James Hamilton

Director of Public Prosecutions Ireland

Prosecution of Offences Act 1974:

• s. 2(5) states that the Director “shall be independent in the performance of his functions”.

• s. 2(7) provides for the appointment of a high level committee to select candidates for appointment as Director.

The Main Principles of the Prosecutor’s Independence

Prosecution of Offences Act 1974 (contd.):

• s. 2(9) provides for a high level committee where it becomes necessary to inquire into the conduct or state of health of the Director.

• s. 6(1)(a) states that it is unlawful to communicate with the Director or any prosecutor for the purposes of influencing a decision.

Models of Prosecution• The Irish Model does not allow the Attorney

General a power to give instructions. Similar models can be seen in some Australian states and Canadian provinces and that proposed for Northern Ireland.

• It is common to have model where the DPP is answerable to some degree to AG, who will have either: - Power to instruct coupled with requirement that

made public;- Power of “general superintendence”;- Power to give instructions.

Sources

• Council of Europe’s Commission for Democracy through Law (the Venice Commission)

• Council of Europe Rec(2000)19 on the Role of Public Prosecution in the Criminal Justice System

• Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors adopted by the International Association of Prosecutors on 23 April 1999

Van Den Wyngaert has noted

“criminal procedure, more than any other legal discipline, resists harmonisation. A political reason for this phenomenon may be that criminal procedure is essentially linked to State sovereignty and the rules of criminal procedure belong to those rules which set the limit of the state of the powers of a state vis-a-vis it’s citizens. As such, they regulate the State’s monopoly on the use of power, not only in respect of convicted criminals but also in respect of suspects, who may be subjected to such measures as arrest, search and seizure and telephone surveillance. From this perspective, criminal procedure is a standard to measure the degree of democracy of a given society. It is hardly surprising that States have a tendency, not only to be chauvinistic about their own criminal justice systems, but also to be suspicious about foreign systems. Efforts towards harmonisation in this field are therefore very often considered as an unacceptable interference in their domestic affairs.”

- Van Den Wyngaert, Criminal Procedure Systems in the European Community, 1993

Arrangements Within Prosecution Systems

• common law adversarial systems versus civil law inquisitorial systems

• part of the executive versus part of the judiciary

• discretionary prosecution (the opportunity principle) versus mandatory prosecution (the legality principle)

• individual prosecutor independent of every other versus a hierarchical system

• no functions other than prosecution versus considerable powers of ensuring compliance with the law in general

Responsibilities of Public Prosecutors in Ensuring Due Process and Protection of Human Rights in

the Criminal Justice Systems of Participating States

• Duty as “minister of justice”• Recommendation Rec (2000)19:

“In all criminal justice systems, public prosecutors:– Decide whether to initiate or continue prosecutions; – Conduct prosecutions before the courts; – May appeal or conduct appeals concerning all or some

court decisions.”• Obligations under Article 5 and 6 of the European Convention

on Human Rights.

Duties Towards Individuals

• Carry out function fairly, impartially, objectively;

• Abstain from discrimination;

• Ensure equality before the law;

• Refrain from continuing or initiating prosecution where investigation has shown unfounded.

“Public prosecutors should not present evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to methods which are contrary to the law. In cases of any doubt, public prosecutors should ask the court to rule on the admissibility of such evidence.”

- Recommendation Rec (2000) 19

Other Duties

• Obligation to disclose information which may affect justice of proceedings;

• Take proper account of interests of witnesses;

• Take proper account of views and concerns of victims;

• Duty to keep well-informed;• Duty to remain unaffected by individual or

sectional, as well as public or media pressures;

• Duty to be consistent.

Importance of the Relationship Between Public Prosecutors and the Executive Powers

in Upholding the Rule of Law

Drawbacks of independence:• history of very powerful prokatura can make

some suspicious of an independent Director;• although not motivated by political pressures

no guarantee that power wont be arbitrarily exercised;

• argued that there is a need to have democratic control over prosecution policy.

“Like it or not, a country’s judicial policy in the criminal and civil law spheres is determined, in a democratic context, by the government as an offshoot of the parliamentary majority. This policy has to be carried out by the government’s representatives who are the members of the prosecution department.Action in pursuance of a policy, however, in no way implies that prosecutors are personally issued with specific orders in a given case. Each prosecutor retains freedom of decision, though in the framework of ministerial circulars that determine the country’s principal judicial policy aims. A country could not have multiple criminal law policies at the whim of prosecutors’ opinions and beliefs; there must be only one such policy. In determining how it should be applied to individual cases, each prosecutor must nevertheless be independent.”

