director of public prosecutions document

THE DIRECTORS:

Sir (Charles) Barry Shaw QC 10th April 1972 – 10th April 1989

Called to the Bar of Northern Ireland in 1948; Knighthood conferred upon him in the 1980 New Years’ Honours List; Counsel to the Scarman Tribunal.

Sir Alasdair Macleod Fraser QC 10th April 1989 – present

Called to the Bar of Northern Ireland 1970; Assistant Director 1974; Senior Assistant Director 1982.

THE HISTORY OF THE DPP:

Prior to the creation of the office of the DPP decisions regarding criminal prosecution rested with the Royal Ulster Constabulary (RUC). Although it has always been possible for private individuals to initiate prosecutions, the vast majority of prosecutions used to be conducted by RUC officers, with the proceedings for indictable offences being the responsibility of the Crown solicitors and Crown counsel.¹ The British government hoped replacing the previous system of RUC prosecution with that of an independent prosecutor would dissipate allegations of bias and partisan prosecution.

The Hunt Report paved the way for the reform of the prosecution process when its authors concluded the involvement of the RUC in prosecuting undermined their impartiality, and stated:

‘… our principle reason for proposing this change is the improvement of relations with the public …’²

The report recommended the Scottish system of independent public prosecutors be introduced to Northern Ireland.

In the wake of the publication of the Hunt Report, the government appointed a Working Party, headed by Lord MacDermott, in order to examine the specific recommendation that the Scottish system be introduced to Northern Ireland.³

Following the recommendations of both the Hunt Report on the RUC and the MacDermott Working Party on Public Prosecutions, the role of the RUC in serious prosecutions was diminished and the involvement of Crown Solicitors was abolished. However, Hunt’s recommendation of adopting the Scottish system in Northern Ireland was rejected. Instead, the Office of the Director of Public Prosecutions was established becoming responsible for the prosecution of serious crime including all offences arising out of the conflict.

The legislative framework was provided by the Prosecution of Offences (Northern Ireland) Order 1972⁴, as amended. The Order was made and came into operation on 30 March 1972⁵. The arrangements put in place by the Order were designed to ensure the DPP would be independent of both the government and the RUC.⁶

THE DEPARTMENT OF THE DPP:

The appointment of the Director and deputy Director:

In pursuance of Article 4 of the 1972 Order, the Attorney General for Northern Ireland has the power of appointment and dismissal of both the Director and the deputy Director of Public Prosecutions. For the post of Director, the individual must have practised for not less than 10 years either at the Bar of Northern Ireland or as a solicitor of the Supreme Court. For the post of deputy Director, the individual must have practised for not less than seven years either at the Bar of Northern Ireland or as a solicitor of the Supreme Court. The Attorney General also has the power to dismiss the Director and/or his Deputy on grounds of inability or misbehaviour.

Since September 1971, the Director-designate had been Barry Shaw QC. His appointment was officially announced in the House of Commons debate, during which Sir Peter Rawlinson announced that the Secretary of State had actually appointed Shaw to the post of DPP on 10 April 1972. Prior to this appointment Shaw had served as Senior Crown Counsel for Belfast and Co. Antrim. The Attorney General described him as a distinguished and experienced leader of the Northern Ireland Bar who won the confidence of all sections of the community when acting as the leading Counsel to the Scarman Tribunal and whose appointment had been very widely welcomed in every quarter of Northern Ireland. The broadness of that welcome was highlighted by Bell who pointed to the references made by Hibernia Fortnightly Review describing Mr. Shaw as ‘the right man’, and Ian Paisley who described him to the House as ‘a man of great integrity’.⁷ On 25 April 1972 it was announced that Bernard McCloskey had been appointed as Deputy Director of Public Prosecutions. Sir Peter Rawlinson described McCloskey as an experienced solicitor of the highest reputation who commanded very wide confidence, who had also served with distinction in the Scarman Tribunal.

