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Code for Prosecutors
Including a Code of Ethics
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aa
1.2
2.1
2.2
2.3
3.1
3.2
3.3
4.4
4.2
4.3
44
4.5
46
47
48
4.9
4.10
4.41
4.12
Introduction
Code for Prosecutors
Purpose of this Code
Public Prosecution Service
Functions of the Public Prosecution Service
Aim of the Prosecution Service
Structure
Relationship with the Investigator
Role of the Investigator
Prosecutorial Advice
Referrals to the Police Ombudsman
Prosecution Decisions
The Test for Prosecution
The Evidential Test
The Public Interest Test
Review of Charges
No Prosecution
Diversionary Options
Choice of offences
Mode of Trial
Consents
Disclosure
Review of Prosecution Decisions
Giving of Reasons
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5. Conduct of Prosecutions Page 25
5.1 Role of Prosecutors in Court Page 25
5.2 Court Coverage Page 26
5.3 Accepting Guilty Pleas to Lesser Offences Page 26
5.4 Proceeds of Crime Page 27
5.5 Sentencing Page 28
5.6 Appeals Page 29
5.7 Unduly Lenient Sentences Page 30
6. Victims & Witnesses Page 32
6.1. Prosecution Decisions Page 32
6.2 Services Page 32
6.3 Special Measures Page 33
7. Code of Ethics Page 35
7.1 Purpose Page 35
7.2 Legal Obligations Page 35
7.3. Professional Conduct Page 36
7.4 — Private Conduct Page 39
7.5 Breaches of the Code of Ethics Page 39
1
Introduction
14
1.4.4
1.4.2
1.2
1.2.4
CODE FOR PROSECUTORS
This Code is issued pursuant to the statutory duty placed on the Public Prosecution
Service by section 37 of the Justice (Northern Ireland) Act 2002. The guidelines and
general principles detailed in this document apply from the date of publication of this
Code.
In this Code, the term “prosecutor” means:
Public Prosecutors employed by the Public Prosecution Service who
have been designated by the Director of Public Prosecutions for
Northern Ireland to act in that role; and
Barristers who are members of the Bar of Northern Ireland who have
been instructed by the Public Prosecution Service to act as prosecuting
counsel in any individual case.
Purpose of this Code
The purpose of this Code is to:
Give guidance on the general principles to be applied in determining, in
any case:
. whether criminal proceedings should be instituted or, where
criminal proceedings have been instituted, whether they should
be continued or discontinued, and
. what charges should be preferred.
Provide general guidelines for the conduct of criminal prosecutions; and
Define the standards of conduct and practice that the Public Prosecution
Service expects from prosecutors including those barristers and
solicitors to whom the Director assigns the institution or conduct of
criminal proceedings.
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To enable this Code to be understood in its proper context an overview of the role of
the Public Prosecution Service in the criminal justice system in Northern Ireland is
provided (see Chapter 2).
This Code is not intended to be a detailed manual of instructions for prosecutors or
a comprehensive guide to the policies and procedures of the Public Prosecution
Service. Further, this Code does not lay down any rule of law. While this Code
outlines the approach to decision taking that the Public Prosecution Service has
adopted, every case must be considered individually having regard to its own facts
and circumstances.
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Public Prosecution Service
241
2.1.1
2.1.2
2.1.3
2.1.4
FUNCTIONS OF THE PUBLIC PROSECUTION SERVICE
The Public Prosecution Service (herein after referred to as the ‘Prosecution Service’)
is established by the Justice (Northern Ireland) Act 2002. The Prosecution Service is
headed by the Director of Public Prosecutions for Northern Ireland. There is also a
Deputy Director of Public Prosecutions who has all the powers of the Director but
must exercise them subject to his direction and control. Both of these posts are
public appointments made by the Attorney General for Northern Ireland.
The Director must take over the conduct of all criminal proceedings which are
instituted in Northern Ireland on behalf of any police force (whether by a member of
that force or any other person).
In this context, “police force” means:
a) the Police Service of Northern Ireland or the Police Service of Northern
Ireland Reserve;
b) the Ministry of Defence Police;
c) any body of constables appointed under Article 19 of the Airports (Northern.
Ireland) Order 1994; or
d) any body of special constables appointed in Northern Ireland under section 79
of the Harbours, Docks, and Piers Clauses Act 1847 or section 57 of the Civil
Aviation Act 1982.
The Prosecution Service also makes prosecution decisions and conducts
prosecutions on behalf of a number of Government bodies, for example: the
Driver and Vehicle Testing Agency; the Department of Social Development and the
Environment and Heritage Service. The Police Ombudsman for Northern Ireland
also submits files to the Prosecution Service for a prosecution decision where an
investigation report indicates that a criminal offence may have been committed by a
member of a police force (as defined above).
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2.1.6
2.1.7
2.2
2.2.1
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Any person, including other investigatory organisations and individual members of the
public, other than the Director may:
a) institute criminal proceedings, or
b) conduct criminal proceedings to which the Director's duty to conduct
proceedings does not apply.
However, the Director may at any stage take over the conduct of any such criminal
proceedings other than those commenced by the Serious Fraud Office.
The functions of the Director shall be exercised by him independently of any
other person.
It is an offence, under the Justice (Northern Ireland) Act 2004, for a person to seek
to influence a prosecutor, with the intention of perverting the course of justice, in any
decision as to whether to institute or continue criminal proceedings.
AIM OF THE PROSECUTION SERVICE
The aim of the Prosecution Service is:
To provide the people of Northern Ireland with an independent fair and effective
prosecution service.
Independence
The Prosecution Service will be wholly independent from both police and government,
its decisions will be based on an impartial and professional assessment of the
available evidence and the public interest.
Fairness
All actions will be undertaken with complete impartiality, to the highest ethical and
professional standards. All persons, including those accused of offences, will be
treated fairly. All victims and witnesses will be treated with respect and sensitivity.
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2.3
2.3.1
2.3.2
2.3.3
2.3.4
2.3.5
Effectiveness
All prosecution decisions will be taken and every prosecution conducted in an
effective and efficient manner. We will provide value for money, while delivering a
timely and quality service.
STRUCTURE
In addition to the Director and the Deputy Director, the Prosecution Service is
comprised of Public Prosecutors and administrative staff.
Public Prosecutors are individual members of staff of the Prosecution Service who
have been designated by the Director to act on his behalf in the conduct of criminal
proceedings including exercising the right of audience in these criminal proceedings.
Public Prosecutors must be:
a) a member of the Bar of Northern
Ireland, or
b) a solicitor of the Supreme Court;
The Prosecution Service is a regionally
based organisation. There are to be four
regions each coterminous with one or more
court divisions. Each of the four regions
is headed by an Assistant Director who is accountable to the Director.
Each Assistant Director has overall responsibility for decisions as to prosecution and
for the conduct of all prosecutions in the region with the exception of those files that
are considered by prosecutors in Headquarters (for example, files requiring specialist
prosecutors such as complex fraud cases and complaint investigation files submitted
by the Police Ombudsman for Northern Ireland).
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Relationship with
the Investigator
3.1
3.4.1
3.1.3
3.1.4
3.1.5
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ROLE OF THE INVESTIGATOR
It is the responsibility of the investigator to investigate an allegation that a criminal
offence has been committed, to gather evidence in relation to that allegation and to
present that evidence to the prosecutor. The Police Service of Northern Ireland is
the main investigative body which the Prosecution Service deals with, although as
noted above other bodies may submit files to the Prosecution Service. Investigation
is not the responsibility of the Prosecution Service.
