asked the Taoiseach if he will state (1) under what statutes Ministers decide whether a criminal prosecution shall or shall not be undertaken by the State; (2) what are the Attorney-General's functions on the question of prosecuting or not prosecuting in alleged criminal offences; and (3) what function the Chief State Solicitor has in deciding such matters.
Ceisteanna—Questions. Oral Answers. - Criminal Prosecutions.
There is no statute which enables a Minister to decide whether a criminal prosecution by the State should or should not be undertaken. Where a case of misconduct bearing a criminal aspect occurs in a Department, the Minister concerned reviews all the relevant circumstances of the case—in the same way as would a private employer in such a case—with a view to determining whether the case should be referred by him to the Attorney-General. Considerations which a Minister would naturally take into account include: the public interest aspect, the disciplinary measures already taken against the officer (for example, dismissal), the gravity and frequency of the misconduct, the officer's record and his domestic and other circumstances.
The function of the Attorney-General is to direct prosecutions in cases in which, in his opinion, the evidence furnished to him warrants such a course.
The Chief State Solicitor does not take decisions as to prosecutions, but carries out the directions of the Attorney-General in such cases.
Arising out of the Taoiseach's reply, might I ask what is the law that would entitle an employer to decide whether he would lodge an information or not?
Is it not common in cases where there would be misconduct —I do not like to use any harsher word —on the part of a servant, that the employer would take all the circumstances into account and would decide whether, if there was a criminal aspect or appeared to be a criminal aspect, he would take criminal proceedings and lodge an information?
The law, as I understand it, is that if an employee of mine converts my property to his or her own use and that I then say to that person: "If you do not put it back I will prosecute you," I can demand, according to the Taoiseach now, the amount that he was deficient or more and that I can then say in defence that it is permissible to take the circumstances of the person, the service, and so on into account as to whether I am going to report the matter to the Guards or not.
I am not a lawyer but common sense suggests to me that if somebody in my employment does something which has a criminal aspect or might have, it is possible, if I lodge the necessary information, that action will be taken against him. If I decide as the person who is immediately injured that in all the circumstances I am not going to do that, may I not exercise my discretion? Has it not been done thousands and thousands of times?