The important role of the deputy Director should not be understated. The deputy Director has all the powers of the Director, and s/he also has a decision-making role in major cases. Indeed, the deputy Director would make the final decision whether or not to proceed with the prosecution of an individual in some of these cases, without the file being submitted to the Director himself. At the request of the Director, the deputy Director also undertakes various responsibilities arising on an ad hoc basis. These often include, for example, contacts with other agencies within the criminal justice system, policy discussions, and management activities.

The Senior Assistant Directors:

There are two Senior Assistant Directors working within the Department. Casework responsibilities are split between the two with one taking responsibility for those involving alleged offences contained in Schedule 4 of the Northern Ireland (Emergency Provisions) Act 1996, and non-scheduled cases being the responsibility of the other. It is they to whom cases which involve difficult questions of law or evidence are referred, as are cases involving issues of public interest. Once they have clarified the points in question, the Senior Assistant Director concerned either makes the final decision in the case and refers it back for implementation, or he refers it upwards to the Director or the deputy Director if the case merits such an action.

The role of the Senior Assistant Directors also involves the consideration of appropriate courses of action for plea-bargaining. This responsibility is not confined to those cases with which the Senior Assistant Director has been involved, but extends to all cases tried.

The Senior Assistant Directors’ duties also include the dissemination of the Director’s policy throughout the Department, the allocation of professional staff responsibilities, and general liaison with other agencies in the criminal justice system.

The Departmental staff:

The staff of the Department of the DPP are composed of both professional staff and civil servants,⁸ although the balance between the two is not publicly known.⁹ The professional staff are solicitors or barristers entitled to practice in Northern Ireland. All staff are members of the Northern Ireland Civil Service recruited by the Department of Finance and Personnel under the auspices of the Civil Service Commissioners. They are then transferred to the Northern Ireland Office and then to the Department of the DPP. Staff within the Department, whether professional or otherwise, as civil servants are subject to the disciplinary procedures which apply to the Northern Ireland Civil Service. In addition, professional staff, all of whom are members of their professional bodies, are liable to the discipline of those bodies.¹⁰

Article 4(4) of the 1972 Order provides that‘... the deputy Director and all such professional and other officers and servants shall in all matters be subject to the direction and control of the Director.’ This ensures that, although staff are technically employed by the Department of Finance and Personnel and are seconded on a full-time basis to the Northern Ireland Office, they are fully under the control of the Director as opposed to the Secretary of State. This was intended to prevent political pressure diminishing the independence of the DPP, although it is somewhat irrelevant given the influence of the Attorney General. It does, though, prevent everyday interference by a political figure.

THE TRANSITIONAL STAGE

Between April 1972 and 31 December 1972 there was a transitional phase as the Director began to undertake his responsibilities under the 1972 Order. Throughout this period a skeleton staff was also needed to assist the Director.

During this transitional phase, investigation files for consideration were sent from RUC headquarters directly to the Director’s office rather than to that of the Chief Crown Solicitor. Those summary proceedings instituted by the Director were usually conducted by RUC officers. In difficult summary cases the Crown Solicitor for a particular county conducted the proceedings as an agent of the Director under Article 4(7) of the 1972 Order. Cases to be heard on indictment were conducted by the standing Crown Counsel then holding those posts. This transitional phase was utilised to establish appropriate office procedures and to plan how the Department would function once it became fully operational. Arrangements for the employment of full-time staff were also made with public advertisements and the holding of Civil Service Selection Boards.

On 1 January 1973, the majority of professional officers appointed to the Department took up their posts. The appointments drew on the experience of those who had been involved previously in prosecution work in the North, while also enlisting individuals from other fields of expertise to encompass a broader spectrum. The office of Crown Solicitor for each county was abolished on the same day as the Departmental staff took office.

Subsequently, on 1 January 1974, the office of Chief Crown Solicitor ceased to exist. Robert Bell describes this watershed: ‘The abolition of the office of Crown Solicitor and the establishment of a Director of Public Prosecutions for Northern Ireland marked the end of an era stretching back to the early nineteenth century and heralded the commencement of another in the administration of criminal justice.’¹¹ The hope that the prosecution process could be removed from the political battles raging around it was sadly misplaced.

