The Relation between the Public Prosecutor and the Police

Four Courts

 Sent by Rita Cahill

In Ireland no single body has a statutory monopoly over the investigation or control of a criminal investigation. At common law any person is free to pursue a criminal investigation and even to initiate the criminal process by laying formal criminal charges against a suspect. In doing so they are subject only to the law. A large number of regulatory bodies are given specific powers to pursue investigations and to pursue criminal complaints through the courts. The competence of any such body in these matters is confined to minor criminal offences arising within the scope of its administrative responsibility (e.g. protection of the environment, consumer protection, health and safety at work etc). As is the case with the ordinary citizen their performance in these matters is not subject to control or oversight by the general public prosecutor.

Most criminal investigations are carried out by the national police force, the Garda Siochana. The legislation establishing the force does not give it a statutory monopoly over any class of criminal investigation, nor does it specifically define the function of the Garda Siochana to include the investigation and detection of crime. However, each individual member is entrusted directly by law with the full body of common law and statutory police powers. This, together with the fact that the force is established, organised, managed and resourced to combat crime, ensures that in practice it is by far the primary body with responsibility for the investigation and detection of crime. In practice victims of a crime will report it directly to the Garda who will commence an investigation on their own initiative. Equally, the Garda perform a proactive role in the investigation of serious ‘victimless’ crimes. The public prosecutor never commences a criminal investigation. In the exceptional cases where a criminal complaint comes directly to the prosecutor he will refer it to the Garda Siochana and will not retain a supervisory role in how it is investigated.

The Garda Siochana enjoys an exceptional degree of independence in its investigation of crime. Because the full body of police powers attach to a member by virtue of his office, he is independent in the lawful exercise of the powers. Neither the public prosecutor nor the chief of police (Garda commissioner) can direct him to exercise, or not to exercise, the powers in any individual case. However, each member is ultimately accountable to the Garda commissioner for the manner in which he conducts a criminal investigation, while the commissioner also has the general power of direction and control over all members of the force. As such, he can assign members to particular duties and investigations and he can prescribe operational policies. He is responsible for the day-to-day management and general discipline of the force. The commissioner is himself accountable to the Minister for Justice for the performance of the force in providing a police service for the State. That, however, is confined to explanatory accountability. It does not entail a ministerial power to direct the commissioner in operational matters such as criminal investigations. The commissioner is not accountable in any way to the public prosecutor. Equally, the public prosecutor has no power to issue binding instructions or directions to the commissioner in respect of criminal investigations or prosecutions.

In practice the Garda Siochana often works closely with the public prosecutor. In respect of serious criminal offences the investigation will be carried out by the Garda Siochana. When they have gathered sufficient evidence to charge a suspect they will normally charge him and transmit the file to the public prosecutor who will be responsible for preparing the case for trial. It may happen in some cases that the Garda will seek the advice of the prosecutor on legal matters in the course of the investigation. Usually, this will concern advice on whether certain conduct comes within the scope of a particular criminal offence, or advice on whether a suspect should be released without charge, or charged and brought before a court to be remanded. The prosecutor invariably responds to these requests. The Public Prosecution System Study Group recommended that the guidance issued from time to time in response to ad hoc requests should be codified and consolidated to form a constantly updated set of guidelines which would remain confidential within the prosecution system to the extent that that was necessary (see Report of the Public Prosecution System Study Group, Dublin: Stationery Office, 1999, para. 5.9.3). In less serious offences where the Garda will pursue the prosecution themselves requests for advice may concern evidential or procedural matters. It also happens from time to time that the public prosecutor requests the Garda to carry out further investigations in a particular case.

These examples fall very short of a direct role for the public prosecutor in criminal investigations. Ultimately, responsibility for a criminal investigation carried out by the Garda Siochana rests with the Garda commissioner. In practice the commencement and conduct of all serious criminal investigations is a matter for the Garda. The Director of Public Prosecutions has absolutely no role in setting priorities on when investigations should or should not be commenced. Equally, the Garda do not need the approval of the public prosecutor to commence any particular investigation, nor do they need his approval for the use of certain investigative techniques. Indeed, it would be improper for the public prosecutor to direct a member of the Garda Siochana to exercise his powers in a particular way in any individual case (State (McCormack) v Curran, 1987, ILRM 225). It follows that the Garda are not obliged to consult with the prosecutor on any aspect of an investigation, nor can the prosecutor give them detailed instructions on how they should conduct an investigation. While members of the Garda might seek advice for the prosecutor from time to time, and while the latter might request further investigations to be carried out from time to time, the reality is that the discharge of the investigative function and the exercise of the prosecutorial function are kept quite separate, at least in serious criminal cases. It will be seen later that in minor cases the two functions are often merged in the Garda Siochana.

The separation of the investigative and prosecutorial functions raises the question of who has responsibility for enforcing the law and proper standards in the conduct of the police investigation. The immediate responsibility rests on the shoulders of the Garda commissioner. He is directly responsible for ensuring that the members of the force comply with the law and good practice in the conduct of investigations. This includes the power and responsibility to put appropriate administrative rules and procedures in place to complement the more general requirements prescribed by law. As the disciplinary authority for the force the commissioner can use the internal disciplinary procedure to punish breaches of the law or good practice governing criminal investigations. In addition there is an independent citizens complaints system. As an integral part of this system all citizen complaints which allege criminal conduct on the part of a member must be referred to the DPP for consideration of possible criminal charges.

Ultimately, each member of the Garda Siochana is accountable to the law for what he does or does not do in the course of a criminal investigation. If a member behaves in a manner which amounts to a criminal or civil wrong he is liable to be held accountable for his action or inaction through the civil or criminal process. If a member resorts to unlawful or improper methods in the gathering of evidence there is also the possibility that that evidence will be excluded from the trial by the trial judge on account of the impropriety in the methods by which it was obtained. Indeed, the public prosecutor might even decide not to proceed with a prosecution if he feels that key evidence will be excluded because of the manner in which it was obtained. This can function as an indirect channel through which the prosecutor can influence police investigative practices.