Committee Reports > List of Committees > Dáil > 1987 > Select Committee on Criminal Lawlessness and Vandalism > Report No. 15 - Proscecution of Offences

Fifteenth Report of the SELECT COMMITTEE ON CRIME, LAWLESSNESS AND VANDALISM

The Prosecution of Offences

Membership of the Committee

Dail Deputies

Clerk to the Committee: F.J. Brady

1. Introduction

1.1The Select Committee approached the examination of the system of prosecuting offences from two different points of view, namely,

(i)the Select Committee was very conscious of the growing volume of public disquiet being expressed about the operation and the efficiency of the system for prosecuting offences. In particular, there was widespread public concern about certain decisions taken by the Director of Public Prosecutions not to prosecute in certain instances.

(ii)as part of a fundamental review of the functions and operation of the Garda Siochana, the role of the Garda Siochana in prosecuting offences was considered.

In this aspect of our examination, the Select Committee was assisted by its Advisory Panel on the Garda Siochana. The Select Committee would like to thank the members of the Panel for their assistance. However, the views expressed in this Report are the views of the Select Committee and do not necessarily reflect the views/opinions of the Advisory Panel, or of any member thereof.

1.2There has been a major and growing concern about the procedures involved in prosecuting certain criminal cases. This concern has centered around the question of decisions taken by the Director of Public Prosecutions not to prosecute cases. Among the cases falling into this category are the MacArthur case and the killing of Mr. George Owens. The problems here were said to centre on the absence of any system for making the DPP accountable or answerable for his decisions. The Committee was of the opinion that there was a need to review the operation of the Prosecution of Offences Act, 1974 which established the Office of the Director of Public Prosecutions.

1.3The examination of the Role of the Garda Siochana necessitated consideration being given to the part which Gardai play in the prosecution of offences. Central to this issue is the extent, if any, to which the function of detecting crime and prosecuting criminals should be in the hands of the Garda Siochana, or whether, given that the Garda Siochana have responsibility for detecting crimes, the prosecution of offences should be given to a separate organisation.

1.4Other areas which arose for consideration during this examination include the administration/organisation of the courts and the need for a comprehensive review and consolidation of the criminal law. The organisation of the courts is the subject of a separate examination being undertaken by the Committee, but certain aspects of this question were considered to impinge so directly on this issue that recommendations about urgent changes in this area are included in this Report. The Committee considers that there is an urgent need to improve the system for enforcing court orders, particularly in relation to monetary penalties. If people who are taken through the system know, as they do at present, that there are major delays in enforcing collection, then that in itself is a contributing factor in increased lawlessness.

1.5The Chairman and Vice-Chairman of the Committee had a private meeting with Mr. Eamon Barnes, Director of Public Prosecutions and Mr. Niall Lombard, Legal Assistant, Office of the DPP. There was a very useful and informative exchange of views on the system of prosecuting offences, the reform of the criminal law, and methods whereby the public can be satisfied with the correctness of the decisions of the DPP. The Committee would like to thank the Director for his assistance and co-operation with the Committee in its examination of the prosecution system.

1.6The Select Committee decided to present this Report to the Dail and to make the recommendations contained therein.

2. Recommendations of the Committee

2.1The existing criminal justice system, which has remained substantially unaltered since the foundation of the State, has served the Nation well. However, major changes in Irish society in recent years have placed a very severe burden on the system which was never designed to cope with the volume of cases at present being handled by the Garda Siochana, the Courts, the Prisons and the other agencies of the system.

2.2The present operation of the criminal justice system is subject to ad hoc decisions to meet each new crisis that arises, rather than to any planned strategy to update the system in a structured and organised fashion.

2.3This Report, in conjunction with a number of other Reports on the Garda Siochana and the Courts, is designed to provide the solid foundation necessary for a major restructuring of the criminal justice system. The Select Committee considers that the time is now opportune for such an undertaking and recommends that urgent and early consideration be given to implementing the recommendations contained in this Report.

2.4The Select Committee recommends:-

(i)An Independent Prosecution System:

The Select Committee recommends that an independent prosecution system should be established to prosecute offences that cannot be dealt with by an on-the-spot fine system. The Garda Siochana should no longer have a role to play in prosecuting offences, apart from sending a case forward for prosecution.

The Director of Public Prosecutions should head this nationwide service and should be responsible for the prosecution of all criminal offences.

It follows, from the Select Committee’s Report on the Objectives of the Garda Siochana, that all activities engaged in by members of the Force must be examined in the light of the contribution those activities make towards the objectives of the Force. In this regard, the function of prosecuting offences does not contribute to the objectives as proposed in the Committee’s Report on the Objectives of the Garda Siochana and, accordingly, the Committee proposes that the Force no longer have a role in the actual prosecution of offences.

