our staff, as well as our state solicitors and the counsel who work on our cases, for their cooperation and understanding despite our current difficulties. I also want to thank the various persons and agencies with whom we have professional dealings, including the Garda Síochána, other investigative bodies, the Courts Service, the Forensic Science Laboratory, the Medical Bureau of Road Safety, the Office of the Attorney General, the Law Reform Commission, support organizations for the victims of crime, the Department of Justice and other Government and State agencies, as well as the citizens who are affected by our services.
Thank you for coming today and I wish all of you a fruitful and an enjoyable conference.
19 March 2009
Top prosecutors stress importance of cross-border co-operation in fight against organised crime
The Director of Public Prosecutions, Ireland, James Hamilton and the Director of Public Prosecutions in Northern Ireland, Sir Alasdair Fraser jointly host an EU co-financed cross border conference in Dublin on 19/20 March 2009 on combating cross border fraud and corruption.
The conference – ‘Cross Border Fraud, Corruption and European Union Financial Interests’ – is co-financed by the Anti Fraud Office of the European Union (OLAF) and will run over two days. It has attracted some 130 officers and practitioners from investigative, prosecutorial and asset seizing agencies from over twenty six European countries. The conference will focus on the issues facing the investigator, prosecutor and Revenue/Customs agencies in dealing with trans-national fraud, facilitate exchanges of information and experience, identify and share best practices and enhance multi-agency cooperation and networking throughout the European Union.
Speaking at the start of the Conference, James Hamilton said:
“Organised crime and in particular cross-border fraud is a huge challenge facing all of us. Evidence shows us that organised criminals are increasingly sophisticated, operating across borders and continents.
They constantly seek to change their methods of operating in order to evade the attention of law enforcement agencies and it is vital that we too keep pace with emerging trends to ensure that our efforts are appropriately and effectively targeted.
We therefore need an international response to an international problem. That challenge can only be met through collective responsibility and effective co-operation locally, nationally and internationally. Through co-operation, sharing of intelligence and expertise we can add real value in combating organised crime.
Commenting on the nature and impact of cross border fraud, Sir Alasdair Fraser said:
“Organised criminals have a long tradition of exploiting tax differentials and currency fluctuations particularly in border areas on the island of Ireland. These activities have caused losses to both jurisdictions and to European Union financial interests, revenue which is vital to maintain and improve critical public services and bolster our economy.
Make no mistake, cigarette smuggling, fuel smuggling, oils, alcohol and cross-border VAT frauds are crimes. These affect every man, women and child in our society.
I am confident that this conference will enable us to establish an effective network between the key players throughout the European Union, strengthen the existing levels of co-operation and further develop best practice,” he added.
European Commission Vice-President Siim Kallas, responsible for administrative affairs, audit and anti-fraud, welcomed the conference’s objectives:
“Given that the fraudsters do not recognise borders, co-operation, information exchange and mutual assistance across borders are essential to the Commission and to OLAF to ensure that EU funds receive the same level of protection as national funds”.
12 April 2008
My purpose in this brief paper is to examine the role of prosecutors at sentencing hearings and in relation to “undue leniency” reviews. In particular, I propose to deal with the following themes: the roles of the judge and the prosecutor in relation to sentencing, the Guidelines for Prosecutors and the Bar’s Code of Conduct, the issue of advocacy in relation to sentencing and the extent to which the prosecutor may properly express an opinion to the court concerning the appropriate sentence, and recent developments in the practice in the Central Criminal Court in relation to sentence hearings.
The Traditional Role of the Prosecutor
The traditional role of the prosecutor at the sentencing hearing was limited to drawing the attention of the trial judge to legal precedents and the prosecutor did not seek to indicate to the trial judge an appropriate sentence in individual cases. This position was justified by reference to the fact that sentencing is an exclusively judicial function. However, in People (DPP) v. Dennigan it was held that both the prosecution and defence are under a professional duty to draw the court’s attention to any common law authorities or statutory provisions relevant to sentencing in the particular case. More recently the Court of Criminal Appeal in People (DPP) v. Botha reiterated this duty of the prosecution to assist the sentencing judge with the provision of information on relevant precedents.