THE STATUTORY FUNCTIONS OF THE DPP:

The chief function of the DPP is to bring prosecutions for indictable criminal offences. The RUC continue to have responsibility for prosecuting minor cases. ‘The Department of the DPP therefore handles the prosecution of all indictable offences and such summary offences which are considered should be dealt with, including all offences arising out of the conflict, and also offences allegedly committed by non-civilians.’¹² The following process is then instituted:

‘Both in England and Wales and in Northern Ireland it is the duty of the Director of Public Prosecutions to consider the weight of the evidence against potential defendants. That consideration must be conducted without bias, whoever the potential defendant may be. The question which has to be decided is whether, on the evidence available, there is a reasonable prospect of securing a conviction in the Court which has jurisdiction to try the case.’¹³

If a decision is taken to prosecute, the DPP decides what the charges should be and whether the defendant should be tried summarily or on indictment. The DPP is not limited to initiating prosecutions following RUC investigations. He may also require the RUC to investigate incidents brought to his attention by some other channel. He also conducts prosecutions on behalf of government departments when required to do so in writing.

The powers and functions of the DPP are outlined in Articles 5 to 7 of the Prosecution of Offences (Northern Ireland) Order 1972. Article 5 of the 1972 Order sets out the statutory functions of the DPP. These functions are as follows:

The Director must consider information brought to his attention either by the Chief Constable of the RUC (in pursuance of Article 6(3) of the Order), the Attorney-General, or by any other authority or person, relevant to the initiation or continuation of criminal proceedings or the bringing of an appeal. (Article 5(1)(a))

• The Director initiates, undertakes and carries on prosecutions, including prosecutions in all Crown court cases, and the prosecution of more serious cases in the magistrates’ courts. (‘on behalf of the Crown proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him.’) (Article 5(1)(c));

• To act on behalf of the crown in bail applications (Article 5(1)(d));

• To act on behalf of the crown in criminal proceedings in the County Court, in the Court of (Criminal) Appeal and in the House of Lords (Article 5(1)(e,f)).

In pursuance of Article 3(2) of the Order the Director shall discharge his functions under the superintendence of the Attorney General and shall be subject to the direction of the Attorney General. The Director and deputy Director are subject to the Attorney General and Parliament for the due performance of their functions through Article 5(2) of the 1972 Order.

The DPP’s office represents the Crown in all criminal proceedings in the Crown Court, the Court of Appeal and the House of Lords. For these purposes it retains the services on a more or less permanent basis of three senior and three junior Crown counsel, and it functions as the solicitors for these barristers. The Office also engages barristers to conduct most prosecutions on behalf of government departments in magistrates’ courts when requested in writing to do so and it will act for the Crown in appeals to a county court by defendants who have been convicted in a magistrate’s court.¹⁴

In all but minor cases, when the RUC have completed their investigations into an offence, during which time the accused may have been remanded in custody or on bail, or may not even have been charged at all, they will pass the investigation file to the Director’s office. Here it will be considered by a member of that office under the supervision of an Assistant Director, and a decision will be taken as to the offences, if any, for which the accused should be prosecuted. The DPP’s office itself cannot carry out further investigations into a case, but it can request the RUC do so. It can also consider information from other sources if it is sent directly to the Office.

‘According to the Attorney-General’s statement of 19 March 1986, the DPP’s constitutional function is restricted to assessing how a court will treat the evidence presented to it and that prosecutions are justified if there is a ‘reasonable’ expectation of conviction. The DPP for England and Wales told the Royal Commission on Criminal Proceedings in the late 1970’s that ‘a reasonable prospect of conviction’ meant ‘... whether ... it seems rather more likely that there will be a conviction rather than an acquittal.’’¹⁵ It should be noted that a tribunal is required to find a defendant guilty only if there is proof ‘beyond reasonable doubt’ in order to secure a conviction.

