Table of Contents
Decision to Prosecute
The decision of the DPP to prosecute or not to prosecute offences in an individual case is not generally reviewable by the courts. Courts have taken the view that this would interfere with the independence of the office.
The DPP may decide which charge to bring where a range of charges is possible. The fact that a more serious charge could be brought does not invalidate the DPP’s decision to bring the lesser offence.
It appears that the DPP may reverse its decision not to prosecute even if the accused has been notified otherwise. This is so even if there are no new facts. He need not give reasons for his decision.
Limited Scope for Review
The courts take the view that it would interfere with the operation of the DPP’s office if it were the subject of constant applications seeking to force it to prosecute or not to prosecute.
Exceptionally, it might be shown that the DPP has acted in an arbitrary and capricious manner contrary to fair procedures. However, generally, the DPP’s decision to prosecute or not prosecute may not be successfully reviewed.
There may be exceptional cases where it could be shown that the decision to prosecute or not to prosecute was undertaken in bad faith for an improper motive or improper policy. In principle, if such could be shown, the court may review the decision.
Communication with DPP
It is not lawful to communicate with the Attorney General, the DPP or a solicitor representing them or with a member of An Garda Síochána for the purpose of influencing the making of the decision to withdraw or not to initiate criminal proceedings or any charge in criminal proceedings. The person receiving such communication must not entertain it further.
The above provision does not apply to communications made by a person who is a defendant or complainant in criminal proceedings or believes that he is likely to be a defendant. It does not apply to communications made by a person involved in a matter either personally or as a legal or medical advisor to a person involved in the matter or as a social worker or a member of a family of the person involved. A member of a family refers to parents, grandparents, siblings, children, and grandchildren.
The prohibition does not provide a sanction in itself. However, it is an offence to obstruct the course of justice.
Companies
A company or other body corporate may generally be prosecuted. It is deemed resident where its registered office and principal place of business is. Fines may be levied on a body corporate by distress.
Many offences provide that officers, directors, managers of the body corporate who may also be prosecuted for the offence and prosecuted in the same way as the corporation. This will generally occur where the offence is attributable to any act or neglect on their part in their capacity as an officer or manager.
Generally, where a person is found guilty of an offence whether as a promoter, officer, auditor, liquidator or examiner involving fraud in relation to any company, its members or creditors, the court may of its own motion make a disqualification order for such period as it sees fit. In the case of conviction on indictment for certain serious company law offences, persons are deemed automatically the subject of a disqualification order.
Where a company has obliged to enter a recognizance, it may be entered on its behalf by an agent of the corporation authorised in writing under seal.
An unincorporated entity has no separate legal existence. At common law, it may not be prosecuted as such. Its underlying members may be prosecuted.
Laws may allow prosecution of an incorporated body. Provision is made in the intoxicating liquor legislation in relation to clubs. It makes specific provision for conviction of the club and for enforcement against it as if it was a corporate body.