Venice Commission’s Opinion on the draft revision of the Romanian Constitution

“Where the public prosecution is part of or subordinate to the government, states should take effective measures to guarantee that:

a. the nature and the scope of the powers of the government with respect to the public prosecution are established by law;

b. government exercises its powers in a transparent way and in accordance with international treaties, national legislation and general principles of law;

c. where government gives instructions of a general nature, such instructions must be in writing and published in an adequate way;

Recommendation Rec (2000) 19, paragraph 13

d. where the government has the power to give instructions to prosecute a specific case, such instructions must carry with them adequate guarantees that transparency and equity are respected in accordance with national law, the governement being under a duty, for example:

- to seek prior written advice from the competent public prosecutor or the body that is carrying out the public prosecution;

- duty to explain its written instructions, especially when they deviate from the public prosecutor’s advices and to transmit them through hierarchical channels;

- to see to it that, before the trial, the advice and the instructions become part of the file so that the other parties may take cognisance of it and make comments;

e. public prosecutors remain free to submit to the court any legal arguments of their choice, even where they are under a duty to reflect in writing the instructions received;

f. instructions not to prosecute in a specific case should, in principle, be prohibited. Should that not be the case, such instructions must remain exceptional and be subjected not only to the requirements indicated in paragraphs d. and e. above but also to an appropriate specific control with a view in particular to guaranteeing transparency.”

IAP Guidelines

Prosecutorial discretion should be exercised independently and free from political interference.

Where non-prosecutorial authorities may give instructions, these should be transparent, consistent with lawful authority and subject to established guidelines to safeguard independence.

Procedures to guarantee proper selection and prevent arbitrary dismissal are very important.

Method of selection should gain the confidence of the public and the respect of the judiciary and legal profession.

Selection process should involve non-political expertise.

Reasonable for government to require some control over the process given the importance of the prosecution of crime.

Important Factors

The Functions of Prosecutorial Organs and Their Cooperation With Other Legal

Institutions

The Legislature• Have role in laying down general principles and

criteria;• Also have role in appointment or dismissal of public

prosecutors.

Prosecutors should only be answerable in the most general terms.

Parliament should only have a say in dismissal after report of impartial group.

The JudiciaryEnsure that elements of role of prosecutor do

not cast doubt on the independence and impartiality of judges.

Prosecutors should neither cast doubt on judicial decisions nor hinder their execution.

Venice Commission has been critical of powers of prosecutorial supervision in communist countries.

Opinion on the Federal Law of the Prokuratura (Prosecutor’s Office) of the Russian Federation.

The Police• Has the prosecutor a role in investigation?

“Public prosecutors should scrutinize the lawfulness of police investigations when deciding whether a prosecution should commence or continue. In this respect, public prosecutors will also monitor the observance of human rights by the police.”

- Paragraph 21 of the Recommendation Rec(2000)19

In Ireland prosecution has no function to investigate but must scrutinise lawfulness of investigations in determining whether evidence will be admissible.

In addition prosecution can point out deficiency in police file, this could be seem as tantamount to a direction to the police how to investigate.

Prosecution of minor offences may be carried out by the police.

The Irish Model

Accountability of Prosecutors and Prosecution Agencies

Very difficult to determine how prosecutor’s office should be assessed without undermining its independence.

DPP is accountable for the expenditure of public money.

Freedom of information will only apply to records concerning general administration of the office.

Under legislation the DPP is not compellable before parliamentary committees.

"It has been accepted that an Attorney General changes with the Government and that is right. The Attorney General, apart from his function in Government as an administrator of justice, is also the Government's confidential legal adviser. It is patently clear therefore that the Attorney General should come and go with the Government.

Is it not desirable that the Public Prosecutor shall be in the same position? Like the Attorney General, the Public Prosecutor will be dealing with matters of policy with regard to prosecutions and Government administration of law. He should be in a position to take that responsibility. If democracy is to function, it is desirable that at the pinnacle of every point, that the representative elected by this Dáil to carry the ultimate responsibility shall be responsible the same as a Minister is ultimately responsible to the electorate. These are policy matters. It is a principle of democracy which we should adhere to. It is getting away from democratic principles to appoint permanent officials at the top.”

- Major Vivian deVelera, T.D.

"The political content in this work will be very small; in fact it will be non- existent except in as far as routine prosecutions are brought under an Act which itself has got a political complexion, and of course that Act should be applied by all Governments as long as it remains an Act,…This civil servant is, I think, rightly established as such. I think it would be quite wrong if it were somebody who changed with the Government going out of office because that would identify him clearly as a political creature. That would be wrong because it would encourage the public to do what this Bill is designed to discourage. It would encourage the public to believe that political pressure or political cronyism of some sort brought to bear on the Director of Public Prosecutions could be effective. Since naturally he himself would, because he would lose his job as soon as the Government went out, have an interest in holding on, it would instantly give him an interest in bending to that political pressure brought in favour of some member, at high or low level, of the party which is then in power”.

- Mr. John Kelly, T.D.

Other Means of Accountability

Duty to give reasons for prosecutorial decisions to individual victims or the public generally?

Such reasons are already given to the police;

System of review of decisions;

Management controls;

Consultation with the AG;

Annual Reports, Crime Statistics, Guidelines and Information Booklets;

Currently no duty of care in negligence to a victim of crime.