Investigators submit cases in two ways to the Prosecution Service - by charging a
person or by submitting a report on a person to the Prosecution Service.
The Prosecution Service assumes full responsibility for tracking the progress of the
case from the point of charge or receipt of a report from the investigator. On receipt
of a case from an investigator the Prosecution Service may request further
investigation into any particular matter where it considers that additional information
is required in order to take a fully informed prosecution decision.
In addition, the Prosecution Service may require the Police Service of Northern
Ireland to investigate any matter that comes to its attention where it believes that a
criminal offence may have been committed. Examples where such a request may be
made include:
° Matters brought directly to the attention of the Director alleging that a criminal
offence has taken place;
. Matters arising from a consideration of evidence by a Public Prosecutor which
indicates that other criminal offences may have occurred (in addition to those
reported by Police); and
. Matters brought to the attention of the Director by the Courts or the Coroner
which have arisen during the course of their proceedings.
The Prosecution Service is determined that all cases brought to its attention are
properly investigated. If the Prosecution Service is not satisfied that police have
properly investigated any case it may refer the matter to the Police Ombudsman.
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3.2
3.2.1
3.2.2
3.2.3
3.3
3.3.1
PROSECUTORIAL ADVICE
Prosecutorial advice is guidance provided by the Prosecution Service to investigators.
The provision of advice from the Prosecution Service to investigators (primarily the
Police Service of Northern Ireland) is limited to the prosecution of offences, such
as the quality and admissibility of evidence, the evidence needed to support the
prosecution of a person for a particular offence or whether the assets of a person
under investigation should be made subject of a High Court Restraint Order.
In accordance with the provisions of the Justice (Northern Ireland) Act 2002, advice
on any prosecutorial issue may be requested by the investigator at any stage of an
investigation.
Pre-Charge advice is a specific example of prosecutorial advice which occurs when
advice is sought by police about the specific charges, if any, which should be
preferred against any person suspected of committing a criminal offence.
REFERRALS TO THE POLICE OMBUDSMAN
The Prosecution Service will refer to the Police Ombudsman for Northern Ireland, for
investigation, any case, which is not already the subject of a complaint, where a
police officer:
. may have committed a criminal offence; or
. may, in the course of a criminal investigation, have behaved in a manner which
would justify disciplinary proceedings unless it appears to the Director that the
Ombudsman is already aware of the matter.
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Prosecution Decisions
4.1
4.14.4
4.1.2
4.1.3
4.2
4.2.1
4.2.2
4.2.3
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THE TEST FOR PROSECUTION
Prosecutions are initiated or continued by the Prosecution Service only where it is
satisfied that the Test for Prosecution is met. The Test for Prosecution is met if:
the evidence which can be adduced in court is sufficient to provide a
reasonable prospect of conviction — the Evidential Test; and
ii. prosecution is required in the public interest - the Public Interest Test.
Each aspect of the test must be separately considered and passed before a decision
to prosecute can be taken. The Evidential Test must be passed before the Public
Interest Test is considered. The Public Prosecutor must analyse and evaluate all of
the evidence and information submitted in a thorough and critical manner.
In applying the Test for Prosecution the Public Prosecutor must adhere to those
obligations set out in the Code of Ethics of the Prosecution Service for Northern
Ireland (see Section 7).
THE EVIDENTIAL TEST
Public Prosecutors determine whether there is sufficient evidence to provide a
reasonable prospect of conviction against each defendant on each charge.
A reasonable prospect of conviction exists if, in relation to an identifiable individual,
there is credible evidence which the prosecution can adduce before a court upon
which evidence an impartial jury (or other tribunal), properly directed in accordance
with the law, may reasonably be expected to find proved beyond reasonable doubt the
commission of a criminal offence by the individual who is prosecuted.
It is necessary that each element of this definition is fully examined when considering
the evidential test for each particular case (see below).
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Element Description
identifiable individual
credible evidence
There will often be cases where it is clear that an offence
has been committed but there is difficulty identifying who
has committed it. Prosecution can only take place where
the evidence sufficiently identifies a particular person
responsible. Where no such person can be identified,
there can be no prosecution.
This means evidence which is capable of belief. It may be
necessary to consult with a witness before coming to a
decision as to whether the evidence of that witness is
credible. It may be that a witness is likely to be so
discredited that no court could safely act on his / her
evidence. In such a case it may be concluded that there
is no reasonable prospect of obtaining a conviction. If,
however, it is judged that a court in all the circumstances
of the case could reasonably act on the evidence of a
witness, notwithstanding any particular difficulties, then
such evidence is credible and must be taken into account.
Public Prosecutors must therefore make an assessment
of the quality of the evidence. Where there are
substantial concerns as to the credibility of essential
evidence, criminal proceedings may not be proper as the
evidential test may not be capable of being met. There
will be many cases in which the evidence does not give
any cause for concern. But there will also be cases
in which the evidence may not be as cogent as it first
appears.
Prosecutors should not ignore evidence because they are
not sure that it can be used or is reliable. But they must.
look closely at it when deciding if there is a reasonable
prospect of conviction.
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Element scription
evidence which the
prosecution can adduce
an impartial jury
(or other tribunal)
may reasonably
be expected to find
Only evidence which is available and legally admissible
can be taken into account in reaching a prosecution
decision.
There are technical legal rules concerning whether or not
particular types and pieces of evidence are admissible
in court. For example, a court may refuse to admit
evidence that has been obtained improperly, irregularly or
unlawfully. If evidence is inadmissible then that evidence
cannot be weighed in determining whether there is a
reasonable prospect of a conviction.
Public Prosecutors must therefore seek to anticipate
whether it likely that evidence will be admitted or
excluded by the court. For example, is it likely that
the evidence will be excluded because of the way in
which it was gathered? If so, Public Prosecutors must
consider whether there is sufficient other evidence for a
reasonable prospect of conviction.
The test is not whether a particular jury or a particular
judge or magistrate will convict. If such a test was
adopted then prosecution might depend upon an
assessment of how different juries in different parts
of the country reacted or different judges reacted. This
would be wrong. The test must be how an impartial jury
or judge is likely to conclude.
It is impossible to know with absolute certainty whether
or not a conviction will be obtained in a particular case.
What is required by the evidential test is that there is a
reasonable prospect of a conviction on the evidence. The
weighing of evidence is not a mathematical science but
rather a matter of judgement for the prosecutor.
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4.3
4.3.1
4.3.2
4.3.3
The evidence available to the prosecutor must be
sufficient to reach the high standard required by the
beyond criminal courts.
reasonable doubt
It is necessary for the prosecution to establish its case
beyond reasonable doubt.
This requires that regard is had to the law in order
commission of to identify what offence or offences may have been
acriminal offence committed and to consider the evidence against each of
the ingredients which establish the particular offence.
THE PUBLIC INTEREST TEST
Once a Public Prosecutor is satisfied that there is sufficient evidence to provide
a reasonable prospect of conviction, the next consideration is whether the public
interest requires prosecution. It is not the rule that all offences for which there is
sufficient evidence must be prosecuted — prosecutors must exercise their discretion
as to whether a prosecution is required in the public interest.
