A theory of justice
Director of Public Prosecutions Catherine Pierse believes that fairness – not conviction count – is paramount. Mary Hallissey assesses the evidence
“It’s not about convictions – it’s about fairness,” says current Director of Public Prosecutions Catherine Pierse, as her office marks its 50th year of playing a profound role in Ireland’s democracy and the administration of justice.
“The mission of this office has always been to provide a fair, independent, and effective prosecution service on behalf of the people of Ireland – not on behalf of any individual person.
“When you think about the life-changing consequences of a decision to prosecute, and the risks to the rule of law if prosecutions are not pursued fairly and conscientiously, it’s obvious that the number-one priority for a DPP is ensuring high professional standards,” she says.
In practice, this means a strong focus on staff training and professional development to deal with the volume and complexity of the work, and on systems and processes to keep pace with court activity.
“We are independent of any noise in the system, from social media, any sectional interests, and obviously pressure from Government.
“We have to make sure that we are actually dealing effectively with the 17,000 cases a year, and that we’re moving things forwards and making decisions effectively,” the DPP says.
The original position
From a legal family in North Kerry, Catherine Pierse has had a varied career. She studied law with German at UCC before doing a master’s in human rights at Queen’s University Belfast, and travelled and worked abroad with NGOs before starting a general-practice apprenticeship in Tralee with her cousin Risteárd Pierse as her master.
“Those years gave me a great grounding,” Pierse says. “Working in Pierse McCarthy Lucey Solicitors exposed me to a wide range of legal work and helped me develop a strong foundation.”
She then moved to Dublin to work in criminal defence with Kelleher O’Doherty Solicitors.
Her interest in criminal law was ignited in her teenage years, reading about cases such as the Birmingham Six and Guildford Four.
“I always wanted to work in criminal law,” she says. “It was a formative time. If anyone has a chance to do a stint in the District Court as part of their training, I think it’s really valuable. I learned a lot about human nature. It was a really eye-opening time for me.”
After five years, Catherine moved into public-law roles, including GSOC, the Central Bank during the post-crash reform period, and as head of legal and governance at the Policing Authority, guiding the establishment of processes to oversee garda performance and senior garda appointments.
“That really exposed me to other areas, such as employment law and HR, performance management, and communications,” she says.
The difference principle
After joining the DPP as head of the Prosecution Support Services Division, Pierse was appointed as director in November 2021 for a ten-year term.
Now four years in, she says: “I’m enjoying it, it’s the kind of job that’s a privilege to be in,” she says.
The office has grown significantly since its founding in 1975. From just four lawyers, it now comprises almost 300 staff and handles approximately 17,000 prosecution files a year.
Roughly a third are not prosecuted, a third will be prosecuted in the Circuit or Central Criminal Courts, while another third go to the District Courts for prosecution.
Of the non-prosecutions, about 500 come back asking for reasons, the DPP explains, and a disproportionately high number will concern sexual offences.
“About 73% of our cases are dealt with within four weeks,” she noted, “though more complex cases can naturally take longer – for example, if we need to get more information from the gardaí.”
The office’s 50 years has seen the emergence of drug-related and cyber-enabled crime, and organised crime gangs operating transnationally. International judicial cooperation is also an increasing feature of serious cases. New investigative and forensic techniques are also emerging.
“The landscape is evolving all the time,” the director commented, and much criminal legislation now originates at EU level.
Although a lot has changed, much has also stayed the same. The DPP’s annual budget stands at around €70 million. Much of the work is supported by private practitioners and An Garda Síochána: 30 State solicitors nationwide are private practitioners contracted by the DPP through a public competition.
Likewise, a panel of 200 barristers is used for Circuit and Central Criminal Court work. Gardaí handle summary prosecutions in the District Court.
Ireland’s prosecution model remains unusual by international standards, the DPP comments: “The Irish Prosecution Service is quite small at its core,” Pierse says, “and that’s because we are relying on all these other people to work with us to deliver an essential service.
“It’s a real advantage to have this State solicitor model, which pre-dates 1922, because we can provide a service more locally.”
Justice as fairness
The office was created in 1975 to remove prosecution decisions from political hands.
“It’s always about bringing things back to the evidence, blocking out external influences, and bringing attention back to the case,” the DPP says.
This is even more important in an era of press releases from activist law firms and viral social-media commentary.
“I have a fairly positive impression overall of juries,” she comments – although also noting that there has been very little research done in this jurisdiction on how juries conduct their deliberations.
“From what I observe, juries generally take their role seriously. They are somewhat in a cocoon during a trial.”
The goal of fairness, and not prosecution at all costs, and the weightiness of their decision-making is repeatedly emphasised to jurors, she says.
The public in general will understand why the DPP doesn’t publish reasons for a decision not to prosecute, although the injured party may request detailed reasons and is free to share that correspondence, Pierse says.
She quotes former deputy director Barry Donoghue – the worst thing you can have in a democracy is a popular DPP. This is why the office is forensic about how it approaches cases, Pierse says.
A decision to prosecute is a weighty matter and can turn an accused’s life upside down, probably forever, affecting family and social life and job prospects.
On the other hand, where a decision is made not to prosecute, this can be very distressing for victims, who sometimes perceive that this means that they have not been believed.