To go further than assisting the court in this manner would, it was felt, offend the long established principle that there must be a clear boundary between the executive and judicial roles in the sentencing process. A key principle was stated by the Supreme Court in Deaton v. Attorney General and the Revenue Commissioners where it was held that where there is a choice of punishment to be made, the choice is solely for the judiciary and not the executive. Ó Dálaigh C.J. stated:
“The individual citizen needs the safeguard of the Courts in the assessment of punishment as much as on his trial for the offence. The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his liberty; and it is inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of powers—and in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at one—could have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens. It would not be too strong to characterise such a system of government as one of arbitrary power.”
Of late the courts have been increasingly open to expanding the traditional role of the prosecutor at the sentencing stage. There have been many judgments criticising the traditional limited role of the prosecutor at this stage of trial. The Office of the DPP has endeavoured to take on board these criticisms and has published Guidelines for Prosecutors which inter alia provide guidance to prosecutors at the sentencing phase of a trial.
Guidelines for Prosecutors
The Guidelines for Prosecutors were first published by the Office of the DPP in 2001 and are continuously revised reflecting legislative and procedural changes in the criminal justice system. Many of the guidelines regarding the prosecutor’s role at the sentencing hearing have been formulated bearing in mind the recent criticisms. The Guidelines for Prosecutors outline the duties of the prosecutor in the sentencing process:
“When appearing at a hearing in relation to sentence the prosecutor has the following duties:
(a) 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;
(b) 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;
(c) 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;
(d) to ensure that the court is aware of the range of sentencing options available to it;
(e) to refer the court to any relevant authority or legislation that may assist in determining the appropriate sentence;
(f) 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.” 
In addition, the prosecutor has a duty to deal with any questions of forfeiture, compensation or restitution which may arise. Where there is a significant difference between the factual basis on which an accused pleads guilty and the case contended for by the prosecution, the prosecutor is required to adopt an adversarial role to seek to establish the facts upon which the court should base its sentence. 
The prosecutor is also required to challenge any matters advanced by the defence 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 correct procedure in those circumstances is firstly to 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 require the defence to prove the disputed matter and if necessary to hear prosecution evidence in rebuttal. Co-operation by convicted persons with law enforcement agencies is to be appropriately acknowledged or, as the case may be, disputed at the time of sentencing.
With regard to “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 is to “invite the court to insist on the matters in question being properly proved if the court is to take them into account in mitigation.”
The two preceding Guidelines were drafted bearing in mind the following judgments: in People (DPP) v. George Redmond, a review of sentence on the grounds of undue leniency, the Court of Criminal Appeal would not allow the prosecution to raise an issue concerning the assertion by the defence at the sentencing hearing that the accused was now destitute when the prosecution had failed to challenge this assertion at the sentence hearing. In People (DPP) v Kevin Keegan Hardiman J. in the Court of Criminal Appeal criticised the prosecution for failing to test “the very informal manner” in which evidence was given by the defence as to the defendant’s drug problem at the sentencing stage. He stated:
“…. Does the defendant have a drug problem or does he not? The evidence for this was extremely sparse but it was taken without objection. If appeals are to be conducted or applications for a review of this sort are to be conducted on a proper basis, it appears to us that some greater formality, both from the prosecution and the defence in the presentation of evidence in relation to sentence is necessary. There is no doubt at the moment that Gardaí give evidence of opinion on general matters which if the strict rules of evidence were to be applied would not pass muster and there is certainly no doubt that the defence, by handing in letters of various sorts and getting people to say things which they understand to be so but can’t really prove themselves, depart very significantly from these rules. And, as I say, that must enure against the party bearing the onus of proof on the hearing of an appeal. For instance if proof is required that the defendant is suffering from a drug problem, that proof is defective here, but it was given without objection and it was accepted to the extent that it was in the piece of the transcript I have just quoted, by the learned trial judge. It is very difficult now to turn around and say (when no objection was taken at the time) that the judge erred in principle in taking that into account. It seems to us that these appeals, these applications for review raise serious questions of a procedural nature which have yet to be fully thought through.
