Prosecutors should not participate in any way in discussions between defence lawyers and judges about possible penalties in the event of a guilty plea, according to the DPP's guidelines.
"Such a procedure, in the absence of any legislation authorising it, is of doubtful conformity with the requirement of Article 34.1 of the Constitution that justice be administered in public," they say.
However, this does not mean that there cannot be pre-trial discussions concerning pleas, providing certain requirements are met. An offer that the defendant would plead guilty to some charge, or a lesser charge than that proposed, can be considered, but only where the charge is appropriate to the criminal conduct involved, and where there is evidence to support it.
The prosecutor must also take into account whether the likely penalty is appropriate to the criminal conduct involved. He should look at the accused's background and history, and consider the views of the investigating garda. Another consideration is whether the accused is willing to co-operate in the investigation or prosecution of others, as happened in the investigation of the murder of Veronica Guerin.
The views of victims should also to be taken into account but they cannot be the decisive consideration. The guidelines emphasise that the DPP acts on behalf of the people, not the victim, and that it is the public interest and the interest of the State that are paramount in decisions on prosecutions.
Nonetheless, the rights of victims in the prosecution process are spelt out. This includes "having regard to" their views when deciding on a prosecution. If a decision not to prosecute is made, the DPP must examine a request from a victim to have this decision reviewed by a different officer than the one who made the original decision. He can also seek a review of sentences which he considers unduly lenient.
The right of the prosecution to ask the Court of Criminal Appeal to review a sentence considered "unduly lenient" was introduced in 1993, arising from public concern about some sentences.
However, the chances of increasing a sentence on appeal to this court are slight. The DPP points out that the onus lies on him to show, not just that the sentence was lenient, but "unduly lenient", which involves comparison with other sentences given for similar crimes. Great weight is given to the judge's reasons for imposing such a sentence and "nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of the court in order to increase the sentence."
The guidelines relate mainly to serious offences, which are tried on indictment and before a judge and jury, rather than before a district judge. Less serious crimes are normally prosecuted by the Garda without reference to the DPP, and go the local district court. However, all cases involving homicide, sexual offences, cases under the Official Secrets Act, those involving corruption and cases likely to go to the Special Criminal Court must go to the DPP.