“It’s a decision that has a huge impact on everyone involved – the accused, the victim, witnesses, and all of their families. Also, there is the public confidence in the rule of law. Because of that significance, it’s important that there are checks and balances.
“That decision to prosecute is tested in court, so there is an accountability mechanism that is probably unparalleled across public decision-making.”
The DPP does not detect any public perception that her office is subject to undue influence. “The whole point of setting up a DPP Office was to take it away from the political system,” she says.
The DPP is critical of the downgrading by the Law Society’s Law School of criminal law, which was dropped as a full compulsory module seven years ago.
“I really feel quite strongly about this. It was a really disappointing decision, and it’s damaging to the administration of justice if we have a generation of lawyers that are coming on without any kind of basic understanding of criminal law.”
(The Law School has, in fact, reintroduced a compulsory criminal law course on this year’s Professional Practice Course.)
Reflective equilibrium
One of the biggest shifts in recent years, Pierse notes, is the enhanced focus on victims, particularly since the Victims of Crime Act 2017.
“We have increased supports for vulnerable victims since 2017, in particular, and that means we can now actually prosecute cases that we couldn’t previously.”
The DPP also points to a growing awareness of trauma across the justice system: “There is an awareness now that the system has to adapt to vulnerable victims, not vice versa.”
Since the Victims of Crime Act, complainants are now referred to as ‘victims’ rather than ‘alleged victims’, the DPP says.
“Most people working in the system understand that if you’re talking about a ‘victim’ in the context of a non-prosecution decision, it doesn’t mean that the person who is accused is anything other than presumed innocent.”
Letters about a decision not to prosecute can be very difficult to write, the DPP says, because they must contain meaningful information without adding to trauma.
“It’s really important to preserve the presumed innocence of the suspect, and not to damage the potential for a future investigation. They are very complex letters to write, and we have a team of skilled lawyers tasked with drafting them.”
The priority problem
Prosecution services internationally are exploring what role AI can safely play. There’s a huge volume of digital evidence being gathered now, and data is moving in huge quantities between systems that were never designed for it.
Data moves in chunks through a system not yet equipped with modern cloud-based infrastructure. It’s inefficient and slow, but moves are underway to shift to cloud-based data storage.
Pierse is adamant that AI can never replace human judgement, but it can flag key terms, or summarise information.
The impact of digital overload is most evident in the legal principle of disclosure, which has evolved through case law and practice but not in legislation, the DPP explains.
Recent Supreme Court decisions have clarified that victims’ privacy rights must be protected – particularly in areas such as counselling records – while still upholding the accused’s right to a fair trial.
Pierse believes the current model places an impossible burden on prosecutors to identify what might be relevant in a vast volume of data, without any engagement from the defence. It is, equally, a hugely difficult task for defence practitioners to interrogate the volume of data.
“My view is that real consideration should be given to creating a statutory obligation on the defence to engage with the prosecution in relation to disclosure at an early course, including, potentially, defence statements,” she says.
Thought experiment
The DPP also calls for legislation that would require defence statements or early engagement, similar to that in other jurisdictions.
Minimising unnecessary delays should be the main goal. She refers to by UCD academic Marie Keenan, commissioned by the Department of Justice, which described a ‘culture of last-minute-ism’, where vital preparation only begins in the final days before a court date.
The DPP also sees potential in the current legal-aid review to restructure payments in a way that encourages earlier engagement.
“We need to see trial dates for what they are – an extremely expensive and valuable resource – and trial dates should only be set down where there is a genuine intention to contest a case.”
While better collaboration across the justice system could help bring about efficiencies, Pierse says there is also a need for increased investment in the criminal justice system.
She welcomes the recent appointments increasing the number of Central Criminal Court judges from five to 12 and says that there is also a clear need for more judicial appointments to deal with criminal cases in the Circuit and District Courts.
There also needs to be an appreciation that, when there is a decision to appoint more judges, all of the infrastructure and personnel to support more court sittings also needs to be resourced – courtrooms, prosecutors, probation officers, and criminal-defence lawyers.
Pierse would ultimately like to see a truly national prosecution service where there is consistency of prosecution service, including in the District Court.
The veil of ignorance
For the majority of the public, their only interaction with the criminal-justice system will be in the context of a District Court case. Ensuring a high standard of summary prosecutions is key to ensuring public confidence in the rule of law.
“One of the advantages of having a prosecution service where a professional lawyer is assessing the evidence is that you have some distance between the investigator and the prosecution.
“If you’re very invested in an investigation, there is a risk of investigative bias. So a prosecution service offers a safeguard, to take a file and look at it in the cold light of day and assess whether there is enough evidence.”
Approximately 200,000 summonses and charges are taken by An Garda Síochána in the District Court every year.
For the moment, what is being looked at is a process whereby the Office of the DPP has a greater role in supporting the gardaí in bringing prosecutions and in monitoring that work.
In time, more of this work could be prosecuted directly by the DPP. In fact, this is what happens already in Dublin, where the office prosecutes certain cases in the District Court, such as contested road-traffic and domestic-violence cases.
“All of us who work in the criminal-justice system understand what a precious thing it is to live in a society where there is widespread support for the rule of law, and we must continue to earn and maintain this public confidence,” the DPP concludes.
Mary Hallissey is a journalist at the Law Society Gazette.