The Guidelines also deal with the situation where the court seeks the views of the Director as to whether a custodial sentence is required in a particular case. In such circumstances the prosecutor should not express his or her own views in relation to the matter but must seek instructions from the Director. The prosecutor must make it clear to the court that in order to give instructions in such a case the Director would require sight of all the relevant material before the court, including all reports and transcripts of relevant evidence, and adequate time to give a proper views. This provision aims to give effect to the decision of the Court of Criminal Appeal in People v. Patrick Furlong where Keane C.J., speaking on behalf of the Court, held that it was reasonable to expect the Director, on request, to give such views.
The Code of Conduct for the Bar and the Issue of Advocacy
From the above outlined Guidelines one might infer that the prosecutor is to a degree extending the adversarial system to the sentencing stage where, for example, the prosecutor may refer authorities to the trial judge, this practice not being conditional on a request from the court to do so. Arguably the provision of a selection of ‘relevant’ authorities to the court could amount to a form of advocacy when there is no agreement as to what the relevant authorities are. The Office of the DPP, however, emphasises in its Guidelines that the prosecutor must not seek to persuade the court to impose a particular sentence:
“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.”
The Code of Conduct for the Bar also deals with the duty of prosecuting counsel at the sentencing phase of a trial. It provides as follows:
“Prosecuting barristers should not attempt by advocacy to influence the court in regard to sentence. If, however, an accused person is unrepresented it is proper for a prosecuting barrister to inform the court of any mitigating circumstances as to which they are instructed.”
The Guidelines for Prosecutors are intended to supplement rather than replace the professional codes governing the conduct of counsel acting on behalf of the DPP. The question of whether there is a conflict between the Bar Code of Conduct and the DPP’s Guidelines would seem to depend on what is meant by an “attempt by advocacy to influence the court in regard to sentence”. If there was ever any serious argument that putting relevant evidence before the court, objecting to the admission of inadmissible evidence or citing relevant precedent to the court fell within these prohibited categories that argument is surely unsustainable in the light of the decisions in Keegan and Botha. The Code of Conduct of the Bar must be interpreted in the light of these judgments. In addressing this possible anomaly, I understand that the Bar Council is currently reviewing this section of its Code of Conduct. Meanwhile, at least in the Central Criminal Court, the practice has moved on. Counsel for the prosecution in that court now regularly refer to relevant authorities and on occasion identify aggravating and mitigating factors, a development I shall refer to later in this paper.
Prosecution Reviews of Sentence
An area of sentencing which does not preclude advocacy on the part of the prosecutor is the prosecutorial review of sentence on the grounds of undue leniency. Under the Criminal Justice Act, 1993, the DPP may seek a review of sentence imposed on conviction on indictment. The Court of Criminal Appeal, having considered the application by the DPP, may either quash the sentence and impose such sentence as it considers appropriate, as long as the substituted sentence is one that could have been imposed by the trial court, or may refuse the application. This mechanism for a prosecutorial review of sentence on grounds of undue leniency reflects the approach of other common law jurisdictions. The Criminal Justice Act 1988 (ss. 35 & 36) introduced the procedure in England and Wales. In Scotland provision is made in the Prisoners and Criminal Proceedings (Scotland) Act 1993 and in the Criminal Procedure (Scotland) Act 1995 for a prosecution appeal against sentence on a point of law.
