Evidence submitted by the Director of
Public Prosecutions, Ireland
Thank you for your letter of 21 March 2007 in
which you request me to give written evidence to the House of
Commons Constitutional Affairs Committee which is considering
the constitutional role of the Attorney General.
I note that the evidence you seek is in relation
to the three potential models which are set forth in a press notice
issued by the Committee in 2007.
I do not think it appropriate for me as an Irish
citizen to make submissions to the Committee as to what model
would most appropriately suit the conditions of the United Kingdom.
However, it may be of interest to the Committee if I say a little
about the model we have adopted in my own jurisdiction in Ireland.
I should begin by saying by way of my own background
that following eight years practice at the Bar in Ireland in 1981
I became a full-time legal advisor in the Office of the Attorney
General. From 1995-99 I was the senior legal advisor in the Office
of the Attorney General. Since 1999 I have been the Director of
Public Prosecutions in Ireland. I served as a member of the Constitutional
Review Group in Ireland which among other issues looked at the
constitutional role of the Attorney General of Ireland, reporting
in May 1996.
What follows is a very brief summary of the
structure of the law offices in Ireland. You can find a full account
of this subject in Professor James Casey's book The Irish Law
Officers: Roles and Responsibilities of the Attorney General and
Director of Public Prosecutions (Round Hall Sweet and Maxwell
1996).
The Constitution of Ireland, adopted in 1937,
provides for an Attorney General "who shall be the advisor
of the Government in matters of law and legal opinion". The
Constitution also provided for the prosecution of all indictable
crime in the name of the People at the suit of the Attorney General
or some other person authorized in accordance with law to act
for that purpose. From 1937 to 1974 the Attorney General continued
to exercise both these functions. In addition to exercising the
function as legal advisor to the government, the Attorney General
had, and continues to have, a function to act as representative
of the public in legal proceedings for the assertion of protection
of public rights. (See Ministers and Secretaries Act, 1924, section
6.)
The Attorney General does not have executive
responsibility other than for the management of his own Office
which is responsible for handling the State's litigation and the
drafting of Parliamentary legislation as well as the giving of
advice to the Government.
Responsibility for prisons, policing and the
courts, as well as for law reform, rests with the Minister for
Justice, Equality and Law Reform. There is no equivalent of the
British Lord Chancellor. The Attorney General is also responsible
for the Law Reform Commission's vote and has the power to refer
matters to them. While the Constitution prohibits the Attorney
General from being a member of Government the modern practice
is for the Attorney General to attend all cabinet meetings since
almost everything discussed at cabinet may require legal advice.
The Prosecution of Offences Act, 1974, effected
a transfer to the newly created office of Director of Public Prosecutions
of "all the functions capable of being performed in relation
to criminal matters and in relation to election petitions and
referendum petitions by the Attorney General" immediately
before the commencements of that Act.
The consent of the Attorney General to criminal
prosecution is still required in a small number of areas. These
are chiefly matters which may involve international or diplomatic
consequences and include breaches of the Geneva Conventions, Official
Secrets Act offences, genocide and offences committed in Northern
Ireland which may be prosecuted under the Criminal Law (Jurisdiction)
Act, 1976. The Attorney General also prosecutes certain sea
fisheries offences as well as dumping at sea and sea pollution
offences.
The rationale behind the creation of the Office
of Director, as given in the parliamentary debates at the time,
was twofold. Firstly, it was thought desirable to reduce the Attorney
General's workload because of the increased burden of advising
the Government in relation to matters of ECC law following Ireland's
accession to the European Communities. Secondly, the change was
intended to avoid what was thought to be a possible public perception
that political influence could be brought to bear on prosecutorial
decisions. While it was not conceded at the time that such decisions
had ever in fact been influenced by political considerations,
it was acknowledged that the practice of members of parliament
making representations existed.
The model adopted in Ireland in 1974 differed
significantly from the English model of a DPP in that the Attorney
General was not given any function of general superintendence
over the work of the Director. The act specifically provided that
the Director should be independent in the performance of his functions.
(Section 2(5))
So far as concerns the Director's relationship
with the Attorney General, the Act merely states that "the
Attorney General and the Director shall consult together from
time to time in relation to matters pertaining to the functions
of the Director". (Section 2(6))
I have had experience of operating this provision
firstly as the principal officer in the Attorney General's Office
for four-and-a-half years and latterly as Director of Public Prosecutions
for seven-and-a-half years. Consultations may be held for a variety
of reasons. For example, there are many cases in which both the
Director and the Attorney General are named as parties. Reform
of the law is also a matter which may give rise to consultations.
They have, in my experience, never been used as a means of suggesting
to the Director how he should approach any particular prosecutorial
decision.
There are a number of provisions in the legislation
designed to reinforce the independence of the Director. It is
unlawful to communicate with the Director in order to influence
the making of a decision to withdraw or not to initiate criminal
proceedings or any particular charge in criminal proceedings (section
6(1)(a)). This provision does not apply to defendants, or their
legal or medical advisors or members of their family. It does,
however, preclude political representatives from making representations
of this sort.
