Strasbourg, 5 February 2009
WORKING PARTY OF THE CONSULTATIVE COUNCIL
OF EUROPEAN JUDGES
Strasbourg (Council of l’Europe), 16-18 February 2009
ON THE RELATIONSHIP BETWEEN JUDGES AND PROSECUTORS
Document prepared by John MacMENAMIN (Ireland),
ON THE RELATIONSHIP BETWEEN JUDGES AND PROSECUTORS
Document prepared by John MacMENAMIN (Ireland),
Professor Tak’s interesting and informative report is premised on seeking to identify commonalities in European Prosecution services. However, it must be noted that there are significant differences between these systems. Many of these are so substantial that it is appropriate to deal with them in a separate section to the paper. Provided below, is a brief analysis of these differences, with a particular emphasis on the Irish system. As a background to this analysis, it must be borne in mind that in Ireland, judges and prosecutors have separate and distinct roles, which are in no way interchangeable.
1. External Dependence and Independence
In contrast to the French system for example, the Irish prosecution service is not based on hierarchal subordination and is not headed by the Minister for Justice. The Director of Public Prosecutions (D.P.P.) in Ireland is independent and autonomous and enjoys discretion over the prosecutorial decision in each case. Section 2(5) of the Prosecution of Offences Act 1974 provides that the D.P.P. “shall be independent in the performance of his functions”. Section 6 outlaws attempts by politicians acting on behalf of constituents to persuade the D.P.P. to drop a prosecution or individual charges and places the D.P.P. under a duty not to entertain such unlawful communications. Furthermore, the D.P.P.’s independence is not compromised by the fact that he is appointed by the government as s. 2(9) provides that he can be removed by the government and his office comes under the general remit of the Department of Justice, Equality and Law Reform. In describing the Mission of the Office, the D.P.P.’s Strategy Statement 2001-2003 states that independence is a core value of the Office. The need for the prosecution service both to be and to be seen to be independent was a key reason for its establishment. Subject to the Courts, the Director is independent of all other bodies and institutions, including both the Government and the police force, and decisions are taken free from political or other influence. The Attorney General is described in Article 30 of the Constitution as “the adviser of the Government in matters of law and legal opinion”. He or she is appointed by the Taoiseach and leaves the office if the Government changes. Usually the person appointed is a lawyer who may be associated with the party in power. While the Attorney General is not a member of the Government, he or she traditionally attends at Cabinet meetings. The prosecution service is largely independent of the judiciary and the Irish courts have been careful to safeguard the D.P.P.’s discretion. However, it has been held by the Supreme Court that a decision of the D.P.P. not to prosecute in a particular case, may be subject to judicial review on limited grounds.1 Furthermore, the police are subject to certain procedural but not substantive supervision of the courts when a crime is being investigated and prosecuted, e.g. in obtaining search warrants, and in relation to the admissibility of evidence.
2. Internal Dependence and Independence
In contrast to states like France, Germany, Belgium, and the Netherlands, the internal structure of the prosecution service in Ireland is of a decentralised nature. The Irish prosecution system developed from common law tradition and is divided between a number of State agencies. The police have considerable autonomy and in the vast majority of cases, they will conduct investigations into crime, both minor and serious. In minor cases, the member of the police who investigated a minor offence also becomes the prosecutor in court. In serious cases, such as murder, the offences are investigated by the police and their files on the case are then sent to the D.P.P. who determines whether a criminal prosecution is initiated. A member of the police can prosecute in the name of the D.P.P. without having to secure the prior consent of the D.P.P. or even bringing the case to his attention. However, the D.P.P. exercises control over the prosecution.
The investigation and prosecution of offences are separate and distinct functions within the Irish criminal justice system. The D.P.P., as a general rule, has no investigative function and no power to direct the police in their investigations. The D.P.P. may advise investigators as to the sufficiency of evidence to support charges and the appropriateness of charges. In cases concerning certain offences such as homicide, sexual offences, offences under the Official Secrets Act 1963 or the Offences Against the State Act 1939, and corruption, a charge should not be preferred without the prior directions of the D.P.P..
