Michael McDowell (Dublin South East, Progressive Democrats)

The provision reflects the current position in this area. The Garda Síochána as a matter of practice no longer institutes proceedings in its own name as common informers. Though that is the current position it used not to be so. The prosecutions commenced by it are generally founded on a direction or authorisation of the Director of Public Prosecutions. It is important to note that section 8 introduces new rules governing the prosecution of offences by the Garda Síochána. It will not be possible for it to decide to institute a prosecution, except in respect of the most basic offences, and then only where clear guidelines exist from the Director of Public Prosecutions. Accordingly, the proposed additional words in the amendment are not necessary. However, I will examine it again for Report Stage.

Senator Tuffy is concerned with whether a prosecution should be commenced in the first place. Logically that question precedes the institution of proceedings, for example, if the Director of Public Prosecutions made a general direction that prosecutions shall be brought in particular cases. However, the effect of the amendment could be that if they are not brought this could constitute a breach of Garda duty. Take the scenario where the Director of Public Prosecutions said that anyone found in particular circumstances doing a particular thing is to be prosecuted. If a garda then decides, on his or her initiative, not to prosecute in a particular case, it may be argued that the subsection has no application, as it merely says that in instituting or conducting a prosecution, the person should comply with the direction of the Director of Public Prosecutions. In such a case, the garda involved could say that he or she did not institute or conduct a prosecution and, therefore, subsection (3) has no effect. I will examine this amendment between now and Report Stage. I want to think through carefully whether gardaí would not be obliged to comply with a direction of the Director of Public Prosecutions in cases where they decided not to prosecute.