No. 22/1974:

PROSECUTION OF OFFENCES ACT, 1974

ARRANGEMENT OF SECTIONS

1 Definitions.

2 Director of Public Prosecutions.

3 Functions of Director.

4 Performance of functions of Attorney General and Director.

5 Proceedings by Attorney General.

6 Prohibition of certain communications in relation to criminal proceedings.

7 Retaining of barristers on behalf of State.

8 Proof of certain document.

9 Power of Taoiseach to make certain temporary and other appointments.

10 Regulations.

11 Repeal of section 22 of Criminal Justice Act, 1951.

12 Laying of orders and regulations before Houses of Oireachtas.

13 Expenses.

14 Short title and commencement.

AN ACT TO PROVIDE FOR THE ESTABLISHMENT OF THE OFFICE OF DIRECTOR OF PUBLIC PROSECUTIONS, TO PROVIDE FOR THE FUNCTIONS OF THE OFFICE AND TO PROVIDE FOR OTHER MATTERS CONNECTED WITH THE MATTERS AFORESAID AND WITH THE ADMINISTRATION OF THE LAW.

[23rd July, 1974]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—In this Act—

"the Acting Director" has the meaning assigned to it by section 9 of this Act;

"criminal matters" includes criminal proceedings and applications for any order of certiorari, mandamus, prohibition or other State side order or injunction with respect to criminal proceedings or any other proceedings connected with criminal proceedings or any matter arising thereout and also includes cases stated, certifications by an Attorney General under section 29 of the Courts of Justice Act, 1924 , references under section 34 of the Criminal Procedure Act, 1967 , and applications and other proceedings arising out of criminal proceedings;

"the Civil Service" has the meaning assigned to it by the Civil Service Commissioners Act, 1956 ;

"the Director" has the meaning assigned to it by section 2 of this Act;

"functions" includes powers and duties and references to the performance of a function include references to the exercise of a power and the carrying out of a duty;

"professional officer" means an officer who is a barrister or a solicitor.

2.—(1) There is hereby established the office of Director of Public Prosecutions and the holder of the office shall be known as the Director of Public Prosecutions and is referred to subsequently in this Act as the Director.

(2) The Director shall be appointed by the Government.

(3) ( a ) A person shall not be appointed to be the Director unless at the date of his appointment he is a practising barrister or a practising solicitor and has practised as a barrister or as a solicitor for at least ten years.

( b ) For the purposes of this subsection, service for any, period in a position in the Civil Service for appointment to which practice as a barrister or a solicitor was a necessary qualification, shall be deemed to be practise as a barrister or a solicitor, as the case may be for that period and a person, while holding such a position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be.

(4) The Director shall be a civil servant in the Civil Service of the State

(5) The Director shall be independent in the performance of his functions.

(6) The Attorney General and the Director shall consult together from time to time in relation to matters pertaining to the functions at the Director.

(7) ( a ) (i) There shall be a committee consisting of

(I) the Chief Justice,

(II) the Chairman of the General Council of the Bar of Ireland,

(III) the President of the Incorporated Law Society,

(IV) the Secretary to the Government, and

(V) the Senior Legal Assistant in the Office of the Attorney General.

(ii) In the case of any of the persons aforesaid signifying at any time his unwillingness or inability to act for any period as a member of the, committee the Taoiseach may, after consultation with the Attorney General, appoint another person to be a member of the committee in his place for that period.

( b ) The committee established by this subsection shall, whenever so requested by the Taoiseach, select candidates for appointment to the office of Director and shall inform the Taoiseach of the candidates selected and of their suitability for such appointment.

