CCPE-BU (2007) 15 rev

BUREAU OF THE CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

ALTERNATIVES TO PROSECUTION IN COUNCIL OF EUROPE MEMBER STATES

IV. QUESTIONNAIRE

1             (i) Ireland follows a system of discretionary prosecution. Please also see reply at 3 for discussion of this aspect generally.

           

(ii) The situation in relation to discretionary prosecution has not changed during the last two years and a change in the present system is not envisaged.

(iii) and (iv) The 2006 Annual Report for the Office of the Director of Public Prosecutions (DPP) published in May 2007 indicates the following statistics for 2005 and 2006:

2005:  60% of files received by the Office of the DPP resulted in a criminal law response (30% of files resulted in a direction to prosecute on indictment and 30% in a direction to prosecute by summary disposal).  38% of files received resulted in a direction that there should not be a prosecution. (In the remaining 2% of cases the matter was still under consideration).

In the case of 5% of the 38% of files (ie 1.9% of the total files received) that resulted in a direction not to prosecute, the main reason for non prosecution was a recommendation for admission to the Juvenile Diversion Programme described at 3(iii).

In the case of a further 7% of that 38%  (ie 2.66% of the total files received) the main reason for non prosecution were public interest or sympathetic grounds.

2006: 60% of files received resulted in a criminal response (33% resulted in a direction to prosecute on indictment, 27% resulted in a direction to prosecute by summary disposal). 35% of files received resulted in a direction that there should not be a prosecution. (In the remaining 5% of cases the matter was still under consideration).

In the case of 4% of the 35% of files (ie 1.4% of the total files received) that resulted in a direction not to prosecute, the main reason for non prosecution was a recommendation for admission to the Juvenile Diversion Programme described at 3(iii).

In the case of a further 5% of that 35%  (ie 1.75% of the total files received) the main reason for non prosecution were public interest or sympathetic grounds.

Statistics by which to assess the proportion of alternatives to prosecution responses are otherwise not readily available, as the adult cautioning scheme and juvenile diversion programme are administered by the Garda Siochana (police) and have not been statistically analysed from that perspective.

2             Judicial authorities do not have a role in deciding whether or not a person should be dealt with under the processes of the criminal law. This is a matter for the prosecutor. Please also see the response at 3 below.

3             This is a matter for the prosecutor. The DPP decides whether or not to prosecute in respect of all indictable offences (except for a very limited category of offences still prosecuted at the suit of the Attorney General) and if so, what charges to bring. The DPP may also direct summary prosecutions.

a.    Summary offences are less serious crimes heard by a judge without a Jury in the District Court; and carry a maximum prison sentence of 12 months for one offence.

b.    Indictable offences are more serious crimes heard by a judge and jury in the Circuit Court or the Central Criminal Court, carry more serious penalties if the court convicts the accused – up to life imprisonment for some crimes; and are sometimes dealt with in the Special Criminal Court by three judges without a jury.

Most summary prosecutions brought in the District Court are brought in the name of the DPP. In practice the great majority are presented by officers of the Garda Síochána (Irish police) without reference to the DPP. However such prosecutions are brought in the name of the DPP and such officers must comply with his directions, whether general or specific. The term “prosecutor” in these replies means the DPP and all, including the Garda Síochána (Irish police), who act on his behalf.

The DPP may decide not to prosecute in a particular case, having regard to a number of criteria including the strength of the evidence and the public interest.

It is a matter for the prosecutor to decide whether criminal law measures or alternative measures should apply.  The specific role of the prosecutor is to examine the evidence and evaluate it in light of the surrounding circumstances of the case. He must firstly decide if there is a prima facie case against the suspect. By this is meant admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the suspect. He must then go on to consider whether or not there is a reasonable prospect of a conviction. If not so satisfied there should not be a prosecution.

