Cavan): Two considerations prompted the introduction of this Bill. The first was to remove any possibility which might exist for any member of the public to think that political or other irrelevant considerations could influence the administration of the criminal law. The Government do not accept that any such considerations have, in practice, influenced the administration of the criminal law. Nevertheless, the Government regard it as a matter of importance that even the danger of any such suspicion being harboured by members of the public be eliminated, and that the administration of the criminal law be not alone impartial and free from outside influence but be manifestly so.
The second consideration arises from the vast increase in the burden placed on the Attorney General in discharging his primary function under Article 30 of the Constitution of advising the Government on matters of law and legal opinion. The area of governmental activity, both in domestic and international affairs, has widened very considerably in recent years and requires the speedy furnishing of legal advice on matters which are frequently of great complexity. One example alone, our accession to the EEC, has added a completely new dimension to the work of the Attorney General, as many of the governmental activities which resulted from that accession have a very substantial and important legal content. Other developments in recent years have added greatly to the burden of work placed upon the Attorney General in his advisory capacity, and it is no longer possible for an Attorney General to discharge as effectively as he would wish both his functions of legal adviser to the Government and public prosecutor. Accordingly, the second aim of the Bill is to relieve the Attorney General of his responsibilities in the latter area and to enable him to devote his attention to his primary function of legal adviser to the Government which, as Senators will appreciate, frequently requires the furnishing of advice as a matter of very considerable urgency.
The Bill accordingly proposes the creation of the Office of Director of Public Prosecutions and the conferring on the director of the powers, duties and functions at present exercised by the Attorney General in relation to criminal and certain other matters.
In achieving in the Bill the first aim set out above, the independence of the director in the exercise of his functions is obviously of the greatest importance. This is expressly provided for in subsection (5) of section 2. The same section provides for the establishment of a committee to select candidates for appointment to the office of director. The Government can only appoint a person selected or amongst those selected by this committee which will consist of the Chief Justice, the chairman of the General Council of the Bar of Ireland, the president of the Incorporated Law Society, the secretary to the Government and the senior legal assistant in the office of the Attorney General. Senators will, I think, agree that this is an eminently qualified committee to undertake the task of selecting candidates for the important office being created by this Bill.
The Government wish to give the committee as wide a range of choice as possible. Accordingly both practising barristers and practising solicitors of at least ten years' standing will be eligible for appointment as Director of Public Prosecutions. In addition, barristers and solicitors working in positions in the Civil Service for which practice as a barrister or solicitor was a necessary qualification will also be eligible.
Under subsection (4) of section 2, the director will be a civil servant in the Civil Service of the State. He can only be removed from office by the Government after they have considered a report from a committee consisting of the Chief Justice, a judge of the High Court nominated by the Chief Justice and the Attorney General. This provision which is contained in subsection (9) of section 2 will further strengthen the independence of the Director of Public Prosecutions. Furthermore, the director will not be accountable to, or in any way subject to, the direction of the Attorney General in relation to the performance of his functions. In neighbouring jurisdictions, the situation is different—the director is under the superintendence of or responsible to the Attorney General for the performance of his functions.
Subsection (6) of section 2 merely provides for periodic consultation between the Attorney General and the director. While it is anticipated that such consultation will occur on a regular basis it is clear that it will not in any way affect the complete independence of the director.
Section 3 provides that the director will perform all the functions at present capable of being performed by the Attorney General in relation to criminal matters and election and referendum petitions. The section also contains certain transitional arrangements to facilitate the director continuing proceedings which may have been initiated by the Attorney General in criminal matters, election petitions or referendum petitions. Under subsection 3, the Attorney General will retain his function in relation to any question as to the validity of any law having regard to the provisions of the Constitution. The Attorney General will therefore continue to be a necessary party in proceedings in which the constitutional validity of any Act of the Oireachtas may be in question.