(ii)Streamlining of court procedures:

The Committee considers that the procedures for dealing with offences must be streamlined and simplified as a matter of urgency. The criminal justice system is being clogged up with offences of a technical, administrative or social nature rather than more truely criminal matters. The Select Committee recommends a major and radical expansion of the on-the-spot system of dealing with offences. Such a system could extend to any summary case or even to petty indictable cases. The offences capable of being so dealt with, including fixed penalties or consequences, should be set out in a schedule. The Committee considers that the time of the Gardai and the courts is being wasted in prosecuting minor cases where on-the-spot fines would be appropriate. It should thus be possible to reserve the courts for appeals from the on-the-spot system and for more serious criminal cases. The operation of the on-the-spot system should not be given to the Garda Siochana.

(iii)Reasons for prosecutorial decisions:

The Committee considers that there is a need for some mechanism to be established whereby the public can be assured that the decisions of the DPP are not beyond scrutiny.

The Committee considered four possible alternatives namely, (i) the Attorney General, (ii) the executive, (iii) the legislature and (iv) the judiciary.

The Committee recommends that the existing provisions of the Prosecution of Offences Act, 1974 (Section 2(6)) should be utilised by the Attorney General to allay public concern at decisions by the DPP not to prosecute. The provisions of Section 2(6) are sufficiently wide to enable the Attorney General to have consultations between the Attorney General and the DPP about his (the DPP’s) decisions. The DPP advised the Committee that such consultations would not diminish the statutory independence which the DPP is required to exercise. The Taoiseach or other suitable members of the Government could answer questions or make a statement in the Dail whenever the Attorney General was not a member of the House and there was a need to allay public concern

The Committee also considered that a small committee or sub-committee of the Oireachtas could be empowered to enquire of the DPP or the Attorney General about cases involving public concern. The Committee could then make a statement as to whether or not the decision not to prosecute was arrived at in accordance with proper legal criteria.

The Committee considered the possibility of providing for review by the Executive or the judiciary. The former would run counter to the fundamental purpose of establishing the Office in the first place, namely, the taking of the prosecution of offences out of the political arena. In relation to the courts, the Committee was advised that a proposal for an appeal to the courts, seeking a direction to the DPP to prosecute in a particular case, may be unconstitutional.

(iv)Provision should be made for extensive use of written evidence in the more routine cases appearing before the District Court. At present, countless Garda man-hours are wasted while members of the Garda Siochana hang around courthouses waiting to give brief and usually formal evidence which is not questioned. If a defendant wishes to question the accuracy of any evidence he should be free to do so in writing in the first instance. If there is still a conflict, the Garda involved should attend at the next hearing.

(v)The Select Committee recommends that the process of consolidating and updating the criminal law be undertaken. This is, appropriately, a matter primarily for the Oireachtas itself and one which should be given to a special Committee of the House. The Committee should be given a timescale and the resources necessary to undertake this task.

(vi)Legislation should be introduced allowing for remand on station bail to any court sitting within, say, thirty days. The effect of the recent Supreme Court decision (Lynch b Ballagh) was that the Gardai have no power to remand an accused to any sitting of the District Court other than the next sitting.

2.5The Select Committee considers that the above recommendations represent the foundation upon which a solid and effective prosecution system can function within the overall criminal justice system. In addition, the resulting release of Garda time would be more usefully utilised to provide the service which is considered to be of a more fundamental police nature, namely, the prevention and detection of crime, rather than the more legally technical service of prosecuting cases in the courts.

2.6Any citizen can initiate a prosecution and have the matter dealt with right up to the Return for Trial by the District Court. The Committee understands that where a case, initiated by a private citizen is returned for trial, the DPP will take over the prosecution of the case.

3. Accountability of the Director of Public Prosecutions

3.1The Prosecution of Offences Act, 1974 provides for the establishment of the Office of the Director of Public Prosecutions (DPP), for the functions of that Officeand for certain other matters.

3.2On the question of the independence of the DPP, the Act states at Section 2(5) that:

“The Director shall be independent in the performance of his functions”.

3.3The Act does provide, at Section 2(6), 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”.

3.4There is, in the Committee’s view, a clear need to provide a procedure whereby the decisions of the DPP may be reviewed. In reaching this conclusion, the Committee is not questioning the appropriateness of any decisions taken by the DPP. What is urgently required is a procedure whereby the public can be assured that not only is justice being done, but that the public is satisfied that this is in fact the position.

3.5The reasons why the DPP does not give reasons for his decisions not to prosecute were set out by the DPP in a statement which he issued in 1983. The statement is as follows:-

“The Director of Public Prosecutions refers to recent calls for a statement by him of the reasons which led to the entry of a nolle prosequi in a particular case. The Director considers that he is precluded from issuing such a statement in any case. The factors hereinafter referred to, and particularly the examples given, are of general application and should not be regarded as having any particular application to the case in which the nolle prosequi was entered.