If a decision to prosecute an individual is felt justified, the Office will direct which charges are to be pressed, and, if a choice is available, whether the trial is to be summary or on indictment. If a trial on indictment is directed, the committal proceedings will be arranged and conducted on the prosecution side almost entirely by the DPP’s office. If the accused person is then committed for trial to the Crown Court the committal papers and the RUC investigation files are sent by the DPP’s Office to Crown Counsel.¹⁶

The Directors indirect investigatory function:

Unlike the Procurator Fiscal in Scotland, the DPP for Northern Ireland does not possess any direct investigatory function. This is as a result of the insistence contained in the MacDermott report (1970) that investigation and prosecution are two separate functions which should not be combined. The Report was specifically referring to the separation of these functions that had previously been performed by the RUC.¹⁷

While the investigation process is vested exclusively in the Chief Constable, Article 6(3) of the 1972 Order does provide the Director with an indirect investigatory function. This arises from the provision contained in the sub-clause:

‘It shall be the duty of the Chief Constable, from time to time, to furnish to the Director facts and information with respect to -

(a) indictable offences alleged to have been committed against the law of Northern Ireland;

(b) such other alleged offences as the Director may specify.’

Thus, the Chief Constable is under a statutory duty to submit to the Director the fruit of certain investigations, even where the RUC view may be that there is insufficient evidence to prosecute an individual. If there is an apparent lack of evidence at the end of the investigation process this is addressable by the provision in Article 5(1)(b) of the 1972 Order enabling the Director to require further investigations be carried out. This sub-clause provides it shall be the function of the Director:

‘To examine, or cause to be examined, all documents that are required under Article 6 of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated.’

Article 6(3) vests an additional indirect investigatory power to the Director:

‘It shall be the duty of the Chief Constable ... at the request of the Director, to ascertain and furnish to the Director information regarding any matter which may appear to the Director to require investigation on the grounds that it may involve an offence against the law of Northern Ireland, or information which may appear to the Director to be necessary for the discharge of his functions under this Order.’

Therefore, when a matter comes to the attention of the Director, through any means, he may request it be investigated by the RUC.¹⁸ One of the most noteworthy uses of this power was the request that led to the Stalker/Sampson inquiry¹⁹.

Overall, therefore, while the Director has no direct investigatory role, he does possess an indirect investigatory role of considerable potential.

The consideration of reports:

Article 5(1)(a) of the 1972 Order states that it shall be the function of the Director:

‘To consider, or cause to be considered, with a view to his initiating or continuing in Northern Ireland any criminal proceedings or bringing of any appeal or other proceedings or in connection with any criminal cause or matter in Northern Ireland, any facts or information brought to his notice, whether by the Chief Constable acting in pursuance of Article 6(3) of this Order or by the Attorney-General or by any other authority or person.’

This provision gives the Director both the freedom and the responsibility to consider information brought to his attention from any source. In practice the vast majority of cases submitted to the Director are done so by the RUC, and the other potential sources are as follows:

• Almost all the remaining cases coming to the attention of the Director emanate from government departments²⁰, although the majority of these are now dealt with by the offices of the Director outside of Belfast;

• A third source is that referred to in Article 5(1)(a) of the Order, ‘...the Attorney General or ... any other authority or person.’ Such matters the Attorney General may raise include allegations of criminal offences passed on to him from other MP’s or a constituent, or allegations that have otherwise come to the attention of the government. Matters brought to light by other sources include those raised by MP’s personally, or other elected representatives, or members of the public. This provides a rare opportunity for the private individual to play an important role in the prosecution of a criminal offence, although this role is somewhat diminished if the individual is raising a sensitive or controversial matter with a view to securing a prosecution;

• By virtue of Article 6(1), where a person is committed for trial the clerk of the court to which he is committed is responsible to see that copies of all informations, depositions, examinations, statements and recognisances connected with the charge are delivered without delay to the Director;

• Article 6(2) provides that where a coroner believes the circumstances of a death he has investigated appear to disclose the committal of a criminal offence, he is under a duty to furnish the Director with a written report of those circumstances.

The discretion to prosecute:

Just as the Director has the initiative under Article 6(3) as to those offences which must be reported to him, the DPP has a discretion as to which summary offences or classes of summary offences s/he wishes to prosecute, or not as the case may be, under Article 5(1)(c) of the Order.