As regards principles governing a sentence review in this jurisdiction, the Court of Criminal Appeal has held that the onus lies on the Director to show that the sentence is not merely lenient but unduly so. In such a review, great weight is attached to the trial judge’s reasons for imposing the sentence. Since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of the court in order to increase the sentence: People (DPP) v. Byrne. There must have been an error of principle by the sentencing court to justify altering the sentence: People (DPP) v. Redmond. The Court of Criminal Appeal will not, therefore, increase a sentence because of a mere disagreement with its level or because, had the court been in the position of the trial judge, it would have imposed a different sentence. It is necessary that there be a substantial departure from the accepted range of appropriate sentences for the offence committed in the circumstances of the case, including the specific elements relating to the offender, or an error of principle in the way in which the trial judge approached sentencing. In order to ensure the effective and consistent application of the power to seek a sentence review the DPP’s Office must be made fully aware of the reasons for the imposition of the sentence at issue by the trial judge as well as the evidence that was before the court at the sentencing hearing. In practice, for this purpose I have to rely on reports from my own solicitor and counsel. It is rarely possible to obtain a transcript within the time allowed to seek a review even though there are cases where knowledge of the precise reasoning of the sentencing judge might have been of assistance. This can in particular arise where a judge has formed an opinion on the likelihood of an offender re-offending based on probation reports or other expert assessments.
Guidance from the Courts
There has been some criticism that prosecution reviews of lenient sentences have been used more frequently than initially envisaged. Having regard to the relatively high proportion of reviews resulting in an increase in sentence – 30 out of 39 in 2007. I do not accept that that criticism is well-founded. The traditional antipathy of the higher courts to anything in the nature of a “tariff”,, which could in turn inform the manner in which trial judges exercise the wide discretion granted to them, has in my opinion contributed to a lack of consistency, predictability and clarity in some cases. I do not, however, wish to overstate this; the number of undue leniency reviews in the average year is about 2% of all indictable cases, which indicates that the DPP’s Office does not consider the other 98% to fall into the unduly lenient category.
In People (DPP) v Tiernan the Supreme Court rejected the notion of a standardisation or tariff of penalty for cases in the following terms:
“Having regard to the absence of any statistics or information before this Court in this appeal concerning any general pattern of sentences imposed for the crime of rape within this jurisdiction, general observations on such patterns would not be appropriate. Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.”
From this it appears that two reasons were cited for the Court’s refusal to lay down any standardisation or tariff – first, the lack of data before the court on patterns of sentencing and secondly a reluctance to interfere with the discretion of trial judges.
It is no longer true that there is no information available concerning the general pattern of sentences imposed for the crime of rape. The cases of The People (DPP) v Kelly and The People (DPP) v Drought have analysed a substantial number of sentences for, respectively, manslaughter and rape. In the last few years the Court of Criminal Appeal has been more active in setting out general principles in sentencing which is a welcome development. In a series of cases culminating in the People (DPP) v. Kelly the method of arriving at a proportionate sentence was examined. A judge should begin by assessing the gravity of the offence itself and locating it on the scale of the available penalty. The usual formula is to consider whether the starting point should be at the low, middle or high end of the scale. The court must then proceed to decide if further credit is to be given for any mitigating factors and if any such factors are present, a further downward departure will be necessary. Application of this two-stage process requires the identification of a starting point for a sentence by reference to a “scale” before then taking into account the mitigating and aggravating factors in the individual case, notwithstanding the dicta in Tiernan disapproving the idea of tariffs.
The case of People (DPP) v. Loving dealt with sentencing for possession of child pornography. On this issue the Court of Criminal Appeal stated:
“An examination of the cases shows that the courts have frequently imposed suspended sentences or fines in cases where much more child pornography was involved and where credit cards had been used. Where the offence is at the lower levels of seriousness, there is no suggestion of sharing or distributing images, the accused is cooperative and it is a first offence, the option of a suspended sentence should at least be considered. Finally, it should be recalled that the applicant will be placed on the register of sex offenders.”
In People (DPP) v. Drought, before imposing a sentence in a rape case in the Central Criminal Court, Charleton J. conducted an extensive examination of all previous reported and unreported decisions of the Superior Courts. He stated that:
“The result is an attempt to divine both the relevant sentencing principles and the parameters within which such a sentence can be imposed for the sake of consistency and predictability.” 
Of course, the approach in Kelly and in Drought, although very useful, has some limitations. Kelly in particular is principally a descriptive exercise in analysing what courts have actually done in manslaughter cases rather than prescribing what appropriate sentences ought to be.