In 19514 Sir Hartley Shawcross QC MP, the then Attorney General, made the following
statement to Parliament in relation to prosecutorial discretion.
‘It has never been the rule in this country...that suspected criminal offences must
automatically be subject of prosecution
Broadly, the presumption is that the public interest requires prosecution where there
has been a contravention of the criminal law. This presumption provides the starting
point for consideration of each individual case. In some instances the serious
nature of the case will make the presumption a very strong one. However, there are
circumstances in which, although the evidence is sufficient to provide a reasonable
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4.3.4
prospect of conviction, prosecution is not required in the public interest. For example,
Public Prosecutors should positively consider the appropriateness of a diversionary
option (particularly if the defendant is a youth).
The following section lists some Public Interest Considerations for prosecution which
may be relevant and require to be considered by a prosecutor when determining
where the public interest lies in any particular case. The following list is
illustrative only.
Public Interest Considerations for prosecution
xi.
xii.
xiii.
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the seriousness of the offence i.e. where a conviction is likely to result in a
significant penalty including any confiscation order or disqualification;
where the defendant was in a position of authority or trust and the offence is an
abuse of that position;
where the defendant was a ringleader or an organiser of the offence;
where the offence was premeditated;
where the offence was carried out by a group;
where the offence was carried out pursuant to a plan in pursuit of organised crime;
where the offence involved the possession or use of a firearm, imitation firearm or
other weapon such as a knife;
where the offence was motivated by hostility against a person because of their race,
ethnicity, sexual orientation, disability, religion, political beliefs, age or the like;
where the offence is prevalent;
where the offence has resulted in serious financial loss to an individual, corporate
person or society;
where the offence was committed against a person serving the public, for example
a Doctor, Nurse, member of the Ambulance Service, member of the Fire Service or a
member of Police Service;
where the victim of the offence, or their family, has been put in fear, or suffered
personal attack, damage or disturbance. The more vulnerable the victim the greater
the aggravation;
where there is a marked difference between the actual or mental ages of the
defendant and the victim and the defendant took advantage of this;
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xiv.
xv.
xvi.
xvii.
4.3.5
where there is any element of corruption;
where the defendant has previous convictions or cautions which are relevant;
where the defendant is alleged to have committed the offence whilst on bail, on
probation, or subject to a suspended sentence or an order binding the defendant
to keep the peace, or released on licence from a prison or a place of detention or
otherwise subject to a court order;
where there are grounds for believing that the offence is likely to be continued or
repeated, for example, where there is a history of recurring conduct.
The following section lists some Public Interest Considerations against prosecution
which may be relevant and required to be considered by a prosecutor when
determining where the public interest lies in any particular case. The following list is
illustrative only.
Public Interest Considerations against prosecution
vi.
vii.
where the court is likely to impose a very small or nominal penalty;
where the loss or harm can be described as minor and was the result of a single
incident, particularly if it was caused by an error of judgement or a genuine mistake;
where the offence is not of a serious nature and is unlikely to be repeated;
where there has been long passage of time between an offence taking place and the
likely date of trial unless:
. the offence is serious;
. delay has been caused in part by the defendant;
. the offence has only recently come to light; or
* the complexity of the offence has resulted in a lengthy investigation.
where a prosecution is likely to have a detrimental effect on the physical or mental
health of a victim or witness, particularly where they have been put in fear;
where the defendant is elderly or where the defendant is a child or a young person;
where the defendant was at the time of the offence or trial suffering from significant
mental or physical ill-health;
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viii.
4.3.6
4.3.7
44
444
4.4.2
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where the defendant has put right the loss or harm that was caused (although
defendants must not be able to avoid prosecution simply because they pay
compensation);
where the recovery of the proceeds of crime can more effectively be pursued by civil
action brought by the Serious Organised Crime Agency;
where details may be made public that could harm sources of information,
international relations or national security.
These considerations are not comprehensive or exhaustive — the public interest
considerations which may properly be taken into account when deciding whether the
public interest requires prosecution will vary from case to case. In each case where
the Evidential Test has been passed, the prosecutor will weigh the relevant public
interest factors that are applicable. The prosecutor will determine whether or not the
public interest requires prosecution.
While the prosecutor primarily will weigh the evidence and information reported in the
investigation file to assist his consideration of the public interest, other appropriate
sources of information may also be used including those agencies (for example,
Social Services) who are currently dealing with the defendant. The defendant, or
persons acting on behalf of the defendant, may also submit evidence and information
to the Prosecution Service for consideration.
REVIEW OF CHARGES
It is for the prosecutor to determine the charge that is presented to the court.
Where the police have charged a person then, prior to his first appearance at the
Magistrates’ Court, those charges will be reviewed by a prosecutor to determine
whether the charges preferred by the police should be presented to court or whether;
° any of the charges should be amended (i.e. where the details of the charge
are incorrect);
. other charges should be added (where additional charges are supported by
the evidence); or
. some or all charges should be withdrawn (where the existing charges are not
supported by the evidence).
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4.4.3
4.4.4
4.4.5
4.4.6
4.4.7
The prosecutor will consider these issues based on the evidence and information
presented in support of the police charge. If the police investigation is complete at
the time of charge then the prosecutor should apply the Test for Prosecution (see
Section 4.1 above). If the police investigation is on-going at the time of charge then
the prosecutor should apply the following test:
Whether on the evidence and information available before him at that time there is a
reasonable expectation that the Test for Prosecution will be met.
If all charges are withdrawn by the Public Prosecutor prior to a charged person's first
court appearance then that person need not appear in court. Their name and any
other information that may reasonably be considered to lead to their identity being
revealed will not be made public by the Prosecution Service.
Where a charged person has been detained in police custody prior to their first court
appearance, the Public Prosecutor must, in addition to considering the charges to
be presented to the court, also consider any continuing need to remand that person
in custody. The Public Prosecutor will only request that the court remands a charged
person in custody where it is determined (having given due consideration of the
nature and gravity of the alleged offence and any relevant criminal history of the
defendant) that there is a risk of:
. the charged person absconding;
* the charged person interfering with witnesses or the course of justice;
. the charged person committing further offences; or
. a threat to the preservation of public order (by the defendant or others).
Where it is the police view that a remand in custody should be sought then the
Public Prosecutor should consider whether there are any bail conditions which could
sufficiently counter the risks identified by them in relation to the grounds identified
above.
Where the Magistrates’ Court grants bail contrary to representations made to it by a
prosecutor, the Prosecution Service may appeal against the grant of bail. This appeal
will be heard by the High Court. On receipt from the prosecution of notice of its
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4.5
4.5.1
4.5.2
4.6
4.6.1
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intention to appeal a decision to grant bail, the Magistrates’ Court shall remand the
person concerned in custody.
NO PROSECUTION
If the Public Prosecutor decides that in any case being considered that there is
insufficient evidence or that it is not in the public interest to prosecute, a decision for
No Prosecution will be taken.
A decision of ‘No Prosecution’ does not preclude any further consideration of a case
by the Prosecution Service, if new and additional evidence becomes available or a
review of the original decision is required.
DIVERSIONARY OPTIONS
If the Test for Prosecution is met, the Public Prosecutor must decide the most
appropriate way of disposing of the case other than by prosecution at court. The
diversionary options available to the prosecutor are:
Informed Warning
The Public Prosecutor may require Police to administer an Informed Warning to the
defendant. An Informed Warning is a formal reprimand by Police and, although not a
conviction, is recorded on a person’s criminal record for a period of 12 months.