It was the invariable practice, for a very long time before the establishment of the Office of Director of Public Prosecutions, to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions. The Director has continued that practice. There is a coercive reason for it. If reasons are given in one or more cases, they must be given in all. Otherwise, wrong conclusions will inevitably be drawn in relation to those cases where the reasons are refused, resulting either in unjust implications regarding the guilt of the suspect or former accused, or in suspicions of malpractice, or both. If on the other hand, reasons are given in all cases, and those reasons are more than bland generalities, the unjust consequences are even more obvious and likely. In a minority of cases, the reasons would result in no damage to a reputation or other injustice to any individual. In the majority, such a result would be difficult or impossible to avoid. The reason for non prosecution often has little or no relevance to the issue of guilt or innocence. It may be, and often is, the non-availability of a particular proof, perhaps purely technical, but nevertheless essential to establish the case. It may be the sudden death or departure abroad of an essential witness. To announce that such a factor was the sole reason for non-prosecution would amount to conviction without trial in the public estimation, and to depriving the person involved of the protection afforded by the careful analytical examination in open Court of the case against him which judicial criminal procedure affords. In other cases, the publication of the particular reasons for non-prosecution could cause unnecessary pain and damage to persons other than the suspect, as where certain types of aberration become apparent in an intended witness.

If some method can be devised whereby the Director could, without doing injustice, inform the public of the reasons for his decisions, he will very willingly put it into operation. From time to time his Office is subject to criticism arising from its inability to respond to enquiries from interested parties such as the victim of a crime or the family of such victim. Unfortunately, the Director is unaware of any method in which reasons can be given without, in many cases, doing injustice. He considers that any departure by him from the firmly established practice would be improper, in the absence of a specific requirement to that effect imposed on him by law. It would also be fraught with very serious legal consequences”.

3.6The giving or not giving of reasons is not related to any provisions of the 1974 Act. The rule about not giving reasons for decisions not to prosecute has existed since the foundation of the State and has been followed by successive Attorneys General and by the DPP. If it were thought necessary or desirable for reasons to be given, there would be no need to amend the Act. However, it would be necessary to provide that the publication of reasons would be absolutely privileged.

3.7The rule and practice are not peculiar to Ireland; the same practice is followed in England and Wales, in Scotland and in Australia. Similar problems and pressures have arisen in each of those countries over the years, but there is general agreement that the giving of reasons is impossible and for exactly the same reasons as motivate the policy in Ireland.

3.8Nevertheless, the Committee considers that very useful progress could be made towards allaying public concern without the need for legislative amendment. The provisions of Section 2(6) of the 1974 Act (paragraph 3.3 above) are sufficiently wide to include consultations between the DPP and the Attorney General regarding the DPP’s decisions. The Committee understands that the DPP does not see such a proposal as any diminution of the statutory independence which he is required to exercise.

3.9The independence of the DPP should be distinguished from his accountability. Independence means that he cannot be told what to do in any particular case. Consultation, as envisaged by Section 2(6) does not involve any interference with that independence. Indeed, consultation as envisaged by the Committee is unlikely to take place until after the DPP has made a decision. The DPP, if he is unable or unwilling to do his job, is accountable by law; provisions are contained in the 1974 Act whereby the DPP is held accountable ultimately to the Government.

3.10The Committee considers that some mechanism must be established whereby the public can be satisfied that the decisions of the DPP are not beyond scrutiny. The Committee considered a number of options:-

(i) Attorney General

The use by the Attorney General of the provisions of Section 2(6) of the 1974 Act would have the effect of a review of the decisions to prosecute or not to prosecute and afford an opportunity to the Attorney General to assuage any private or public disquiet that might arise from time to time in relation to individual decisions which the DPP could not himself explain.

The procedure could be along the following lines. Following a particular decision, an application could be made to the Attorney General to enquire into the circumstances of the decision.

The Attorney General would then have a formal or informal preliminary consultation with the DPP regarding the case and then, if he considers it appropriate to do so, he may ask for the Office file. His function would be to examine whether or not the decision was arrived at in accordance with proper legal criteria. If it was, the person enquiring can be so informed. If it was not, it becomes a matter for consultation under Section 2(6). Ultimately, however, it is a matter for the DPP to take the final decision. In the event of a disagreement between the DPP and the Attorney General, it would be open to the Attorney General to announce that after full consultation and discussion, the decision was taken on the basis of legal criteria with which he disagreed.

A somewhat similar arrangement to that outlined above exists in Scotland and in England and Wales in the context of the Parliamentary Question. The Attorney General and the Lord Advocate are invariable members of the British Parliament. If any question is raised regarding a prosecutorial decision, it is answered by one or the other depending on the jurisdiction. The reasons are never given, but the Attorney or Advocate will assure the House that, having scrutinised the file, he is satisfied that the decision was taken in accordance with proper legal criteria, if that be the case. A somewhat similar arrangement exists in Australia.