This function is provided for in Article 5(1)(c) of the Order, which provides that the function of the Director shall be ‘Where he thinks proper to initiate, undertake and carry on, on behalf of the Crown, proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him.’ It is not insignificant that proceedings initiated and carried on by the Director are done so ‘on behalf of the Crown’ (Article 5(1)(c)). These are therefore public prosecutions undertaken by a public servant in the name of the ‘sovereign’. Thus, the view of Sir Theobold Mathew, a former DPP for England and Wales, that the Director in England was merely a public officer prosecuting in his capacity as a private person and that there were no ‘public’ prosecutions in England,²¹ cannot be applied to Northern Ireland.

The Director possesses a similar discretion in respect of deciding what type of case he wishes to prosecute on behalf of government departments. Some cases are recognised by the Director as being far more efficiently examined by the relevant government department where the staff have more expert knowledge.

In the performance of this statutory discretion as to whether or not he will institute or continue proceedings, the Director should, in theory, only consider proceeding if two criteria are fulfilled:

1. There must be a reasonable prospect of conviction;

2. It must be concluded that proceedings are in the public interest.

The DPP, in reaching a decision, is not bound or influenced on whether a prosecution is warranted by the fact the RUC may have charged the reported individual. The RUC are required by international law to promptly prefer charges upon the accused. This initial charge is simply a part of the process involved in bringing a person promptly before a court; it should not influence the DPP’s decision in relation to the prosecution of that person. The DPP can direct the holding charge be withdrawn and be replaced with a more appropriate charge, or he may decide on the withdrawal of all charges and the bringing of the person before the Magistrates Court at the earliest possible moment so the proceedings can be terminated. The DPP is intended to reach his decision on the basis of independent judgement.

Making representations at applications for bail:

This function is provided for by Article 5(1)(d) of the 1972 Order, which states that:

‘Where a person is in custody charged with or convicted of an offence and application is made to any court for bail, to cause, in such cases as the Director thinks proper, enquiries to be made into the facts and circumstances and if necessary cause such representations to be made regarding the granting of bail as he may think fit including representations as to the sufficiency of the surety or sureties offered and as to the amount of bail.’

Whenever a defendant is applying for bail the DPP’s office can make representations in such cases as the Director thinks fit, which is intended to ensure that uniform standards on this issue are applied throughout Northern Ireland.

The duty of formulating the appropriate representation lies with the staff of the Director’s High Court Section and with counsel who appears. It is incumbent upon both to ensure submissions are made in accordance with the Director’s general policy in the light of the law and practice established by the courts.

The Director is represented at High Court bail applications by one of three experienced junior counsel. Counsel instructed to appear on behalf of the Director do so to assist the court with regard to the relevant facts and law and to put to the court the Director’s representations.

The final decision to grant or to refuse bail is the responsibility of the court, it is not a decision taken by the DPP himself.

Appeal proceedings and applications for judicial review:

The DPP is responsible not only for the initiation of certain criminal proceedings, but also for representing the Crown in any appeal arising out of those proceedings. This arises from the provision contained in Article 5(1) of the 1972 Order that it shall also be the function of the DPP:

‘(e) To represent the Crown in any proceedings brought in the County Court in respect of any determination or order made in a Magistrates’ Court on or in connection with a summary offence;

(f) To represent the Crown in any proceedings for the Court of Criminal Appeal or before the Supreme Court or the House of Lords in a criminal cause or matter.’

Since the majority of appeal proceedings are launched by defendants, the DPP is usually the respondent in such proceedings.

The function of the DPP to represent the Crown on appeal in the courts mentioned above extends beyond those cases in which his department conducted the original proceedings, to other cases where the original proceedings were carried out by, for example, the RUC or a government department.

The DPP is also closely involved in any reference on a point of law made by the Attorney General, following from an acquittal on indictment in Northern Ireland either to the Court of Appeal or to the House of Lords under sections 15 or 34 of the Criminal Appeal (Northern Ireland) Act 1980.