Caution
The Public Prosecutor may require Police to administer a Caution to the defendant.
A Caution is a formal reprimand by Police and, although not a conviction, is recorded
on a person’s criminal record for a period of 30 months for youths and 5 years for
adults.
Youth Conference
Where the defendant is a youth, the Public Prosecutor may consider a diversionary
youth conference as an alternative to prosecution in court. This type of restorative
conference may involve a number of parties including the defendant, the victim and
Police. A plan will be produced by this conference — this plan must be approved
by the Prosecutor. A Youth Conference is a formal process and, although not a
conviction, is recorded on a person’s criminal record for a period of 30 months.
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4.6.2
4.6.3
4.6.4
4.6.5
4.7
474
4.7.2
These diversionary options are only available to prosecutors if the defendant admits
to the prosecutor that he committed the offence and agrees to accept and participate
in the diversionary option. Admissions of guilt must be based on an informed
decision by the defendant.
If the Police are unable to administer an informed warning or a caution (e.g.
the defendant cannot be contacted or does not turn up for an appointment with
Police), then the case will be referred back to the Prosecution Service for further
consideration.
Similarly, if a Youth Conference plan cannot be agreed or is not approved by a Public
Prosecutor, the case will be referred back to the Prosecution Service which may
direct a prosecution. Even if a Public Prosecutor decides to prosecute a youth in
court, the Court may, however, consider that the option of Youth Conference is an
appropriate disposal of the case on conviction.
The Public Prosecutor will consider the appropriateness of the available disposal
options in regard to each defendant separately. Depending on the facts of each case,
it may be appropriate for different disposals to be applied to separate defendants
within the same case. For example, in a case with three defendants, one defendant
may be prosecuted, a second defendant who is a youth may take part in a Youth
Conference and it may be decided not to prosecute a third defendant.
CHOICE OF OFFENCES
The choice of offences for which a defendant is to be prosecuted is an important
function for the prosecutor.
In many cases the evidence will establish a number of possible offences. Care must
be taken to ensure that the offence or offences to be prosecuted adequately reflect
the seriousness of the criminal conduct for which there is evidence and which will
provide the court with an appropriate basis for sentence. The prosecutor will consider
selecting offences to be prosecuted which will enable the case to be presented in a
clear and simple way. Generally, the Prosecution Service will prosecute for the most
serious offences which are supported by the evidence.
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4.7.3
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4.8.1
4.8.2
4.9
4.9.1
4.9.2
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The prosecutor should not proceed with more offences to be prosecuted than are
necessary in order to encourage a defendant to plead guilty to a few. In the same
way, the prosecutor should not proceed with a more serious offence, which is not
supported by the evidence, so as to influence a defendant to plead guilty to a lesser
offence.
MODE OF TRIAL
As a general observation, summary offences relate to less serious criminal behaviour
and are tried in the Magistrates’ Court before a Resident Magistrate. Indictable
offences relate to more serious criminal behaviour and are tried at the Crown Court
before a judge and jury.
However, there are a number of offences which may be tried at either the
Magistrates’ or Crown Courts, for example: theft; assault occasioning actual
bodily harm, etc. For these offences, on taking a decision to prosecute, the Public
Prosecutor must also decide whether this prosecution should be tried in the
Magistrates’ Court or the Crown Court. In making this decision the prosecutor will
consider whether the Magistrates’ Court is the appropriate venue in that it has
sufficient sentencing powers in relation to the gravity of the offence.
CONSENTS
There are a number of offences for which a Public Prosecutor must seek the consent
of the Director or the Attorney General for Northern Ireland prior to continuing a
prosecution. The requirement for consents for specific offences is determined by
Parliament and is to ensure that cases of a particular nature are considered at the
appropriate level.
The consent of the Director is required, where it is decided to prosecute, for the
continuation of criminal proceedings for certain offences contrary to a range of
legislation including, for example:
a) Terrorism Act 2000 (certain offences);
b) Criminal Law Act (Northern Ireland) 1967;
c) Prison Act (Northern Ireland) 1953;
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4.9.3
4.9.4
d) Child Abduction (Northern Ireland) Order 1985; and
e) Punishment of Incest Act 1908.
There are a number of offences for which a Public Prosecutor must seek the consent
of the Attorney General prior to initiating a prosecution. These offences are primarily
concerned with national security issues and international relations. The Attorney
General's consent is required for the institution or conduct of criminal proceedings for
certain offences (under individual sections of the relevant legislation) including, for
example:
a) Official Secrets Acts 1911, 1989;
b) Marine, &c., Broadcasting (Offences) Act 1967;
c) Genocide Act 1969;
d) Biological Weapons Act 1974;
e) Criminal Jurisdiction Act 1975;
f) Internationally Protected Persons Act 1978;
g) Nuclear Material (Offences) Act 1983;
h) Criminal Justice Act 1988;
i) Iraq and Kuwait (United Nations Sanctions) Order 1990;
j) Chemical Weapons Act 1996;
k) Terrorism Act 2000 (certain offences); and
1) Anti-Terrorism, Crime and Security Act 2001.
In Northern Ireland, under the Justice and Security (Northern Ireland) Act 2007 the
Director of Public Prosecutions may issue a certificate that any trial on indictment
of the defendant (and of any person committed for trial with the defendant) is to be
conducted without a jury, if he suspects that any of the conditions set out in section
1 of the Act are met and he is satisfied that, in view of this, there is a risk that the
administration of justice might be impaired if the trial were to be conducted with a
jury. The relevant conditions include whether a person is a member of a proscribed
organisation or that the offence was committed by a proscribed organisation.
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4.10
4.10.1
4.10.2
4.10.3
4.10.4
4.10.5
4.10.6
Page 20
DISCLOSURE
Disclosure is the provision of prosecution material which is not used by the
Prosecution Service in the presentation of its case. The prosecutor's duty to disclose
unused material to the defence is set out in Part I of the Criminal Procedures and
Investigations Act 1996 (the Act) recently amended by the Criminal Justice Act 2003.
The Act also sets out the mechanisms by which disclosure should take place.
The scheme set out in the Act is designed to ensure that there is fair disclosure of
material which may be relevant to an investigation and which does not form part of
the prosecution case. Disclosure under the Act should assist the defendant in the
timely preparation and presentation of their case and assist the court to focus on all
the relevant issues in the trial. Disclosure which does not meet these objectives risks
preventing a fair trial.
The Attorney General's revised Guidelines on Disclosure, published in 2005, build
upon the existing law to ensure that the legislation is operated more effectively,
consistently and fairly. These guidelines, if properly applied, will contribute to
ensuring that the disclosure regime operates effectively, fairly and justly which is
vitally important to the integrity of the criminal justice system. The full guidelines are
available on the web site of the Legal Secretariat to the Law Officers www.Islo.gov.uk).
Prosecutors must do all that they can to facilitate proper disclosure, as part of their
general and personal professional responsibility to act fairly and impartially, in the
interests of justice and in accordance with the law. Prosecutors must also be alert
to the need to provide advice on an individual case basis to disclosure officers,
within those organisations that submit investigation files, on disclosure issues and
to advise on disclosure procedure generally to ensure that disclosure obligations are
met.
In deciding what material should be disclosed (at any stage of the proceedings)
prosecutors should resolve any doubt they may have in favour of disclosure. Relevant
material containing sensitive information will be placed before the court for issues of
disclosure to be determined.