Once satisfied that there is sufficient evidence to justify a prosecution he must then consider whether the public interest requires a prosecution or whether the public interest is best served by dealing with the matter in another way.  The alternatives available to the prosecutor are (i) to not prosecute; (ii) to recommend that the suspect be dealt with under the Adult Cautioning Scheme; (iii) to recommend that a juvenile be dealt with under the Juvenile Diversion Programme. The latter two schemes are operated by the Garda Siochana (police).  In addition, certain offenders may be dealt with under the Drug Treatment Court Programme (see replies to question 8 below).

(i)   A decision not to prosecute.

Taking into account the factors referred to above the DPP decides whether to prosecute or whether the public interest would best be served by means other than a prosecution.   It is not the rule that offences for which there is sufficient evidence must automatically be prosecuted.

In some cases the DPP may decide that the decision not to prosecute be accompanied by a direction to the Garda Siochana (police) that the suspect be informally warned as to his future behaviour. Such a warning, while non binding, may inform future decisions should the suspect offend again. There is no requirement, however, for any such warning to accompany the decision and the decision is one that the DPP makes in his absolute discretion.

Alternatively, the DPP may decide to grant an indemnity against prosecution in order to have the suspect’s evidence available against others.

Special arrangements are in force concerning applications for immunity on behalf of offenders who have reported the activities of unlawful cartels in which they have participated. The DPP has agreed with the Irish Competition Authority how to consider such applications and a published Cartel Immunity Programme sets out the policy of both the DPP and the Authority and outlines the process through which parties must agree to cooperate in order to qualify for immunity. The Programme is published on the DPP’s website at www.dppireland.ie and on the website of the Competition Authority at www.tca.ie.

(ii) Adult Cautioning Scheme.

An Adult Cautioning Scheme has been in operation since the 1st February 2006. The Scheme, implemented by the Garda Siochana, applies to certain offences committed on or after the commencement date of 1st February 2006, and to persons aged 18 years and upwards. It is an alternative to the prosecution of certain persons against whom there is evidence of the commission of a specified (scheduled) criminal offence, where the prosecution of such offence is, in the particular circumstances of the case, not required in the public interest.

The offences to which the Adult Cautioning Scheme applies include intoxication in a public place; disorderly conduct; threatening, abusive and insulting behaviour; assault; damaging property; and threat to damage property.

It is the circumstances in which the offence is committed as much as the ingredients of the offence itself that will be of importance. If the public interest does not require a prosecution in those circumstances, cautioning may then be appropriate. Consideration must always be given as to whether or not a caution of the person in question is in the public interest. Certain persons, for example, those without previous convictions, may be dealt with effectively and deterred from acting in a criminal manner in the future through cautioning rather than prosecution.

Before the offence and the offender are considered for the application of a caution, the views of any victims must, if reasonably possible, be sought. The effect on the victim of the offence in question, and, any reason advanced by him/her as to why a caution should not be applied must be carefully considered before a decision is taken on whether to prosecute or to caution. However, a caution may be appropriate even if the victim is opposed to it. In such a case it may be appropriate for the Garda Siochana (police) to refer the case to the DPP.

(iii) Juvenile Diversion Programme

Section 18 of the Children Act 2001 provides that “unless the interests of society otherwise require, any child who has committed an offence and accepts responsibility for his criminal behaviour shall be considered for admission to a Diversion Programme.”

The programme is operated by the Garda Siochana (police) under the supervision of a Superintendent, Community Relations Section, who is known as the Director.  At local level the programme is implemented by Garda Juvenile Liaison Officers who are trained in Restorative Justice Principles and mediation skills.  In order for a juvenile to be eligible for caution under the programme, the following criteria have to be met:

·         The offender is under 18 years of age at the time of the commission of the offence

·         The juvenile must admit involvement in the crime/offence

·         The juvenile was not cautioned previously, or if cautioned previously it would be deemed appropriate to administer a further caution

·         The parents, guardians or person acting in loco parentis agree to terms of the caution.