It is also the function of the DPP to apply in appropriate cases to the High Court in Northern Ireland for judicial review: ‘Where, in the opinion of the Attorney General the public interest so requires, to apply to the High Court in the name of and on behalf of the Attorney General for any order of judicial review with respect to any criminal proceedings or any matter arising thereout.’²² Such cases are not numerous. Application for an order of judicial review is made either in cases in which persons on arrest had given the names of innocent parties, or cases in which Resident Magistrates, in sentencing convicted persons, had exceeded their powers.

The taking over of private prosecutions:

If a proposed prosecution is a private one, or one to be brought by the RUC, the consent of the DPP (or of the Attorney General) is very often required before the proceedings can officially be begun and the DPP can step in to take over private prosecutions if this is in the public interest.²³ Controversially, this means the DPP was granted the means of controlling a private prosecution, in addition to the mechanism of consent provision. This was provided for in Article 5(3) which asserted that:

‘Nothing in this Order shall preclude any person from initiating, undertaking or carrying on any criminal proceedings, but the Director, subject to any provision contained in the Criminal Justice Act 1987, may undertake at any stage the conduct of those proceedings if he thinks fit.’

This provision allows the DPP to take over, and assume, at any stage, the conduct of proceedings commenced by a private prosecutor. While this enables the resources of the prosecuting authorities to be utilised, controversy arises as a result of the courts having held that this provision gives the DPP the power to take over proceedings begun by another for the sole purpose of aborting them. Any prosecution, whether public or private can also be brought to an end by the Attorney General entering a nolle prosqui (‘unwilling to proceed’)²⁴.

The only criminal proceedings in Northern Ireland that the DPP does not have the power to take over are those being conducted by the Director of the Serious Fraud Office.

JUDICIAL REVIEWABILITY OF THE DPP’S DECISIONS:

In our correspondence with the Department of the DPP, the correspondent stated that ‘Decisions for no prosecution may also be subject to judicial review.’ This is despite a traditional reluctance on the part of the courts to make judicial review available against prosecuting authorities. However, the courts in Northern Ireland, in England and Wales and in the Republic of Ireland have recently developed jurisdiction to review decisions which have been made in the exercise of discretion by prosecuting authorities. Osborne asserts that in the United Kingdom and in Ireland ‘there are now clear dicta to the effect that the DPP has no immunity from review.’²⁵ The accumulative result of dicta in ex parte GL²⁶ and in McKennas’s Application²⁷ is that the possibility to seek review of decisions made is not limited to cases of mala fides (‘bad faith’), but include departure in the exercise of a discretion based upon recognised policy. In the Republic of Ireland the grounds of review were expanded by the recognition of the High Court in Murphy v. Director of Public Prosecutions²⁸ that there is a discretion to review where the DPP fails to conform to the canons of natural justice and to observe fair procedures. This reaffirmed the principle laid down by Finlay CJ in Flynn that ‘Any act done by the DPP in the course of a criminal prosecution which contributed to an unfair or unjust proceeding is restrainable by the courts on that ground alone.’

While this possibility is now recognised, judicial review of a decision made by the DPP is intended to be a process to be instituted only once exhaustive recourse is made by a discontented accused or complainant to the alternative remedies and protections afforded by criminal procedure. This is in order to prevent the floodgates opening to numerous calls for judicial review of prosecutorial decisions. Nonetheless, the availability of an alternative remedy does not per se prevent the possible recourse to judicial review, as any such alternative remedy must be both adequate and effective.²⁹

‘It has been argued that the role of judicial review … should be to augment the present protections within criminal procedure; it should be to provide a final safeguard against the misuse or abuse of discretionary powers by prosecuting authorities, after all other potential remedies, such as abuse of process and private prosecutions, have been exhausted, in so far as those remedies were adequate and effective.’³⁰

The process is not something the courts are yet prepared to institute lightly or frequently as it goes to the heart of a vital element of the state criminal procedure. However, the potential to judicially review the DPP’s prosecutorial decision is now apparent. The potential exists for a court to strike down by way of judicial review a decision to prosecute, not to prosecute, to continue a prosecution or to discontinue a prosecution if it has been reached on the basis of unreasonableness if all other adequate and effective alternative remedies have been exhausted. What the main stumbling block appears to be now, though, is that it is nearly impossible in most cases to achieve a substantial burden of proof that will prove the prosecutorial decision has been made in a manner that is outside of the remit and guidelines for the DPP’s decision-making procedure. This is because judicial review is not an appeal from the actual prosecutorial decision reached and its merits, rather it is an appeal from any impropriety that has affected that decision. This is obviously something immensely hard to prove, inevitably made all the harder by the secrecy that embraces the prosecution process.