If prosecutors conclude that a fair trial cannot take place because of an inability to
disclose which cannot be remedied, they must not continue with the case.
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4.11 REVIEW OF PROSECUTION DECISIONS
4.11.1 People should be able to rely on decisions taken by the Prosecution Service.
Normally, if the Prosecution Service tells a suspect or defendant that there will not
be a prosecution, or that the prosecution has been stopped, that is the end of the
matter and the case will not start again.
4.11.2 However, there may be reasons why the Prosecution Service will review a prosecution
decision, for example, where new evidence or information becomes available or a
specific request is made by a person, typically a victim, involved in the case. It is
impossible to be prescriptive of the cases in which a review will be undertaken and a
flexible approach is required.
4.11.3 Where a review is to be conducted the following approach is to be taken:
1. If no additional evidence or information is provided in or connected with the
request to review the original decision, the case will be considered by a Public
Prosecutor other than the Public Prosecutor who initially took the decision now
under review.
That Public Prosecutor conducting this review will consider the evidence and
information reported in the investigation file, together with the decision which
has been reached. There are two potential outcomes of such a review:
i. If the Public Prosecutor who considers these materials concludes that
the decision was within the range of decisions that a reasonable
prosecutor could take in the circumstances, then the decision stands
and the request for review dealt with on that basis.
As a general rule, a decision will fall within the range of decisions thata
reasonable prosecutor could take if there has been:
. No error of law;
° No failure to take into account relevant considerations;
. No evidence of taking into account irrelevant factors; and
. No indication of bad faith or other improper motive.
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If the Public Prosecutor who considers these materials concludes
that the original decision was not within the range of decisions that
could reasonably be taken in the circumstances, then that prosecutor
will apply the Test for Prosecution and reach a fresh decision in the
case. This may require further enquiries being made by police in
pursuance of section 35(5) of the Justice (Northern Ireland) Act
2002 or the obtaining and considering the advice of counsel or, in
appropriate cases, arranging to consult with witnesses.
If there is additional evidence and information provided in or connected with a
request to review a decision as to prosecution, the case will be reconsidered
by the Public Prosecutor who initially took the decision now under review.
That Public Prosecutor conducting this review will consider the evidence and
information reported in the original investigation file, the decision which was
reached and the additional evidence and information provided. There are two
potential outcomes of such a review.
The Public Prosecutor who considers these materials will apply the
Test for Prosecution and reach a fresh decision in the case. This
may require further enquiries being made by police in pursuance of
section 35(5) of the Justice (Northern Ireland) Act 2002 or the
obtaining and considering the advice of counsel or, in appropriate
cases, arranging to consult with witnesses.
If the Public Prosecutor applying the Test for Prosecution concludes
that there is no sufficient basis for changing the original decision
having regard to any new materials now available then the case will be
referred to another Public Prosecutor who will conduct a review of the
decision in accordance with paragraph 4.11.3.1.
If the Public Prosecutor who initially took the decision now under review is no
longer available the case will be considered by another Public Prosecutor who
will act in accordance with paragraphs 4.11.3.1 and 4.11.3.2 as is
appropriate.
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4.11.4
4.12
4.12.1
4.12.2
4.12.3
4.12.4
Where a review of the prosecution decision has already been carried out, by a Public
Prosecutor other than the Public Prosecutor who took the original decision, and no
new evidence or information is provided by a request to review a prosecution
decision then normally no further review will be commenced.
GIVING OF REASONS
The giving of reasons for not prosecuting is a complex issue. In many cases the
reason for not prosecuting is a technical one (for example, the unavailability of a
particular proof which is essential to establish the case). A balance needs to be
struck between the proper interest of victims and witnesses and other concerns,
including but not limited to, damage to the reputation or other injustice to an
individual, the danger of infringing upon the presumption of innocence or other human
rights and the risk of jeopardizing the safety of individuals.
The policy of the Prosecution Service is to give reasons for decisions for no
prosecution in all cases albeit in the most general terms. For example, in a case in
which there is a technical defect, such as the unavailability of evidence to prove a
essential aspect of the case, the Prosecution Service would normally indicate that it
has concluded that there was insufficient evidence to afford a reasonable prospect
of a conviction. In a case in which the evidence was sufficient but the decision was
taken not to prosecute, for example, given the age and infirmity of the prospective
defendant, the reason given would be that it was not in the public interest to
prosecute.
The propriety of applying this general policy is examined and reviewed in every case
where a request for the provision of detailed reasons is made. In such cases, the
Prosecution Service will consider what further information may reasonably be given
balanced against the factors which militate against providing detailed reasons
together with any other considerations which seem material to the particular facts
and circumstances of the case.
However, the Prosecution Service recognises that there may be cases arising in the
future, which it would expect to be exceptional in nature, where an expectation will
arise that a reasonable explanation will be given for not prosecuting where death
is, or may have been, occasioned by the conduct of agents of the State. Subject to
compelling grounds for not giving reasons, including duties under the Human Rights
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Act 1998, the Prosecution Service accepts that in such cases it will be in the public
interest to reassure a concerned public, including the families of victims, that the
rule of law has been respected by the provision of a reasonable explanation. The
Prosecution Service will reach a decision as to the provision of reasons, and their
extent, having weighed the applicability of public interest considerations material to
the particular facts and circumstances of each individual case.
4.13 Prosecutions initiated by a Private Prosecutor or a Prosecuting Authority established
by Act of Parliament
4.13.1 Prosecutions may be initiated and continued by a private prosecutor or a prosecuting
authority established by Act of Parliament.
4.13.2 The Prosecution Service may exercise its powers under sections 31(4) and 32(1) of
the Justice (Northern Ireland) Act 2002 to take over such prosecutions.
4.13.3 As a general rule the Prosecution Service will only take over a private prosecution or
a prosecution initiated by a prosecuting authority established by Act of Parliament
when there is a particular need to do so on behalf of the public. If that need does not
arise the prosecutor will be allowed to carry on with the case.
4.13.4 If the Prosecution Service takes over such a prosecution, the case must be reviewed
in accordance with the Code for Prosecutors and the Test for Prosecution applied.
Continuing proceedings
4.13.5 If both the evidential and public interest tests are satisfied, the Prosecution Service
will take over and continue the prosecution.
Discontinuing proceedings
4.13.6 As a general rule, where the Prosecution Service is satisfied that -
(a) there is clearly no case to answer; or
(b) the public interest factors tending against prosecution clearly outweigh those
factors tending in favour; or
(c) the prosecution is clearly likely to damage the interests of justice,
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5
Conduct of Prosecutions
5.1
5.4.4
5.1.2
5.1.3
5.1.4
5.1.5
ROLE OF PROSECUTORS IN COURT
The Prosecution Service is an independent prosecuting authority which is required to
have regard to the public interest. In doing so it will have regard to the particular
interests or concerns of any individual involved in the case.
The Prosecution Service serves the public in that it acts in the public interest.
However, while it does have responsibilities to victims (see Chapter 6), it is not the
legal representative for victims of crime nor does it act as their legal adviser.
Similarly the prosecutor does not represent the police.
Prosecutors must always act in the interests of justice. It is not the duty of
prosecutors to obtain a conviction by any means at their command. The
prosecutor's duty is to prosecute to the full extent of their abilities within the law
and rules of evidence and procedure.
