The first consideration in deciding to mount a prosecution should be whether there is enough evidence to support it, according to prosecution guidelines published by the Director of Public Prosecutions yesterday.
This is the first time the criteria used by the DPP in deciding whether to prosecute have been published.
They will be circulated to officers within the DPP's office and the criminal division of the Chief State Solicitor's Office, local state solicitors throughout the State and members of the Bar.
Launching the guidelines last night, the DPP, Mr James Hamilton, said they had been drafted following intensive consultation within his own office and that of the Chief State Solicitor, the Bar Council, and the Deputy Commissioner of the Garda S∅ochβna.
The investigation process and the prosecution process are independent of each other, he said. "In every case tried on indictment, the original prosecutorial decision is made by a prosecutor who is independent of the investigator, and the case is then handled in court by a barrister. [The barristers] act in accordance with the very strict ethical rules of the Bar of Ireland and bring their independent professional judgment to bear on every case," he said.
He stressed the impossibility of explaining decisions not to prosecute in individual cases, already outlined by his predecessor. "It could lead to the stigmatisation of individuals as in fact guilty of committing crimes without having the opportunity to clear their names in public."
However, he hoped that the publication of the guidelines would enable the public to understand the general basis on which such decisions were made.
The guidelines cover the considerations taken into account in the decision, the choice of charge brought, the rules concerning disclosure of evidence to the defence, pre-trial discussions with the defence concerning guilty pleas, and the rights of victims.
The fundamental consideration is whether the prosecution is in the public interest, according to the guidelines. They continue: "The prosecutor should not lay a charge where there is no reasonable prospect of securing a conviction before a reasonable jury or a judge in cases heard without a jury."
The guidelines list a number of considerations concerning confession evidence, including the age, intelligence, mental state and apparent understanding of the suspect. "Are the admissions consistent with what can be objectively proved?" they ask.
Once a decision is made on the reliability of the evidence, the next issue is whether a prosecution is in the public interest. While seeing the wrongdoer convicted and punished is itself in the public interest, this might be overriden by other considerations. These include where the accused is very young, very elderly or very ill, the prevalence of this type of offence and the attitude of the victim or the victim's family to a decision not to prosecute.
In a clear reference to prosecutions relating to the murder of Veronica Guerin and the witness protection programme, another consideration is "whether the offender is willing to co-operate in the investigation or prosecution of other offenders, or has already done so".
On the other hand, the prosecutor will also have to consider the seriousness of the offence, whether the accused is in a position of authority, or a ringleader, or on bail when the offence was committed, or is likely to repeat the offence.
The documents contains a number of guidelines concerning the conduct of the prosecution in court. This means "conducting the case fairly, but also skilfully and firmly", but not "striving for a conviction at all costs".
The prosecution must disclose to the defence all relevant evidence, even if the prosecution does not intend to use that evidence in the case.
Exceptions to this rule are confidential statements that might identify a Garda informant, the identity of people who helped in the investigation but did not intend to be witnesses and who might be placed in danger, and other evidence where it would not be in the public interest to disclose it. However, all these exceptions do not apply if the innocence of the accused person is at stake.