The Children Act 2001 introduces the concept of Restorative Justice into the Irish criminal justice system as a new means of dealing with juvenile offenders. In this new process there is a mechanism for bringing the offender and the injured party together so that the injured party has an opportunity to say how the crime affected him/her and it poses a new challenge to the offender in that he/she must now confront and deal with the harm caused.

A Juvenile Liaison Officer, who is trained in mediation and facilitation skills, facilitates the process. The offender is then given the opportunity to take some action that will, in some way, attempt to restore things to where they were prior to the commission of the offence.  This action may take the form of an apology, compensation or a specific undertaking. The offender may then enter into a plan designed to help him/her move away from the possibility of re-offending.

4             The Office of the DPP has published guidelines for prosecutors. These, while not binding on the DPP, are intended to guide the initiation and conduct of prosecutions, including the decision whether or not to prosecute. The guidelines also deal with factors relevant to deciding on whether the public interest requires a prosecution. The guidelines are available electronically on the Office’s web site at www.dppireland.ie and are intended to set out the standards that the DPP expects of those who act on his behalf. The DPP, however, retains an absolute discretion as to whether or not to initiate a prosecution.

5     Yes.  The DPP has absolute discretion in making a decision as to whether or not to prosecute.  As stated above, it is not the rule that offences for which there is sufficient evidence must automatically be prosecuted.  Accordingly a serious offence can escape any prosecution because of a decision by the DPP not to prosecute. It is, however, unlikely that this would occur without the DPP first being satisfied that an alternative approach was justified.  In this regard the provisions of paragraphs 4.6 and 4.17 of the Director’s published “Guidelines for Prosecutors” are relevant:

                  “4.6     There is a clear public interest in ensuring that crime is prosecuted and that the wrongdoer is convicted and punished.  It follows from this that it will generally be in the public interest to prosecute a crime where there is sufficient evidence to justify doing so, unless there is some countervailing public interest reason not to prosecute.  In practice, the prosecutor approaches each case first by asking whether the evidence is sufficiently strong to justify prosecuting.  If the answer to that question is “no” then a prosecution will not be pursued.  If the answer is “yes” then before deciding to prosecute the prosecutor will ask whether the public interest favours a prosecution or if there is any public interest reason not to prosecute.”

                  “4.17 The factors which may properly be taken into account in deciding whether the public interest requires a prosecution will vary from case to case.  As already stated the interest in seeing the wrongdoer convicted and punished and crime punished is itself a public interest consideration.  The more serious the offence, and the stronger the evidence to support it, the less likely that some other factor will outweigh that interest.  The first factor to consider in assessing where the public interest lies is, therefore, the seriousness of the alleged offence and whether there are any aggravating or mitigating factors.”

6     If a criminal prosecution is not proceeded with victims are informed by the Garda Siochana (police) once the decision has been made.  They may on occasion be informed beforehand, and may be asked for their views.  However the DPP has undertaken to have regard to any views expressed by victims of crime when making decisions in specific cases whether or not to prosecute and to examine any request from a victim of crime for a review of a decision not to prosecute and in appropriate cases to have an internal review of the decision carried out by an officer other than the one who first made the decision. However, while the DPP will have regard to a victims views he will not necessarily be bound by them.  Please see also the response at 7 below in relation to challenging the DPP’s decision.  See also paragraph 12.2 of the published “Guidelines for Prosecutors”:

“12.2 The Director prosecutes cases on behalf of the People of Ireland and not just in the interests of any one individual.  For this reason, although the views and interests of the victim are important, they cannot be the only consideration when deciding whether or not to prosecute.  However, the Director will always take into account the consequences for the victims of the decision whether or not to prosecute or in relation to the acceptance of a plea and will consider any views expressed by the victim or the victim’s family.”