The role of the prosecutor in court is to ensure that:
. he/she assists the court on all matters of law and practice applicable
to the case;
. only credible and relevant evidence is put before the Court;
. the defence case is properly and fairly challenged and that cross examination
of a defendant, or witnesses for the defence will be fairly conducted;
. duties of disclosure are fully complied with;
. relevant information on the effect of the offence on the victim is brought to the
attention of the court; and
. the principles of the European Convention on Human Rights are applied in
accordance with the Human Rights Act 1998 and relevant authorities.
A prosecutor must not advance any proposition of fact that is not an accurate and
fair interpretation of the evidence or knowingly advance any proposition of law that
does not accurately represent the law. If there is contrary authority to the
propositions of law being put to the court by the prosecutor, of which the prosecutor
is aware, that authority must be brought to the court’s attention.
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5.2
5.2.1
5.2.2
5.2.3
5.3
5.3.1
5.3.3
Page 26
The prosecutor will challenge allegations about victims and witnesses made by the
defence in absence of any supporting evidence.
COURT COVERAGE
Normally prosecutions in the Magistrates’ and Youth Courts, and appeals at the
County Court, are conducted by Public Prosecutors. Independent counsel prosecute
on behalf of the Prosecution Service in these courts as necessary (for example,
because of the unavailability of Public Prosecutors or the particular nature of a case).
Prosecutors in Magistrates’, Youth and County Courts are generally accompanied by
another member of staff from the Prosecution Service who provides administrative
support before, during and after court.
Generally, independent counsel represent the Prosecution Service at the Crown
Court, High Court and the Court of Appeal. These counsel are fully briefed by the
Prosecution Service prior to any court hearing and are normally accompanied in
court by a member of support staff from the Prosecution Service.
ACCEPTING GUILTY PLEAS TO LESSER OFFENCES
Decisions to prosecute, including the specific offences to be prosecuted, are taken
by the Prosecution Service in accordance with the Test for Prosecution to which all
Public Prosecutors must adhere. Such decisions are taken after a careful
assessment of all the evidence and information reported, including any obvious or
likely defence and the requirements of the public interest.
The general principle is that the decision to prosecute, and the offences to be
prosecuted, should not be altered, unless there is a proper reason, once they have
been taken and formally issued by the Prosecution Service.
The defence may on occasion approach the Prosecution Service with an offer to
plead guilty to only some of the charges that they are facing, or to a lesser charge or
charges, with the remaining charges not being proceeded with.
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5.3.4
5.3.5
5.3.6
5.3.7
5.4
5.4.1
5.4.2
While the prosecutor is under a duty to consider any such formal offer from the
defence, “plea bargaining” has no place in the practice or procedures of the
Prosecution Service. The term is frequently, and indeed generally, liable to be
understood as implying the seeking of some improper or at least questionable
arrangement between the prosecution and the defence. Both the term and what it
implies are therefore objectionable. There must be no such improper or
questionable arrangement and no practice is permissible which reasonably suggests
that there may be.
The acceptance by the Prosecution Service of such an offer from the defence must
be consistent with the evidence and information available at the time and meet the
requirements of justice. The following may be relevant factors:
a) whether the court can properly sentence the defendant for his or her
criminality;
b) any relevant information concerning the defendant's previous convictions and
likelihood of reoffending; and
c) the proper interests of victims and witnesses.
In no circumstances may the prosecution accept an offer to plead guilty to an
offence in respect of which the defendant otherwise asserts his or her innocence.
Counsel instructed to prosecute in accordance with decisions taken by the
Prosecution Service may not depart from such decisions without receiving specific
instructions to do so.
PROCEEDS OF CRIME
Following conviction, the Prosecution Service will apply, in appropriate cases, for a
confiscation order under the relevant Proceeds of Crime legislation.
Where it is necessary to prevent the dissipation of assets which may go to the
satisfaction of a confiscation order, the Prosecution Service will apply at an early
stage for a restraint order preventing the disposal of such assets.
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5.4.3
5.5
5.5.1
5.5.2
5.5.4
Page 28
Where a confiscation order is not satisfied voluntarily, the Prosecution Service will
apply for the appointment of a receiver to realise assets and apply the proceeds to
the payment of the confiscation order. Where appropriate the Prosecution Service
will apply for an order for compensation to be paid to a victim of crime out of monies
recovered as a result of a confiscation order.
SENTENCING
Sentencing is a matter for the court. Prosecutors must not approbate expressly or
impliedly the sentence to be imposed by the court.
Prosecutors should not attempt by advocacy to influence the court with regard to
sentence. If, however, a defendant is unrepresented it is proper to inform the court
of any mitigating circumstances about which counsel is instructed.
Prosecutors should be in a position to assist the court, if required, as to any
statutory provisions relevant to the offence of the defendant and to any relevant
guidelines as to sentence laid down by the Court of Appeal.
Prosecutors should bring such matters as are referred to above to the attention of
the court if in the opinion of the prosecutor the court has erred. The prosecutor's
attention is drawn to the decision in Attorney General's Reference No 8 of 2004
(Dawson) in which the Lord Chief Justice stated:
Where an indication is given by a trial judge as to the level of sentencing and that
indication is one which prosecuting counsel considers to be inappropriate, or would
have been considered to be inappropriate if he had applied his mind to it, he should
invite the attention of the court to any relevant authorities
Prosecutors are reminded of the provisions of section 36 of the Criminal Justice Act
1988 whereby the Attorney General may seek leave from the Court of Appeal to
review a sentence as being unduly lenient. In every case where a prosecutor
considers that the sentence imposed is or may be unduly lenient the prosecutor
should report the case immediately to the Public Prosecution Service.
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5.5.6
5.5.7
5.5.8
5.5.9
5.5.10
5.5.14
5.6
5.6.1
The attention of prosecutors is specifically drawn to the duties of the prosecution in
respect of Article 14(c) of the Criminal Justice (Northern Ireland) Order 1994, namely
the power of the court to make a compensation order. As the injured party has no
locus to make an application in respect of compensation, the prosecutor is asked
to consider whether the facts and circumstances warrant an application to the court
to make a compensation order. If the prosecutor considers that such an application
should be made, the relevant proofs including any additional evidence that may be
necessary to prove the injured party’s personal injury, loss or damage should be
sought.
The attention of prosecutors is specifically drawn to the rules of practice governing,
discussions in Chambers as propounded by the Court of Appeal in the reference to
Her Majesty's Attorney General for Northern Ireland (No. 1 of 2005) Bernard Philip
Mary Rooney and others for the guidance of sentences in courts at all levels.
The attention of prosecutors is specifically drawn to the Attorney General’s
guidelines on the role of prosecuting counsel in discussions in chambers on pleas
and sentencing.
It is also the prosecutor's duty to deal with any questions of compensation,
forfeiture, confiscation or restitution which may arise.
Where there is a significant difference between the factual basis on which a
defendant pleads guilty and the case contended for by the prosecution, the
prosecution should seek to establish the facts upon which the court should base its
sentence.
Prosecutors should challenge any assertion made by the defence in mitigation that
is inaccurate, misleading or derogatory. If the defence persist in the assertion, and
it appears relevant to the sentence, the court should be invited to hear evidence to
determine the facts and sentence accordingly.
APPEALS
Appeals from the Crown Court will be heard in the Court of Appeal.