( c ) The Government shall not appoint a person to be the Director unless the person was selected or amongst those selected by the committee aforesaid pursuant to a request under paragraph (b) of this subsection in relation to that appointment, but—

(i) if the candidate is unable to select a suitable candidate pursuant to a particular request under that paragraph, or

(ii) if the Government decide not to, appoint to, be the Director any of the candidates selected by the committee pursuant to a particular request under that paragraph.

then either—

(I) the Government shall appoint a person to be the Director who was selected or amongst those selected by the committee pursuant to a previous request (if any) under that paragraph in relation to that appointment or

(II) the Taoiseach shall make a further request to the committee under that paragraph and the Government shall appoint a person to be the Director who was selected or amongst those selected by the committee pursuant to that request or pursuant to another request under that paragraph in relation to that appointment.

( d ) The Taoiseach may, after consultation with the Attorney General, make regulations for the purposes of this subsection.

(8) ( a ) The Director shall hold office upon such terms and conditions as may be determined by the Taoiseach after consultation with the Minister for the Public Service.

( b ) (i) The Taoiseach shall, after consultation with the Minister for the Public Service, make a scheme for the grant of superannuation benefits for the Director.

(ii) The scheme shall fix the time and conditions of retirement of the Director.

(iii) The Taoiseach may, after consultation with the Minister for the Public Service, make a scheme amending a scheme under this subsection.

(iv) A scheme under this subsection shall be carried out in accordance with its terms.

(v) Every scheme under this subsection shall be laid before each House of the Oireachtas as soon as may be after it is made and, if either House, within the next twenty-one days on which that House has sat after the scheme is laid before it, passes a resolution annulling the scheme, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(9) ( a ) The Director may be removed from office by the Government after consideration by them of the report of a committee under paragraph (b) of this subsection.

( b ) Whenever the Government so request, a committee appointed by them and consisting of the Chief Justice, a Judge of the High Court nominated, by the Chief Justice, and the Attorney General shall—

(i) investigate the condition of health, either physical or mental, of the Director, or

(ii) inquire into the conduct (whether in the execution of his office or otherwise) of the Director, either generally or on a particular occasion,

and, in either case, with particular reference to such matters as may be mentioned in the request and the committee may conduct the investigation or inquiry in such manner as it thinks proper, whether by examination of witnesses or otherwise, and in particular may conduct any proceedings in camera and for this purpose shall have all such powers, rights and privileges as are vested in a Judge of the High Court on the occasion of an action and, upon the conclusion of the investigation or inquiry, the committee shall report the result thereof to the Government.

(10) There shall be employed in the office of the Director so many officers and servants as the Taoiseach shall, with the sanction of the Minister for the Public Service, from time to time determine and all such officers and servants shall hold notice on such terms and conditions as the Minister for the Public Service shall prescribe.

(11) The power of appointing a person to be an officer or servant of the Director shall be vested in the Taoiseach.

3.—(1) Subject to the provisions of this Act, the Director shall perform all the functions capable of being performed in relation to criminal matters and in relation to election petitions and referendum petitions by the Attorney General immediately before the commencement of this section and references to the Attorney General in any statute or statutory instrument in force immediately before such commencement shall be construed accordingly.

(2) The functions capable of being performed by the Attorney General immediately before the commencement of this section in or in relation to any criminal matters, or to election petitions or referendum petitions, to which the Attorney General is a party and which have not then been concluded shall, upon such commencement, be performed by the Director and references to the Attorney General in those proceedings shall be construed as references to the Director and any act or thing done or step taken by or on behalf of the Attorney General in or in relation to those proceedings shall be deemed to have been done or taken by or on behalf of the Director.

(3) Nothing in this section shall affect the functions of the Attorney General in relation to any question as to the validity of any law having regard to the provisions of the Constitution.

(4) Notwithstanding anything in this section, the Attorney General may, in addition to the Director, exercise the functions conferred on the Attorney General by section 29 of the Courts of Justice Act, 1924 , and section 34 of the Criminal Procedure Act, 1967 .

(5) Notwithstanding anything in this section, where a person is charged with an offence under section 3 of the Geneva Conventions Act, 1962 , the Official Secrets Act, 1963 , or the Genocide Act, 1973 , no further proceedings in the matter except such remand or remands in custody or on bail as the court may think necessary shall be taken without the consent of the Attorney General.