The Committee considers that a similar procedure could be operated here. The Taoiseach or other suitable member of Government could answer questions whenever the Attorney General was not a member of the House.

(ii) Legislative/Executive

Providing that the decisions of the DPP would be subject to scrutiny by the Executive or the Legislative would seem to be contrary to the fundamental purpose of establishing the Office in the first place, namely, the taking of the prosecution of crime out of the political arena.

The Select committee did, however, consider the possibility that a Committee of the Oireachtas should be empowered to enquire of the DPP or the Attorney General in the event of general public disquiet about decisions of the DPP not to prosecute. The Select Committee was of the opinion that there may be merit in such a proposal, but that any such development would require very careful consideration before it was implemented.

(iii) Courts

The Select Committee was favourably disposed towards a system whereby a person aggrieved by a decision by the DPP not to prosecute could apply to the courts (probably the District Court) for a review of that decision and, if appropriate, a direction requiring the DPP not to prosecute.

The Committee was advised that such a proposal could be unconstitutional. The Committee would require legal advice on this issue. In Ireland, the prosecutorial decision making system is discretionary; this differs from the system of strict legality which operates in some Continental countries, including Holland. Where there is such discretion, judicial review may be inappropriate.

3.11The Committee recommends that the existing statutory provisions be utilised and that the Attorney General should consult with the DPP, under Section 2(6) of the 1974 Act, to satisfy himself that decisions have been taken based on proper legal criteria. The Attorney General could then make a statement to that effect, or a member of the Government could advise the Dail accordingly.

4. Review of the present crime levels in the prosecution system

4.1The brunt of the impact from the rising level of crime has fallen on the District Courts. At present, about 95 per cent of all prosecutions for indictable offences are held in the District Court. Both by tradition and as a matter of law, Gardai have acted as the prosecutor in the majority of such cases. The following table shows the types of offence and court jurisdiction for some recent years:

Type of Offences/Court Jurisdiction

4.2The indictable/non-indictable distinction no longer precisely corresponds to the seriousness of an offence. Most offences can be tried either on indictment or summarily. The restricted sentencing powers of the District court (ordinarily a maximum of one year imprisonment, extending to two years in certain circumstances) make it the jurisdiction most defendants opt for where the choice is available. In turn, the decision as to whether that decision should be accepted by the State, where the DPP’s approval is required for summary disposition, has become increasingly important.

4.3The rise in the level of crime has greatly expanded the demands on the Garda Siochana in the areas of crime control and law enforcement. The increase in court proceedings has increased the responsibilities borne by the Gardai to, for example, issue summons and warrants. Given the other demands on Garda resources and the complexity of prosecution in the criminal courts, it is reasonable to reassess both the role of the Garda as prosecutor and the structure and resources of the State’s formal prosecutorial system: the Office of the Director of Public Prosecutions, the Chief State Solicitor’s Office, and local State Solicitors. Such a review should consider the distinction between the investigation and the prosecution of criminal offences.

5. Position in The Netherlands and England

5.1A major reassessment of the system of prosecuting offences has taken place in The Netherlands and in England. The result has been major reforms of the prosecution function with the objective of developing a prosecution service that can “screen” cases toward a selective, consistent and successful prosecution policy.

5.2Selectivity is necessary to ensure that minor cases are removed from the criminal justice system at an early stage, directing resources and court time toward more serious offences. This has often been accompanied by a strengthened procedure for cautioning offenders and diversionary programmes comparable to the Juvenile Liaison Officer Scheme. Resources can then be targeted so as to maximise the likelihood that convictions will be achieved in cases involving serious offences and repeat offenders. The concern over consistency arises from clear evidence that the prosecution of cases is handled unevenly across districts within most countries. Therefore, reforms have tended to produce prosecution systems that are structured so as to combine central co-ordination with considerable local accountability. Careful attention is given to ensuring a close working relationship between police and prosecutors, and indeed, to providing police with a substantial input into prosecution decisions.

The Netherlands

5.3In The Netherlands, criminal proceedings may be instituted only by the Department of Public Prosecutions, which has an office attached to every court and 250 Public Prosecutors. A delegation from the Select Committee visited The Netherlands in September 1986 and had discussions with senior officials in the prosecution service.

5.4The Department of Public Prosecutions is composed of

(i)the Procurator General and The Advocates General at the Supreme Court,

(ii)the five Procurators General and the Advocates General and the Solicitors General at the Courts of Appeal,

(iii)the 19 Chief Public Prosecutors,

(iv)the Public Prosecutors, and

(v)the Traffic Magistrates attached to the District and Cantonal Courts.