The provisions of section 29 of the Courts of Justice Act, 1924, will apply in such a way that both the Attorney General and the director will have power to certify that a decision of the Court of Criminal Appeal involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
The provisions of section 34 of the Criminal Procedure Act, 1967, are being similarly treated by the Bill. Thus, in relation to courts, other than the Court of Criminal Appeal, both the Attorney General and the director will have power when, on a question of law a verdict in favour of an accused person is found by direction of the trial judge, to refer the question of law to the Supreme Court for determination, without prejudice to the verdict in avour of the accused.
Provision is made in subsection (5) of section 3 of the Bill whereby the consent of the Attorney General will be required for the continuation of a prosecution after a person is charged in respect of offences under the enactments referred to in the subsection. This is a very restricted provision referring to just three enactments. Because of their nature—involving as they do matters of national policy, security and the public interest—Senators will understand the reason why the Attorney General should continue to exercise some responsibility for them.
Provision is made in section 5 for the performance by the Attorney General in certain circumstances and in relation to specified kinds of criminal matters, of functions conferred by the Bill on the director. The Government are empowered under this provision to make an order specifying such matters when they are of the opinion that the interests of national security so require. Any such order that is made will be subject to review by the Oireachtas under section 12 of the Bill. Again I think it will be clear to Senators that national security must be the concern of the Government and that they must have the ultimate responsibility for it.
As the Government may have access to information not available to the director, and as they might arrive at an appreciation of security matters different from that of the director, it is clearly necessary that the Attorney General be empowered to act in the way envisaged. Once an order is made under the section, the director will no longer be empowered to act in relation to the functions specified in the order. The Government would hope that the exceptional circumstances in which they would be required to make such an order would not arise but, nevertheless, this enabling provision is necessary for the reasons I have stated. It is also to be noted that the operation of this section would not interfere in any way with the independence of the director, or the Attorney General, in the exercise by him of his function in criminal matters.
Section 6 contains another important plovision which will contribute to the impartial administration of the criminal raw. Here it is proposed to make it unlawful for anybody, other than those persons specifically mentioned in subsection 2, to communicate with those involved in the administration of the criminal law, including members of the Garda Síochána, so as to influence decisions to withdraw or not to initiate criminal proceedings.
The concern of the Government in incorporating such a provision was to bring home to the public at large, the reality of the situation regarding the practice of making representations in such cases. At this stage, it is not proposed to create a punishable offence for breaches of the provision. The Government are confident that the unlawfulness of such practice will become quickly known and accepted. Should this not happen, the Government would, of course, consider the introduction of amending legislation creating a punishable offence for breaches of the section.
However, I think it very unlikely that such a step will prove necessary. Senators will note that the section provides for certain exceptions. Thus, an accused person or persons who believe themselves likely to be defendants in criminal proceedings, as well as a person involved in a criminal case as a witness or as legal or medical adviser, or as a social worker or a member of the family of a person involved in the matter, will not be prohibited from making communications to the prosecuting authorities. It will be appreciated that information made available by such persons can be of considerable assistance in the administration of justice.
Section 7 of the Bill deals with the question of the distribution by the Attorney General and the director of State briefs to barristers. I do not propose to go into the allegations that have been made from time to time about the lack of impartiality exercised in this matter. Suffice it to say that such allegations will have no basis whatever when this Bill becomes law. It will remove any lack of confidence which may have existed in the administration of our legal system as a result of such suggestions.
The section provides that both the Attorney General and the director will distribute State briefs in a fair and equitable manner. There is provision for consultation with the Bar Council in relation to the administration and implementation of the section. In addition, there is provision in subsection (4) for the establishment of a complaints procedure to investigate allegations by barristers that the section is not being operated properly.
The Bill also provides, in section 4, that functions which the director or the Attorney General may perform by statute or otherwise can, by his direction, be performed on his behalf by a professional officer in his office in accordance with particular or general instructions. Section 8 makes provision for the proof in court of documents issued by the Attorney General or the director or by a professional officer of the Attorney General or of the director. These sections will assist in the more efficient administration of justice without in any way derogating from the rights of accused persons.
The remaining sections contain provisions ancillary to the main purposes of the Bill including the appointment of a temporary director or an acting director in the event of the office of director becoming vacant or in the event of the director becoming incapacitated due to illness.
I commend the Bill to the House.