7             Ordinarily neither a victim nor a suspect can challenge a decision to proceed or not proceed with a prosecution. A decision not to prosecute a suspect will not impose any obligations on him such as reparation of damage (save to the limited extent to which it may be voluntarily undertaken as part of the Garda Siochana (police) Juvenile Diversion Programme described at 3 (iii) above).  Decisions of the Office of the DPP are subject to judicial review only if (a) there was mala fides in the making of the decision; (b) there was an improper policy motive in the making of the decision; (c) if there is a failure to observe fair procedures or (d) if it can be shown that there has been a breach of the requirements of natural and constitutional justice.  A victim may request a review of a decision not to prosecute as described above.

           

8          Both the adult caution scheme and the juvenile diversion scheme are particularly well suited to the prevention of re-offending and the consideration of victims’ interests in their adoption of a restorative justice approach. There is some empirical evidence to suggest that they are effective in meeting the needs of victims and in addressing the offending behaviour in a manner that encourages the offender to take responsibility for his or her actions, reducing the likelihood of recidivism. 

The Garda Commissioner stated in the 1999 Annual Report of the Garda Síochána (at p. 83) that of the total number of young people cautioned through the then non statutory Juvenile Diversion Scheme since its inception to the end of 1999 (110,611), 89% have been found not to re-offend before reaching 18 years of age. That scheme has since been placed on a statutory footing as described at 3(iii). The 2005 annual report of the Garda Síochána states that by the end of that year 178,485 children had benefited from inclusion in the programme.  However, no more up-to-date statistics are available on the level of re-offending by participants in the scheme. In March 2007 the Department of Justice established a National Commission on Restorative Justice to review and report on the restorative justice programmes in operation in Ireland. Details of the Commission’s terms of reference are available online at www.justice.ie 

On 2 May 2007 the National Crime Council presented a report to the then Minister for Justice recommendinged the establishment of Community Courts.  Further information on this can be found on www.irlgov.ie/crimecouncil

The Drug Treatment Court Programme (DTC) is an innovative programme in which drug addicts who are convicted of non-violent crimes are afforded an opportunity to escape the cycle of drugs, crime and prison. Participants are constantly under the supervision of the Court.  Once a person is accepted into the Programme, his/her charge(s) is put on hold. If they are successful in the Programme, eventually they may graduate and the charge(s) will be struck off the record. However, persistent non-compliance and/or non-attendance may result in the Court imposing sanctions on the participant. In extreme circumstances, where it is clear that the participant will not succeed in the Programme, the court will send the person back to the original court for sentencing. A person who is interested in participating in this Programme can apply to do so. As an initial requirement the person must have pleaded guilty or have been convicted of certain offences in the District Court. They (or their solicitor) can then ask the judge to remand them to the Drug Treatment Court.

Various different treatments are available. A person can detoxify in the community or in hospital or go drug free, or take methadone maintenance or methadone reduction. The individual concerned will come to an agreement about the treatment with the Team and attend counselling and group work. As well as drug treatment the person will be required to take part in educational and/or other programmes within the community to give him/her new skills or improve skills he/she may already have, or to enter employment.  For each participant a Personal Progression Plan or PPP is drawn up. This charts their progress through the Programme. The Programme consists of 3 phases illustrating the participants' decreasing levels of dependency on drugs and an increase in their corresponding independence and pro-social attitudes. Decisions on participants' success at each phase of the programme are made by the Judge on the basis of information provided by the Team. Depending on individual needs and motivation, the programme lasts at least a year.

9-10    To our knowledge there is no structured or formalised method whereby such assessments are carried out.  Individual academics and criminal justice bodies (such as the Gardaí, Department of Justice, Irish Youth Justice Service, National Crime Council, Irish Penal Reform Trust, Association for Criminal Justice Research and Development) conduct research on many aspects of the criminal justice system, including the effectiveness of alternatives to prosecution. This is primarily a matter for the Department of Justice, Equality and Law Reform: www.justice.ie.

11        N/A.