4.—(1) ( a ) A law officer may direct any of his professional officers to perform on his behalf and in accordance with his instructions any particular function of the law officer in relation to a particular case or cases or in all cases in which that function falls to be performed.

( b ) the reference in paragraph (a) of this subsection to professional officers shall be construed, in the case of a direction by the Acting Director, as a reference to professional officers of the Director.

(2) A law officer may, without prejudice to the validity of anything previously done thereunder, revoke a direction given by him under this section.

(3) The fact that a function of a law officer has been performed by him (whether it has been so performed personally or by virtue of subsection (1) of this section) may be established, without further proof, in any proceedings by a statement of that fact made—

( a ) in writing and signed by the law officer, or

( b ) orally to the court concerned by a person appearing on behalf of or prosecuting in the name of the law officer.

(4) In this section "law officer" means the Attorney General, the Director or the Acting Director.

5.—(1) Whenever the Government are of opinion that it is expedient in the interests of national security to do so, they may from time to time declare by order that, in relation to criminal matters of such kind or kinds as are specified in the order, the functions conferred on the Director by this Act may be performed only by the Attorney General, and where any criminal matters stand for the time being so specified, the functions conferred on the Director by this Act in relation thereto shall be performed by the Attorney General and not by the Director.

(2) The Government may, by order, amend or revoke an order under this section including an order under this subsection.

6.—(1) ( a ) Subject to the provisions of this section it shall not be lawful to communicate with the Attorney General or an officer of the Attorney General, the Director or an officer of the Director the Acting Director, a member of the Garda Síochána or a solicitor who acts on behalf of the Attorney General in his official capacity for the Director in his official capacity, for the purpose of influencing making of a decision to withdraw or not to initiate criminal proceedings or any particular charge in criminal proceedings.

( b ) If a person referred to in paragraph (a) of this subsection becomes of opinion that a communication is in breach of that paragraph, it shall be the duty of the person not to entertain the communication further.

(2) ( a ) This section does not apply to—

(i) communications made by a person who is a defendant or a complainant in criminal proceedings or believes that he is likely to be a defendant in criminal proceedings, or

(ii) communications made by a person involved in the matter either personally or as legal or medical adviser to a person involved in the matter or as a social worker or a member of the family of a person involved in the matter.

( b ) In this subsection "member of the family" means wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister, a person who is the subject of, or in whose favour there is made, an adoption order under the Adoption, Act 1952 and 1964.

7.—(1) The Attorney General shall ensure that barristers retained by him in his official capacity to act or advise on his behalf or on behalf of any other person are chosen, from amongst those barristers who have indicated their willingness to so act or advise, in such manner as to effect a distribution of such retainers amongst then that, in the opinion of the Attorney General, is fair and equitable taking one year with another, having regard to their suitability in relation to any particular retainer, to the public interest and to the distribution of retainers under subsection (2) of this section.

(2) The Director shall ensure that barristers retained by him in his official capacity to act or advise on his behalf or on behalf of any other person are chosen, from amongst those barristers who have indicated their willingness to so act or advise, in such manner as to effect a distribution of such retainers amongst them that, in the opinion of the Director, is fair and equitable, taking one year with another having regard to their suitability in relation to any particular retainer; to the public interest and to the distribution of retainers under subsection (1) of this section.

(3) ( a ) Whenever the Attorney General and the Director so request or the General Council of the Bar of Ireland so requests, the Attorney General, the Director and representatives of that Council shall consult together in relation to the administration and implementation of this section.

( b ) Whenever the Attorney General or the said Council so request, the Attorney General and representatives of that Council shall consult together in relation, to the administration and implementation of subsection (1) of this section.

( c ) Whenever the Director or the said Council so requests, the Director and the Council shall consult together in relation to the administration and implementation of subsection (2) of this section.