5.5Public Prosecutors and the Traffic Magistrates work under the supervision of the Chief Public Prosecutor, who in turn is subject to the Procurator General at the Court of Appeal in the district in question. They all come under the Minister for Justice. The Procurator General at the Supreme Court is not, however, part of the structure; he is independent and is appointed for life, although he retires at the age of 70.

5.6The Department of Public Prosecutions has a considerable degree of independence. Dutch law recognises the principle of opportuneness, as opposed to the principle of legality recognised in some other countries. This means that, should an offence be made known to him, the Public Prosecutor is not bound to prosecute, except on the express order of a Court of Appeal (following a complaint of failure to prosecute), the Minister, or the Procurator General at a Court of Appeal. In the case of misdemeanours, the public prosecutor can always offer to settle out of court. He cannot do so in the case of felonies, but he does have the right to drop charges. This means that he may decide - conditionally or unconditionally - not to take a prosecution to court if he thinks the case unsuitable for this.

5.7The Minister for Justice is politically responsible for the actions of the Office of Public Prosecutions. This manifests itself in Parliamentary debates and in the answering of various questions in Parliament. Sometimes the Minister for Justice even has to account for the actions of the Office of Public Prosecutions with regard to individual criminal cases. The Minister will tend to allow a certain freedom to the Office of Public Prosecutions in his political accountability. This is specially so in the case of individual cases. On a more general policy level, the tendency exists on the side of the Ministry of Justice to keep the Office of Public Prosecutions in check to a certain extent, for example, by issuing uniforming guidelines and giving directions, which decrease the scope of the Public Prosecutor.

5.8There is a mechanism for controlling the independence and for making a public prosecutor accountable for his decisions. This control operates where a public prosecutor decides not to prosecute a case which has been brought to his notice. In such a situation, any interested party may apply to the Court of Appeal for an order directing the public prosecutor to prosecute. In such a way, any individual who feels that he is aggrieved has the option of having his grievance heard by a court and having an independent ruling handed down by the court. This system is used in The Netherlands and the delegation was advised that it operates successfully. There are an average of 400 cases taken to the Court of Appeal each year. About 10% of these applications are granted and, accordingly, prosecuted by the Public Prosecutor.

5.9A recent innovation in the prosecution system in the last three years is the option available to the Public Prosecutor to offer a fine in lieu of court proceedings for offences carrying a maximum penalty of up to six years but only for first offenders. Over three-quarters pay the fine on this basis.

England and Wales

5.10The advantages and disadvantages of changing the prosecution function were extensively debated in England and Wales recently. The Royal Commission on Criminal Procedure examined existing arrangements for prosecuting offenders and recommended an alternative “statutorily based prosecution service” that would be locally based, accountable to a policy and prosecutions authority. In addition, there would be a measure of national control and machinery for accountability in the system proposed by the Commission: “These are necessary for three purposes: first, in order to develop consistent prosecution policies and to minimise arbitrary variations in decisions between different areas; secondly, to achieve uniform and acceptable standards of efficiency and service; and, thirdly, to provide a measure of accountability to Parliament in relation to general policies”.

5.11The system proposed by the Commission did not involve police serving as advocates in magistrates’ courts, ending a practice similar to the one currently in force for this country. The Commission reported in 1981. Its main recommendations on prosecution are contained in Appendix C. That Report led to a White Paper, “An Independent Prosecution Service for England and Wales”, and ultimately to the Prosecution of Offenders Act, 1985, which has recently been implemented. This Act provides for an independent prosecution system.

6. The Garda Siochana and the Prosecution System

6.1The Garda Siochana suffers from the absence of any clear statement of its objectives, or of its priorities. [This matter was considered in detail in the Committee’s Report on the Objectives of the Garda Siochana]. The Force has developed over the years with many additional responsibilities assigned to it, but without any clear indication as to how these activities fall to be dealt with by the Gardai. There has been no critical analysis of the activities of the Force, either from within the Force or from outside it.

6.2One major area of concern about the Garda Siochana is the wasted man-hours hanging around courts. There are a number of aspects to this waste of resources, but nobody yet seems to have been prepared to analyse the problems and to take the necessary remedial action which is essential to prevent the operation of the criminal justice system from grinding to a halt. Among the areas that fall to be considered as contributing to the problem are the system of prosecuting offences, the procedures within the courts, the need to remove many of the minor/technical offences out of the courts system and the need for an updating and codification of the criminal law. These topics are dealt with in other sections of this Report. However, it is useful and necessary to consider some of the general difficulties which exist in relation to the Garda Siochana before proceeding with some of those topics.