3. Consent of the Attorney General
Section 3(5) of the Act of 1974 preserves the requirement for the consent of the Attorney General before prosecutions can be taken for offences under the Geneva Conventions Act 1962, the Official Secrets Act 1963 and the Genocide Act 1973. It would be seen then that the circumstances in which such consent arises are very limited.
The D.P.P. is accountable only in a limited number of ways for the performance of his functions. Section 2(6) of the Act of 1974 provides 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.” As pointed out above, the consent of the Attorney General to a criminal prosecution must be obtained in relation to certain offences. The D.P.P. is also accountable to the Government for the expenditure of public money. He is not accountable to the Oireachtas or the public in respect of the reasons for particular prosecutorial decisions and until recently it was the policy of his Office never to give such reasons in public.
5. Election or Appointment
Although the D.P.P. is appointed by the Government, the appointment may be made only from among those persons who are considered suitable for appointment by a committee consisting of the Chief Justice, the heads of the barristers and solicitors professions in Ireland, the permanent secretary to the Government and the permanent head of the Attorney General’s Office. The D.P.P. can be removed from office by the Government only following consideration by them of a report of an inquiry into the physical or mental health or conduct of the D.P.P. carried out by a committee consisting of the Chief Justice, a High Court judge nominated by the Chief Justice and the Attorney General. These safeguards ensure that the D.P.P.’s independence is not compromised.
6. The Adjudicatory Function of the Prosecution Service
In his report, Professor Tak alludes to the blurring of divisions in function exercised by prosecutors and courts. For example, in France, Italy, Spain and Portugal, reforms of the codes of criminal procedure have led to criminal cases being materially administered by a prosecutor and not at full length by a judge in a public trial. The Irish prosecution service plays a partly adjudicatory role in respect of road traffic offences which attract a fixed penalty. The matter can be dispensed with and adminstered by the police if the accused pays the fixed charge, i.e. pleads no contest and accepts that penalty points will be endorsed on their licence record. However, the accused can also opt to go to court and attempt to defend their actions. If they are acquitted, there is no question of penalty points being endorsed. However, if found guilty, they run the risk of incurring a higher number of penalty points.
7. Public Prosecutor: Magistrate or Civil Servant
Unlike the position of the public prosecutor in the Netherlands, s. 2(4) of the Prosecution of Offences Act 1974 provides that the D.P.P. is to be a “civil servant in the service of the State”. This is distinct from a civil servant of the government and is a further guarantee of the D.P.P.’s independence. The D.P.P. does not play a judicial role. Furthermore, it is entrenched in the Irish Constitution that “all judges shall be independent in the exercise of their judicial functions and subject only to the Constitution and the law”.
8. The Professional Status of Public Prosecutors and Judges
In France, judges and public prosecutors all belong to the judiciary. This is not the case in Ireland. Unlike in other European states, for example, the Netherlands, France, and Germany, the professional status of a public prosecutor does not equate with that of a judge. Under the Irish prosecutorial system, cases concerning indictable offences are prepared by a solicitor working for the D.P.P. and a barrister acting on behalf of the D.P.P. will present the prosecution case in court. Cases concerning summary offences, heard in the District Court, are presented by a member of the police or a prosecution solicitor. A solicitor or barrister may, after a certain period of practice, be appointed as a judge. The roles of prosecutors and judges are not interchangeable. By way of illustration, the physical position and legal status of prosecution and defence counsel in court is precisely the same although they are on opposing sides.
Furthermore, in Ireland, there are separate procedures relating to the removal of the D.P.P. and a judge. The D.P.P. can be removed from office by the Government only following consideration by them of a report of an inquiry into the physical or mental health or conduct of the Director carried out by a committee consisting of the Chief Justice, a High Court judge nominated by the Chief Justice and the Attorney General. According to Article 35.4.1° of the Irish Constitution, “A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal”.
The purpose of this report is by no means to suggest that the Irish and other common law systems are better or worse than other prosecution services. It merely aims to illustrate the very profound differences between these systems which should be dealt with in a separate fashion in any advisory opinion.
1 Eviston v. D.P.P.  3 I.R. 260.