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5.6.3
5.6.4
5.6.5
5.7
5.7.1
Page 30
The Attorney General may appeal to the Court of Appeal on a point of law following
acquittal on indictment in the Crown Court. However the defendant is, and remains
acquitted irrespective of the outcome of such an appeal. In every case when a
prosecutor considers that there is or may be a point of law which the Attorney
General may wish to refer to the Court of Appeal, the prosecutor should report the
case immediately to the Prosecution Service.
The Prosecution Service may appeal to the Court of Appeal any decision of the
Crown Court to make a confiscation order or any decision of the Crown Court not to
make a confiscation order. Also the Prosecution Service may appeal certain rulings
by the Crown Court in relation to a trial on indictment, for example, a ruling that
there is no case for a defendant to answer.
The Prosecution Service may appeal on a point of law any decision of the
Magistrates’ Court by requesting that the case is ‘stated’ by the Magistrate. Such
appeals from the Magistrates’ Court will be heard in the Court of Appeal.
The Prosecution Service may seek leave to appeal any decision of the Court of
Appeal to the House of Lords if it is certified that a point of law of general public
importance exists.
UNDULY LENIENT SENTENCES
The Criminal Justice Act 1988 gives the Attorney General the power to apply for
leave to refer a sentence he considers unduly lenient to the Court of Appeal. This
Act restricts the use of that power to certain of the more serious offences tried and
sentenced in the Crown Court. The Attorney General may not appeal any sentence
imposed at the Magistrates’ Court on the grounds that it was unduly lenient.
The Court of Appeal has held that an unduly lenient sentence is one that falls
outside the range of sentence that a judge, taking into consideration all relevant
factors, and having regard to sentencing guidance, could reasonably consider
appropriate. Sentencing is not a straightforward matter. Every case is different and
the sentence appropriate to any case must depend on the particular circumstances
of that case. A judge, in sentencing a defendant, takes into account any guidance
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given by the Court of Appeal, identifies any features that aggravate the offence and
any features that mitigate the offence. The judge then decides on a sentence that
reflects the need to punish, to deter others, to protect the public and to rehabilitate
the defendant.
5.7.3 The Prosecution Service may bring a case to the attention of the Attorney General in
order that he may consider if whether to appeal on the grounds that the sentence
imposed was unduly lenient.
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6
Victims & Witnesses
6.1
6.1.4
6.2
6.2.4
6.2.2
6.2.3
Page 32
PROSECUTION DECISIONS
Although the evidence in respect of a particular criminal offence may be sufficient to
provide a reasonable prospect of conviction, the Prosecution Service has also to
decide whether prosecution is required in the public interest. In this regard, the
proper interests of the victim or witness will be taken into account along with other
relevant factors to determine whether or not prosecution is required.
SERVICES
The Prosecution Service is committed to delivering a comprehensive set of services
to victims and witness, from the point that the Prosecution Service assumes
responsibility for a case until the case is disposed of. The range of services to be
provided to victims and witnesses include:
Information Provision
Delivery of information at key milestones in the progress of a case, for example,
prosecutorial disposal decision, notification of any major changes to the case, et
Court Attendance
Arranging and providing information in support of attendance of the victims and
witnesses at court, for example ensuring witness availability; and
Support Services
Providing specialist support services to victims and witnesses as the case
progresses through partnerships with Victim Support and the NSPCC, for example to
those persons who are vulnerable, intimidated or have particular requirements.
The prosecutor will fully carry out his responsibility under Article 14(c) of the
Criminal Justice (Northern Ireland) Order 1994 to make representations regarding
compensation for the victim where it is appropriate. These representations will
relate to both of the consideration of the appropriateness of compensation but also
the quantum if the court decides to award compensation.
These services are detailed in the Prosecution Service's Victims and Witness Policy
document.
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6.2.4
6.2.5
6.2.6
6.3
6.3.1
6.3.2
6.3.3
The Prosecution Service will work in partnership with other criminal justice
organisations (for example Police Service, Court Service, etc.) and voluntary sector
bodies to ensure that these services are delivered in a timely manner to an
acceptable level of quality.
The Prosecution Service will also provide appropriate mechanisms and processes to
allow victims and witnesses to make complaints about the level and quality of
services provided by the Prosecution Service.
For complaints not relating to the exercise of prosecutorial discretion, there will be
an independent external body to which the complaint may direct the complaint if they
are not satisfied by the response they have received from the Prosecution Service.
SPECIAL MEASURES
Prosecutors must apply for special measures to assist vulnerable or intimidated
witnesses to give evidence as required.
The Criminal Evidence Order (Northern Ireland) 1999 provides the following range of
special measures:
. Screens in court;
. Evidence by live video link;
. Evidence in private (clearing the court in sexual cases or where there
has been or may be intimidation);
. Removal of wigs and gowns;
. Video recorded evidence in chief; and
. Aids to communication (available to vulnerable witnesses only).
Intermediaries and communication aids are available only for ‘vulnerable’ witnesses.
Other services such as video recorded cross-examination or re-examination and
examination of witness through an intermediary may be introduced in the future.
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6.3.4
6.3.5
6.3.6
6.3.7
6.3.8
Page 34
The court will make a ‘special measures’ direction on application of a party or of its
own motion where it considers that a measure or measures would be likely to
improve the quality of evidence given by the witness.
The Criminal Evidence Order (Northern Ireland) 1999 makes special provisions for
child witnesses. It creates three categories of child witness:
a) Children giving evidence in a sexual offence case;
b) Children giving evidence in a case involving an offence of violence, abduction
or neglect; and
c) Children giving evidence in all other cases.
Children in categories a) and b) are ‘in need of special protection’ and benefit from
strong presumptions about how they will give evidence. Children ‘in need of special
protection’ will have a video recorded statement admitted as their evidence in chief
(if one exists).
Children in category c) - all other children - will have a video recorded statement
admitted as their evidence in chief (if there is one) and will give further evidence or
be cross-examined via a live TV link.
Further information concerning the services and standards of service that victims
and witnesses will receive from the Prosecution Service are set out in the policy
document, Victims and Witnesses Policy.
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7
Code of Ethics
71
7.144
7.1.2
7.1.3
7.1.4
7.2
7.2.1
PURPOSE
This Code of Ethics lays down the standards of conduct and practice for prosecutors
working for, or on behalf of, the Prosecution Service for Northern Ireland.
The development of this Code of Ethics has been guided by:
. Guidelines for the role of prosecutors — Adopted by the Eighth United
Nations Congress on the Prevention of Crime and the Treatment
of Offenders held at Havana between 27th August and 7th
September 1990;
. Standards of Professional Responsibility and Statement of the Essential
Duties and Rights of Prosecutors (1999) - International
Association of Prosecutors; and
. Council of Europe Recommendation 19 (2000) on the Role of the Public
Prosecution in the Criminal Justice System.
The Northern Ireland Civil Service (NICS) Code of Ethics sets out the framework
within which all Northern Ireland Civil Servants work and the values which they are
expected to uphold, in accordance with procedures laid down in the Northern Ireland
Civil Service Pay and Conditions of Service. Public Prosecutors, as members of the
Northern Ireland Civil Service, are obliged to act in accordance with the NICS Code of
Ethics.
Further, Public Prosecutors must either be a member of the Bar of Northern Ireland or
a solicitor of the Supreme Court of Northern Ireland. As such each Public Prosecutor
is obliged to act in accordance with the standards set by their respective professional
body.