6.3Whilst the structural aspects are not within the scope of the present Report (a separate report on this topic is under consideration), it is necessary to consider Garda training, the role of technology, civilianisation and promotion structures. A couple of examples will suffice to illustrate difficulties in the role and structure of the Force:-

(i)It is noteworthy how “top heavy” is the deployment of career Gardai of all ranks and the absence of civilian employees; for example, in a Section, such as Computers, the staffing consists of a Chief Superintendent, 2 Superintendents, 6 Inspectors, 6 Sergeants and 9 Gardai. Even the Printing Section appears to be exclusively manned by Gardai. The question arises as to whether or not much in this sphere might properly be civilianised, without serious security repercussions. Out of a total strength of 45 Chief Superintendents, 17 are working in Garda Headquarters; the position in respect of Superintendents is 159 and 45 respectively.

(ii)In relation to the position on the ground, the issue arises of having needless numbers of Gardai waiting in Court to give evidence. It is not a question of the transparent fatuousness of having members hanging around the District Court to prosecute parking tickets; more seriously, despite the comments of the present Chief Justice some years ago on the futility of having numerous members waiting to testify in substantial trials in the Special and Central Criminal Courts as to preservation crime scenes exhibits and the subsequent legislative provision made to deal with this, only very marginal improvement has been evident. Groups of up to 20/30 Gardai continue to be absent from their stations for days so that they can perform a half minute “gig” of declaring that they preserved the relevant scene of item during a tour of duty in which no unauthorised interference took place. The practice can only be described as “Gilbertian”. It is demonstrably time-wasting and demeaning for the majority of committed Gardai and a paid holiday for a few lazy ones.

7. Streamlining of Court Procedures

7.1A considerable amount of Garda time is unnecessarily wasted by reason of cumbersome court procedures thereby directing resources from more valuable and essential police work. At District Court level no listing system operates and cases are called in a haphazard and erratic fashion. Were a listing system devised, which would enable adjournments and short cases to be disposed of first, a considerable number of Gardai would be released from Court resulting in a saving of overtime and a more efficient utilization of Garda time.

7.2At the level of District Court Appeals in the Circuit Court procedural difficulties also lead to further unnecessary use of Garda time. While not legally required, it has become a matter of practice for a Garda to inform an appellant that his appeal is listed for hearing on a particular day. Circuit Court Judges will rarely strike out an appeal in the absence of evidence that the appellant has been personally notified. This is legally unnecessary and, furthermore, if an appellant wishes to have his appeal re-entered following a strike out there is little practical difficulty in having this done. A more streamlined system could be invoked whereby an appellant could be informed on the date of his conviction in the District Court of the date of listing of his appeal in the Circuit Court. Unnecessary waste of man-hours in notifying appellants and excess court appearances could be avoided.

7.3In addition to these suggested procedural improvements, it is also felt that Court time, and by extension, Garda time, is unnecessarily taken up by cases of a trivial nature. Many of these could be dealt with by a system of “on-the-spot” fines similar to those currently operating in relation to parking and litter offences. A prosecution would result only in the event of these fixed fines not being paid. There is no reason why, for instance, a drunk driving (breathalyser) case cannot be dealt with out of Court. If the essential facts of any type of summary case, or even some petty indictable cases, can be set out in a notice and agreed, there is no reason why a prescribed penalty including disqualification, cannot be accepted by an accused without the necessity of going to court. The offences capable of being dealt with and the manner of dealing with them, including fixed penalties or consequences, would be set out in a statutory schedule.

7.4An alternative is to have an agreed statement of facts put before a court which then imposes a standard penalty. This is however an undesirable compromise. So long as the penalty or consequence is fixed, there is no constitutional problem regarding out of court disposal. The incident would not go on any criminal record, but would of course be known to the prosecution should the person invoke transgress again for purposes of deciding on second time diversion from the courts.

7.5Cases which are potential candidates for diversion can be divided into two categories (i) those of a purely “mechanical” or “fixed” nature e.g. parking and speeding offences, and (ii) those which are more subjective in character e.g. dangerous driving. Trivial caess of the latter category could be dealt with by an expanded DPP’s office who could, taking all legal and factual criteria into account, decide whether a case is suitable for diversion. The resulting savings in Garda man-hours could lead to a greater emphasis by the Gardai on prevention and detection of crime and leave the courts free to deal with the more serious cases.

7.6A particular difficulty has arisen in recent times in relation to the matter of station bail. In a recent Supreme Court decision (State (Lynch) v Ballagh) it was decided that the Gardai have no power to remand an accused to any sitting of the District Court other than the next sitting. Furthermore, it has been the practice of prosecuting Gardai to appear at every remand date up to and including trial. Great savings of man-hours could be effected if a legislative change was made to allow remand on station bail to any court sitting within, say, thirty days. An expansion or revamping of the prosecution system would mean that Gardai would only have to attend court on the initial date and on any trial date, any intervening remands being dealt with by the prosecution service. Logic dictates that a prosecuting Garda need only appear in court on the date of the first appearance of an accused and at the trial itself. Any intervening remand can be dealt with by the prosecution service who (particularly in Dublin) will usually have a representative in court anyway. This will release the Gardai on to the streets to perform the function for which they were primarily intended.