SUMMATION:

There are no published guidelines for the DPP,³¹ but a clearer picture of the role and functions and duties of the DPP has been provided above. In England and Wales the Code for Crown Prosecutors lays down how prosecutors should make prosecution decisions, and although the Code is not specifically designed for Northern Ireland they can provide guidelines for the DPP to work by. The duty of the Crown Prosecution Service in England and Wales is defined by this Code as follows: ‘to make sure that the right person is prosecuted for the right offence and that all the relevant facts are given to the court.’³² There is no reason to suggest the duty of the office of the DPP in Northern Ireland should be any different. The commencement of the Human Rights Act 1998 in October 2000 will ensure that the right to a fair trial provided for in the European Convention on Human Rights (ECHR) will be directly applicable in domestic law, and this is something the DPP/new prosecuting authority will have to consider when he is making his prosecutorial decisions.

For less serious crimes the RUC conduct the prosecutions. For more serious offences, including scheduled offences, the DPP conducts the prosecution but is not involved in the investigative process. As the DPP is not involved in the investigative process, his/her role is essentially one of reviewing the facts of the case and subsequently instituting prosecution, or requesting the RUC to seek more evidence in cases where the likelihood of prosecution is not favourable.

A system of delegation operates within the Department of the DPP which ensures that each case is dealt with at a level commensurate with its degree of difficulty: it is only those exceptionally difficult or sensitive cases that are dealt with by the Director himself. The typical procedure in the decision-making process is therefore as follows: the RUC investigation file for the specific case is passed to the office of the DPP where it is allocated to an experienced lawyer for consideration. The advices of senior counsel are obtained in many cases before a decision to prosecute is made. All of the evidence and information reported in the RUC investigation file, together with senior counsel’s advices if sought, and the recommendation of the lawyer to whom the file was allocated are then used to determine whether the case should proceed for prosecution, and, if so, what the charges conferred shall be. In some cases the Director or the deputy Director is consulted before a final decision is made.

The decision-making process largely centres on the likelihood of a conviction being achieved if a prosecution is proceeded with. If a reasonable prospect of conviction is likely then, in theory, a decision will be made to prosecute the suspect. The DPP’s office defined this concept of ‘a reasonable prospect of conviction’ as follows:

‘A reasonable prospect of conviction exists if in relation to an identifiable individual there is credible evidence which the prosecution can adduce before a court upon which evidence an impartial jury (or other tribunal), properly directed in accordance with the law, may reasonably be expected to find proved beyond reasonable doubt the commission of a criminal offence by the individual who is prosecuted.’³³

If a decision is made to prosecute, the DPP must decide what the charges should be and whether the defendant should be tried summarily or on indictment. The DPP is not bound by any earlier charge brought by the RUC as he has the opportunity to consider the investigation file passed on to him by the RUC completely afresh. The file is scrutinised under the supervision of an Assistant Director and before a decision is made the office may require the RUC to further investigate the matter. The DPP is not limited to initiating prosecutions following RUC investigations; he may also require the RUC to investigate matters brought to his notice by some other channel. He also conducts prosecutions on behalf of government departments when requested in writing to do so.³⁴

Despite this delegation within the Department of the DPP the influence of the Director is far greater than simply consideration of key cases. It is s/he who determines the prosecution policies to be applied by his staff. This obviously has an important impact on the ethos of the Department, and affects the manner in which potentially all cases are examined. His superintendence to the Attorney General also means the Director is responsible for the overall direction and management of the entire Department. The policies used to make decisions in the cases referred to the Department are therefore of key significance as the DPP is accountable to the Attorney General, and through the Attorney General to Parliament, for the decisions made on his behalf.

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Introduction to director of public prosecutions document