(4) The Taoiseach may, after consultation with the Attorney General and the Director, provide by regulations—

( a ) for the investigation of allegations by barristers of non-compliance with the provisions of this section, and

( b ) for such incidental, supplementary and consequential matters, as appear to the Taoiseach to be necessary or expedient for the purposes of the regulations.

8.—(1) Every document purporting to be issued by the Attorney General and to be signed by him shall be received in evidence and be deemed to be such document without further proof, unless the contrary is shown.

(2) Every document purporting to be issued by the Director or the Acting Director and to be signed by him shall be received in evidence and be deemed to be such document without further proof, unless the contrary is shown.

(3) Every document purporting to be issued by a professional officer of the Attorney General or of the Director purporting to act under a direction under section 4 of this Act and to be signed by such officer shall be received in evidence and be deemed to be such document without further proof, unless the contrary is shown.

9.—(1) ( a ) In the event of the office of Director being vacant, the Taoiseach may appoint a person to be Director until such time as an appointment is made under section 2 of this Act.

( b ) A person appointed under this subsection shall hold office upon such terms and conditions as may be determined by the Taoiseach after consultation with the Minister for the Public Service.

(2) ( a ) In the event of the incapacity through illness of the Director, the Taoiseach may appoint a person who shall be known as the Acting Director of Public Prosecutions and who is referred to in this Act as the Acting Director and the Acting Director shall perform all the functions conferred on the Director by this Act.

( b ) No Acting Director shall be appointed to hold office for a term in excess of 12 months.

( c ) The Acting Director shall hold office upon such terms and conditions as may be determined by the Taoiseach after consultation with the Minister for the Public Service.

(3) Notice of an appointment or termination of an appointment under this section shall be published in Iris Oifigiúil.

(4) ( a ) A person shall not be appointed under this section to be Director or Acting Director unless at the date of his appointment he is a practising barrister or a practising solicitor and has practised as a barrister or as a solicitor for at least seven years.

( b ) For the purposes of this subsection, service for any period in a position in the Civil Service for appointment to which practice as a barrister or as a solicitor was a necessary qualification shall be deemed to be practice as a barrister or as a solicitor, as the case may be, for that period and a person, while holding such a position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be.

(5) ( a ) The Taoiseach may terminate an appointment under this section at any time.

( b ) The Taoiseach shall terminate an appointment under subsection (2) of this section upon being satisfied that the incapacity of the Director has ceased.

(6) ( a ) The functions capable of being performed by the Director immediately before the appointment of a person to be Acting Director in or in relation to any criminal matters, or to election petitions or referendum petitions to which the Director is a party and which have not then been concluded shall, upon such appointment, be performed by the Acting Director and references to the Director in those proceedings shall be construed as references to the Acting Director and any act or thing done or step taken by or on behalf of the Director in or in relation to those proceedings shall be deemed to have been done or taken by or on behalf of the Acting Director.

( b ) The functions capable of being performed by the Acting Director immediately before he ceases to hold office in or in relation to any criminal matters, or to election petitions or referendum petitions, to which the Acting Director is a party and which have not then been concluded shall, upon such cesser, be performed by the Director and references to the Acting Director in those proceedings stall be construed as references to the Director and any act or thing done or step taken by the Acting Director in or in relation to those proceedings shall be deemed to have been done or taken by or on behalf of the Director.

10.—The Taoiseach may, after consultation with the Attorney General and the Director, make regulations for enabling this Act to have full effect.

11.— Section 22 of the Criminal Justice Act, 1951 , is hereby repealed.

12.—Every order (other than an order under section 14 of this Act) and regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either House within the next twenty-one days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

13.—The expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

14.—(1) This Act may be cited as the Prosecution of Offences Act, 1974 .

(2) This Act shall come into operation on such day or days as, by order or orders made by the Taoiseach, may be fixed therefor either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.