7.7These changes would allow the Gardai more time to discharge their true policing functions rather than wasting unnecessary time attending court. It is felt that reform in this area should receive urgent priority. The converse of this is that the network of the prosecution service, both in and outside Dublin, would have to be expanded and re-organised. The Committee understands that the cost of this would be relatively small and would result in, and be offset by, major savings. At present State Solicitors come under the ambit of the Attorney General, are not officers of the DPP and therefore cannot give directions in criminal cases, however minor. It would be desirable that in the event of a re-organisation that State Solicitors involved in criminal work be officers of the DPP. This is the only way in which they can exercise delegated authority. Alternatively, State Solicitors could be totally divorced from dealing with criminal cases. In such an event, some officers of the Office of the Director of Public Prosecutions could be assigned to provincial centres to deal with local prosecution problems.

7.8A fundamental duty of the State is to provide an efficient and expeditious system of criminal prosecution. Efficient use of Garda resources backed up by an efficient system of prosecution would in our view lead to crime discouragement and hopefully a decrease in the levels of crime.

8. An Independent Prosecution Service

8.1The vast majority of criminal cases are dealt with in the District Court. While many of these cases are relatively trivial, some are fairly serious in nature and include as well as Road Traffic Offences, offences such as larceny, assault and burglary.

8.2While cases in other criminal Courts (Circuit, Central Criminal and Special Criminal) are always prosecuted by qualified lawyers, the Gardai have, by virtue of the District Court Rules, a right of audience in the District Court enabling members to prosecute cases in that Court. The Gardai can and do ask the assistance of a State Solicitor (outside Dublin) or of the chief State Solicitor’s Office (in Dublin) to prosecute in the District Court. However, this service is availed of in a very uneven and patchy way. Outside of Dublin cases are rarely (and usually only in unusual circumstances) prosecuted by a State Solicitor; in Dublin, while a substantial number of cases are frequently prosecuted by Solicitors from the Chief State Solicitor’s Office, in a majority of cases the prosecutions are conducted by Gardai.

8.3While the Gardai have always enjoyed the right of prosecution at District Court level, the increasing availability of free legal aid has meant that, except in the case of the most trivial nature, a defendant is invariably legally represented. This often leaves a prosecuting Garda at a disadvantage when faced with a trained criminal lawyer. This situation could be rectified in part by an expansion of the State prosecutorial system to provide a more thorough and all embracing network which can be availed of by the Gardai. The prosecutorial system could be expanded both in terms of manpower and resources to provide legal representation to Gardai in Court in all but the most trivial of cases. It would also end the anomaly in legal representation between Dublin and the remainder of the country. There can be little doubt that cases have been lost in the past by reason of the disadvantage prosecuting Gardai have suffered in cases being defended by qualified lawyers.

8.4To create a comprehensive prosecutorial system would necessitate the appointment of additional lawyers to service such a system, but the Committee considers that the cost would be worthwhile and would be more than offset by the savings made. Ireland is now virtually the only country in the Western world without such a comprehensive prosecution service.

8.5The Committee is of the opinion that the human and material resources necessary for the establishment of a proper prosecution service could be provided at relatively small cost and that such cost would be recouped by savings resulting from a more efficient and effective service. The independent prosecutorial service would provide for:-

(a)an increase in efficiency in the prosecution of cases which should be prosecuted,

(b)the proper screening of cases and the elimination of ones which should not be brought at all, either because of their nature or because of the inadequacy of the evidence to support them,

(c)the diversion of many types of prosecutions currently cluttering up the Courts system into other procedures and remedies,

(d)the easing of pressure on court lists and the elimination of witnesses expenses and of unnecessary repeated remands which incur hearing expense on both the prosecution and defence sides,

(e)speedier and more effective prosecutions, and

(f)the release of Gardai in large numbers from purely prosecutorial functions and from repeated attendances at remand hearings.

8.6It is essential that any independent prosecutorial system be properly staffed and organised in a unified structure. The present division and complexities in the system illustrate the haphazard way in which the system has developed. For example, State Solicitors are involved in prosecuting cases even though the Office of the Director of Public Prosecutions is a statutorily established prosecution body; yet the DPP has no control over the State Solicitors. A fundamental question in examining the prosecution system and making recommendations for the future is to consider whether, if, assuming the total absence of any existing prosecution system, anyone would recommend the establishing of a system on the lines of the present one. In the view of the Select Committee, the answer to any such hypothetical question is a resounding “No!”. Any attempt to establish such a system must be on the basis of a unified professional organisation being charged with the specific task of prosecuting offences. The Select Committee recommends accordingly.