LEGAL OBLIGATIONS
In considering cases and conducting prosecutions, prosecutors, must at all times,
act in accordance with the law of Northern Ireland and any legal guidance provided by
the Attorney General for Northern Ireland and by the Director of Public Prosecutions
for Northern Ireland.
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7.3
7.3.1
7.3.2
7.3.3
7.3.4
Page 36
In addition, the prosecutor must, at all times, act in a way which is compatible with
the Human Rights Act 1998, the European Convention on Human Rights and all other
relevant international conventions and declarations.
PROFESSIONAL CONDUCT
Prosecutors must, at all times, act in accordance with the Code as issued by the
Director of Public Prosecutions and the policies and procedures of the Prosecution
Service.
Prosecutors must not participate in, or seek to influence, the taking of a prosecution
decision in regard to any case where:
a) they have, or are likely to have, a financial or personal interest; or
b) where they may be called as a witness; or
c) where it could reasonably be considered that they have a potential conflict of
interest.
Prosecutors must report to the appropriate authorities any attempt to influence their
decision, with the intention of perverting the course of justice, which is an offence
under the Justice (Northern Ireland) Act 2004.
Prosecutors must, at all times, adhere to the highest professional standards.
Prosecutors shall:
a) at all times maintain the honour and dignity of their profession;
b) always conduct themselves professionally, in accordance with the law and the
rules and ethics of their profession;
c) at all times exercise the highest standards of integrity and care;
d) keep themselves well-informed and abreast of relevant legal developments;
e) strive to be, and to be seen to be, consistent, independent, fair and impartial
f) have regard to a defendant's right to a fair trial and in particular ensure that
evidence favourable to the defendant is disclosed in accordance with the law
and the requirements of a fair trial;
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7.3.5
7.3.6
7.3.7
g) always serve and protect the public interest;
h) respect, protect and uphold the universal concept of human dignity and human
rights.
In order to ensure the fairness and effectiveness of prosecutions, prosecutors shall:
a) fully discharge their duties to the courts, the legal profession, defence
solicitors and counsel, the police and any government agencies, whether
nationally or internationally;
b) render mutual legal assistance to the Prosecution Services and colleagues of
other jurisdictions, in accordance with law and in a spirit of mutual co
operation; and
c) fulfil their responsibilities to victims and witnesses.
The use of prosecutorial discretion should be exercised independently and be free
from any interference. Prosecutors will maintain absolute fairness and impartiality at
all times. Prosecutors shall perform their duties without fear, favour or prejudice. In
particular they shall:
a) carry out their functions impartially;
b) remain unaffected by individual or sectional interests and public or media
pressures and shall have regard only to the public interest.
c) act independently and with objectivity;
d) have regard to all relevant circumstances, irrespective of whether they are to
the advantage or disadvantage of the defendant;
e) in accordance with the requirements of a fair trial, seek to ensure that all
necessary and reasonable enquiries are made and the result disclosed in
accordance with law and practice, whether that points towards the guilt or the
innocence of the defendant; and
f) assist the court to reach a just verdict.
Prosecutors shall perform their duties fairly, consistently and expeditiously. They shall
perform an active role in criminal proceedings as follows:
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a)
b)
c)
q)
e)
8)
h)
when giving advice, they will remain impartial and objective;
in the institution and continuance of criminal proceedings, they will proceed
only when a case passes the Test for Prosecutorial (as set out in this Code).
prosecutors will not initiate or continue with a prosecution in circumstances
where the Test for Prosecution is not met.
throughout the course of the proceedings, the case will be fairly and firmly
prosecuted and not beyond what is indicated by the evidence;
preserve professional confidentiality;
in accordance with the requirements of a fair trial, consider the views,
legitimate interests, privacy and concerns of victims and witnesses, when their
personal interests are, or might be, affected and seek to ensure that victims
and witnesses are informed of their rights; and similarly seek to ensure that
any aggrieved party is informed of the right of recourse to some higher
authority or court, where that is available;
have regard to the rights of the defendant;
disclose to the defendant relevant evidence and material in accordance with
the law and practice and the requirements of a fair trial;
examine evidence to ascertain if it has been lawfully obtained;
decline to use evidence reasonably believed to have been obtained through
recourse to unlawful methods which constitute a grave violation of the
suspect's human rights and particularly methods which constitute inhuman or
degrading treatment;
seek to ensure that appropriate action is taken against those responsible for
using such methods;
refer all instances where a police officer may have committed a criminal
offence or acted in a manner which would justify disciplinary proceedings to
the Police Ombudsman for Northern Ireland;
in accordance with the law, the requirements of a fair trial and the guidance
contained within this Code, give due consideration to disposals other than
prosecution including, for example, by the administration of a caution or in
cases involving youth defendants the opportunity to take part in a Youth
Conference.
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7.4
7.4.1
7.4.2
7.4.3
7.44
7.4.5
7.4.6
7.5
7.5.1
7.5.2
PRIVATE CONDUCT
Prosecutors must not compromise the actual, or the reasonably perceived, integrity,
impartiality, fairness or independence of the Prosecution Service by activities in their
private life.
Prosecutors should respect and obey the law at all times.
Prosecutors may not belong to any organisation, which by way of its policies or
actions, is clearly committed to acting contrary to the law or to the interests of the
criminal justice system.
Prosecutors must not take part in any political or other public activity which is
contrary to the law or which compromises, or might be seen to compromise, their
integrity, impartiality, fairness or independence. They should conduct themselves in
such a way as to retain public confidence in their professional conduct.
Prosecutors must not attempt to frustrate or influence government policy, decisions
or activities by unauthorised, improper or premature disclosure of any information
that has been acquired through their employment in the Prosecution Service.
Prosecutors must not use any information to which they have had access during the
course of their employment to further their own private interests or those of others.
They must not accept any gifts, prizes, benefits, inducements or hospitality from a
third party which may be seen to compromise their integrity, impartiality, fairness or
independence.
BREACHES OF THE CODE OF ETHICS
Prosecutors must bring to the attention of the Director of Public Prosecutions for
Northern Ireland any breach of the Code of Ethics.
Prosecutors must bring to the attention of the Director of Public Prosecutions for
Northern Ireland any criminal prosecutions initiated against them, the imposition of
any fixed penalty including penalty points, the administration of an informed warning,
or caution, or the like.
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7.5.3
7.5.4
7.5.5
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Public Prosecutors will be given comprehensive training in the application of the
principles, guidelines and standards outlined in this Code for Prosecutors (including
the Code of Ethics). Any queries in relation to the Code or the requirement for further
guidance, including consideration of any areas of potential conflict, should be brought
immediately to the prosecutor's line manager or, if more appropriate, directly to the
Director of Public Prosecutions for Northern Ireland.
Failure by Public Prosecutors to adhere to the Northern Ireland Civil Service Code of
Ethics or to this Code may result in disciplinary proceedings.
Failure by independent counsel instructed by the Prosecution Service to adhere to
this Code of Ethics may result in the Prosecution Service not availing of the services
of that particular counsel in the future. Where appropriate any breaches of this Code
of Ethics by independent counsel will be referred to the appropriate professional body
for its consideration. Any queries by independent counsel in relation to this Code or
the requirement for further guidance in respect of areas of potential conflict should
be brought to the attention of the Director of Public Prosecutions for Northern Ireland.
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