In Ireland the decision whether to seek a review
of a sentence on grounds of undue leniency is a matter solely
for the Director and not for the Attorney General. There is a
prohibition on communicating with the Director for the purposes
of influencing decisions in relation to applications to review
sentence on the grounds of undue leniency.
Appointment to the office of Director is open
to any barrister or solicitor in the State of 10 years standing,
and for this purpose barristers and solicitors employed by the
State are eligible. The Taoiseach has power to fix the terms and
conditions of appointment. Both my predecessor and I were appointed
with tenure until the normal retirement age of 65. The appointment
is made by the Government, but the Government is required in the
first instance to appoint from persons recommended as suitable
by a committee consisting of the Chief Justice, Chairman of the
Bar Council, President of the Law Society, Secretary General to
the Government and Director General in the Office of the Attorney
General.
The DPP may be removed from office by the Government
but only after consideration by them of a report of a committee
consisting of the Chief Justice, a judge of the High Court nominated
by the Chief Justice and the Attorney General into the condition
of health, either physical or mental, of the Director, or into
the conduct of the Director, either generally or on a particular
occasion.
The Director's Office is accountable for its
expenditure of public money in the same manner as any other Government
Department or Office. The Director is not otherwise accountable
to Parliamentary committees other than the Public Accounts Committee.
I have, however, voluntarily appeared before Parliamentary Committees
on a number of occasions but never to discuss specific cases.
The Director's Office is independent of all Government Ministers
and has its own financial vote. Where parliamentary questions
relating to the Office are asked it is usually the Taoiseach who
will answer them but invariably he will decline to be drawn into
discussion about individual prosecution decisions and will cite
the Director's statutory independence as the reason he cannot
do so. The Attorney General is not answerable for the decisions
of the Director. The Attorney General is not necessarily a member
of Parliament and in the last 35 years there have only been three
Attorneys who were.
It has not hitherto been the practice of the
Director to give reasons in public for decisions to initiate or
not to initiate a prosecution, although it is the practice to
explain the reasons for decisions to the Garda Síochána
(police) when communicating decisions to them. The question of
giving reasons to victims of crime is under consideration at present
in the Director's office and a decision will be made in the near
future whether any change in the current practice is recommended.
However, the Director has, through the system
of published guidelines, set out the criteria which are used in
order to guide prosecution decisions. The public interest criteria
applied by the DPP in making prosecution decisions are discussed
in some detail in the Director's published guidelines (see Guidelines
Chapter 4).
The criteria governing decisions to prosecute
or not to prosecute are similar to those in operation in the United
Kingdom, that is to say, there is a two-stage test, firstly as
to whether there is sufficient evidence to prosecute, and secondly
whether a prosecution would be in the public interest. These matters
are dealt with fully in the published guidelines of the DPP which
may be accessed on the Office's website at www.dppireland.ie .
Unlike in England and Wales we do not operate a "more than
50% rule" when evaluating the question of whether there is
sufficient evidence to prosecute. We take the view that what is
required is that there be a reasonable prospect of securing a
conviction before a reasonable jury or a judge in cases heard
without a jury. (Guidelines, 4-9)
In relation to unlawful communications with
the Director, procedures are in place in the Office to see that
a person making such a communication is informed of the provisions
of the law in this regard and that the communication is not brought
to the attention of any person who is dealing with the file. Indeed,
under the Act, there is a prohibition on the person dealing with
a file having regard to an unlawful communication.
In conclusion, I have set out the above provisions
in the hope that they may be of some assistance to your committee
in considering your recommendations. From time to time there has
been criticism that the basis for prosecution decisions within
our jurisdiction is not transparent. It is difficult to see how
one can establish any system of accountability to government or
parliament which does not at the same time open up the possibility
of political interference in the process. I believe that there
is general public confidence in this jurisdiction that there is
no political interference in prosecution decisions. It is certainly
true that the lack of political accountability coupled with the
policy of not giving reasons in public for decisions can sometimes
lead to a situation where there is a lack of understanding by
the public as to the reasons why a particular decision has been
arrived at. This is undoubtedly a problem, and the question arises
as to whether it is an acceptable price to pay for an independent
system. As I said earlier, the present system of not giving reasons
for decisions, apart from giving them to the police (or other
investigating agency), is under review.
Finally, in Ireland the Attorney General continues
to exercise a public interest function as well as acting as adviser
to the Government. This can cover a wide variety of issues—for
example, litigating on behalf of the public as a whole on an issue
such as public rights of way, or seeking a civil remedy to restrain
unlawful behaviour, or acting on behalf of persons who are incapable
themselves of asserting their rights (such as unborn persons).
This dual function has been criticised on the grounds that a Government
might itself act contrary to the rights of the public. The Constitution
Review Group Report in 1996 recommended that the Attorney General
should retain the two roles and that the small volume of public
interest work would not justify the creation of a separate office.
It there was a conflict the Review Group considered the Attorney
General could assign the responsibility to act in the public interest
to another senior lawyer.
I trust the foregoing information may be of
some assistance to the Committee and if I can be of any further
assistance please let me know.
James Hamilton
April 2007
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