9. Reform of the Criminal Law

9.1The Committee has been advised that shortcomings in various legislative provisions hamper the Gardai in the discharge of their duties. One of the most serious and basic anomalies concerns the area of powers of arrest. At Common Law, a power of arrest without warrant exists only for felonies and a few other isolated offences. Statute law has created powers under, for example, the Road Traffic Act and the Offences Against the State Act. The anomalous position arises, for example, in that a Garda can arrest for a minor larceny, but not for assault occasioning actual bodily harm, indecent assault or, indeed, attempted rape. A rescheduling of offences is desirable into arrestable and non-arrestable offences, which should be categorised on the basis of gravity rather than on whether they are misdemeanours or felonies.

9.2In the area of the substantive law there are serious defects in several areas. For example, it is virtually impossible to prove the offence of receiving stolen goods in the absence of an inculupatory statement from a suspect. Statutes, such as the Malicious Damage Act, are drafted in a tortuous and disjointed fashion and could easily be replaced by a new act creating one “cover all” offence of Malicious Damage.

9.3Much of our legislation on criminal matters dates back to the middle of the last century. The Committee recommends that the task of updating and consolidating the criminal law be undertaken in a structured manner. The Committee is of the view that this is a matter primarily for the Oireachtas itself and that it should be given to a Committee of the Houses together with the necessary resources to undertake the major, long-term task of updating the criminal law. This would overcome the present position where Gardai are hampered by an unnecessary and complicated network of criminal legislation which could be easily simplified for their benefit and also for the benefit of the general public.

10. Enforcement of court orders

10.1The failure to enforce penalties consequent on conviction leads to a serious loss of morale in the Garda force. The position in relation to the collection of fines can only be described as deplorable. As a whole range of minor offences are dealt with by way of monetary penalty, it is essential that these penalties be enforced. However it has become increasingly prevalent (especially in Dublin and Cork) for a considerable period of time to elapse between conviction and enforcement, if indeed enforcement takes place at all.

10.2The situation could be relieved by the expansion of the “on the spot” system suggested in this Report. Not only does this situation lead to a considerable degree of frustration within the force, it also acts as an encouragement to law breakers in the relevant areas who will become increasingly aware that penalties are not being collected. The entire machinery of the criminal justice system must be seen to function efficiently if it is not to be brought into disrepute. Even in the event of imprisonment the system can operate in a haphazard and erratic fashion. The “revolving door” system of imprisonment has at times meant that offenders have served only a minor portion of their sentences. While this has been due to lack of accommodation the demoralising effect on the Force is only too easy to imagine. Another anomaly in this area concerns the use of the prisons for non-criminal “offenders”. People guilty of non-compliance with court orders can be imprisoned often displacing convicted offenders. It is also anomalous that while a convicted offender can have a portion of his sentence remitted for good behaviour, someone imprisoned for non-payment of a debt cannot.

10.3These anomalies tend to reduce the effectiveness of imprisonment as a penalty in those cases where the Courts decide that imprisonment is the only solution in a given case.

11. Advisory Panel on the Role of the Garda Siochana

11.1During its examination of the Recruitment and Training arrangements for the Garda Siochana, the Committee became convinced of the need for a fundamental reappraisal of the functions of the Garda Siochana.

11.2In order to obtain assistance in this undertaking, the Committee decided to establish an Advisory Panel comprising experts and specialists in various fields. The membership of the Advisory Panel is:-

Donal Dineen, Head of the Department of Business Studies, National Institute for Higher Education, Limerick;

Gerry Griffin, Solicitor, Incorporated Law Society nominee;

Mr. James Hickey, Principal, College of Commerce, Rathmines;

Niall Lombard, Legal Assistant, Office of the Director of Public Prosecutions;

Jack Marrinan, General Secretary, Garda Representative Association;

Michael Moriarty S.C., General Council of the Bar of Ireland nominee;

Michael Murray, General Secretary, Association of Garda Sergeants and Inspectors;

Dr. David Rottman, Senior Research Officer, Economic and Social Research Institute; and

Professor Maxwell Taylor, Department of Applied Psychology, University College, Cork.

11.3The Advisory Panel formed two sub-Committees, one of which undertook the task of examining the prosecution system while the other examined the Functions of the Garda Siochana in a broader sense. There were a number of meetings of the Advisory Panel and its sub-Committees.

11.4The Select Committee would like to take this opportunity to thank the members of the Panel and their sponsoring organisations for their assistance in this project and for their valuable contribution to the deliberations of the Select Committee.

11.5The Select Committee will be producing other Reports in the near future on other aspects of the Role of the Garda Siochana.

12. Acknowledgement

12.1The Committee appreciates the assistance given to it by the members of its Advisory Panel on the Role of the Garda Siochana.

12.2The Committee also appreciates the work of its Clerk, Mr. F.J. Brady and of its Secretary, Miss G. Murphy.

Dr. Michael Woods T.D.

Chairman.

14 January, 1987.