These and other helpful judgments, by elucidating sentencing principles, represent in my opinion a major advance towards achieving consistency and fairness in sentencing. When the ongoing Irish Sentencing Information System (ISIS) project under the chairmanship of Ms. Justice Susan Denham is completed it will represent a further advance. This project will undertake extensive research into sentencing patterns and statistics so that a comprehensive sentencing database system can be established. If feasible the judiciary may then have access to this when deciding on an appropriate sentence in each individual case.
Developments in Practice at Sentence Hearings
One of the effects of the undue leniency jurisdiction has been to put pressure on the prosecution to be more forthcoming in indicating its view on sentencing. In particular, Mr. Justice Carney on a number of occasions both on and off the Bench was critical of the prosecutors’ tendency to say little or nothing at the sentence stage itself about what the appropriate sentence should be, and then to seek a review of the sentence and to be critical of the judge’s approach to sentencing at the appeal stage. I have long felt that there was considerable force in such criticisms. The difficulty from my point of view, however, was that what I regarded as an over-restrictive interpretation by some members of the Bar of its Code of Conduct meant that some barristers were reluctant to say anything about sentencing at all.
The increase in the number of judgments in which the Court of Criminal Appeal has given real guidance on the principles to be applied in sentencing has, however, led in recent times to the development of a practice in the Central Criminal Court whereby it has become common for counsel for the prosecution to be asked where in the Director’s opinion the offence should be located in the overall scale of gravity, in accordance with the methodology suggested in Kelly. In anticipation of such requests I have instituted a practice in Central Criminal Court of seeking the advice of counsel in advance of sentence hearings and giving them instructions on how to respond to such requests. This development has in effect led to a practice in the Central Criminal Court similar to that recommended in the Final Report of the Balance in the Criminal Law Review Group. It is now common for the prosecution to indicate through counsel whether the offence is seen as falling into the upper, the middle or the lower end of the scale, but without putting forward an actual figure. Kelly or Drought have in many cases proved to be of particular assistance in providing authority for that assessment of gravity. Almost always also the judge will indicate prior to sentencing what he or she sees as aggravating or mitigating factors, giving counsel for both sides an opportunity to make submissions on the point should it prove necessary to do so.
On the whole, I think this development is a healthy one which should lead to a greater consistency of approach and perhaps a reduction in the number of appeals, although giving instructions concerning submissions on sentence does place a greater burden on the Office’s resources. In adopting this approach it is, however, important not to lose sight of the principle that the selection of punishment is solely for the judge, not the prosecutor, but that it is proper for the prosecutor to draw attention to relevant precedents, including precedents relating to the question of what is an appropriate sentence.
12 April 2008
- (1989) 3 Frewen 253
-  2 IR 375
-  I.R. 170
-  I.R. 170 at 183
- Guidelines for Prosecutors (revised October 2007) para 8.14
- Ibid para 8.15
- Ibid para 8.16
- Ibid para 8.17
- Ibid para 8.18
-  3 IR 390
- Unreported, Court of Criminal Appeal, 28th April 2003
- At pp. 6-7
- Guidelines for Prosecutors para 8.21
- Unreported, Court of Criminal Appeal, 3rd July 2000
- Guidelines for Prosecutors para 8.20
- Rule 10.23, Code of Conduct for the Bar of Ireland
- Guidelines for Prosecutors para 3.1
- For analysis of possible conflict between the two documents see the Final Report of the Balance in the Criminal Law Review Group
- Unreported, Court of Criminal Appeal, 28th April 2003 &  2 IR 375
- In England and Wales prosecution appeals are taken by the Attorney General.
-  1 I.L.R.M. 279
-  3 I.R. 390
- The Guidelines for Prosecutors set out guidelines for sentence reviews at paras 11.5 – 11.9
-  1 I.R. 250
-  1 I.R. 250 at 254
-  1 ILRM 19
- Unreported, Central Criminal Court, 4th May 2007
-  1 ILRM 19
- Unreported, Court of Criminal Appeal, 10th March 2006
- Unreported, Central Criminal Court, 4th May 2007
- At p. 4 of the judgment