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Interference with Prosecutions

The resignation of Mr Sargent from his role of Minister of State last night relates to a central element of the criminal justice system in Ireland – prosecutorial independence.

The Prosecution of Offences Act 1974, which created the office of the DPP, was introduced in part to reduce the demands made on the office of the AG who was also legal advisor to government, a role that had become more demanding since Ireland joined the EEC in 1972, but also due to an increasing need for independence from government in the prosecution of offences. While the AG is a political appointee who falls with the government, the DPP is defined as a civil servant who is ‘independent in the performance of his functions.’ Neither the government nor the AG can question him on the exercise of his functions. The DPP has stated in his reports that this independence is essential to safeguard the citizen against arbitrary, unjust or improperly motivated prosecutions. Enhancing this independence, under s.6, communication with the AG, or his agent, the DPP or his agent or a member of an Garda Síochána or a solicitor acting on behalf of the AG or the DPP in an official capacity, in relation to decisions to prosecute, the withdrawal of initiated proceedings, decisions not to charge or to withdraw charges, is made unlawful by the legislation. Indeed, the section specifically instructs the prosecutor not ‘to entertain’ any such unlawful communication. Excluded from this are defendants, complaints, or communications from those acting as a medical or legal advisor, social worked or family member. But a politician cannot engage in any discussions with the DPP or any of the above named persons about the prosecution in a case which affects a constituent (either as defendant or victim).

The nature of the legislation on this issue is to make such communications unlawful, not criminal, and in effect they place a greater burden on the prosecutor not to entertain them. What is clear from yesterday’s events is that such actions by a politician are deemed to merit resignation, an encouraging indication of how serious and wrong these actions are perceived to be by the politicians of Ireland. To clarify, this incident is wholly separate from the Philip Sheedy affair where politicians interfered led to judicial interventions regarding the sentence of Mr Sheedy.

The Irish Times quotes Mr Sargent:

“My intention was to ensure the Garda were aware I had received a representation from a victim in an alleged assault and that the full preparation of the case would benefit from witnesses not yet interviewed being interviewed before proceeding further. The victim was afraid for his safety, meanwhile.”

In his letter to the garda investigating the case in 2008 the TD expressed his shock that the constituent, Dominic McGowan, was being charged with an offence rather than being called as a witness in the case and he added: “It is, I believe, wholly inappropriate to proceed with this summons at this point.”

Such a statement, expressing this strong opinion on the case, could not be interpreted other than as an attempt to influence the prosecution case. The grounds for perceiving this as unacceptable are numerous. For the integrity of the criminal justice system it essential that politicians do not make interventions of this sort. Mr Sargent had heard just one side of the case, did not have the full facts to hand and was not in a position to make judgements on the correct course of action in this case. In the case the individual involved was entitled to contact the Gardai either personally or through a lawyer and if dissatisfied with the outcome could complain to the Garda Ombudsman Commission. Prosecutors of all cases need to be free to make the decisions which they believe to be correct and in accordance with the law without pressure from senior politicians. This system would otherwise become embroiled in corruption.

Mr Sargent’s actions were, as he accepts, unlawfully and thankfully no politicians have attempted to defend him. Two further points arise for consideration from this event however. First, the Irish Times article at times suggests ‘letters’ had been leaked but no mention has been made as yet of any response received from the Gardai, who are not supposed to entertain such communication. It is essential that it is ensured that those involved did not engage in discussions with the Gardaí concerning the case. Second, and related, is the fact that while Mr Sargent was held to account via the democratic mechanisms, no mechanism exists in Ireland to hold the DPP to account for the exercise of his powers. In other jurisdictions mechanisms are put in place to review the work of prosecutors and ensure that their powers are appropriately exercised. In England, for instance, an Inspectorate exists to examine the work of the Crown Prosecution Service. So while this case concerned contact with the Gardaí in the case, and opened the possibility of recourse to the Garda Ombudsman Commission, an individual who wishes to complain about the decision or indecision of the DPP has no such direct outlet. This incident provides an opportune moment to consider the English example.

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