There are few State bodies that wield as much power but are not required to explain their far-reaching decisions openly to the public or the people’s representatives in parliament. With great power comes limited accountability.
In the Irish criminal justice system, the Office of the Director of Public Prosecutions (ODPP) is the tip of the spear.
Weighing up the work of investigators from the Garda Siochána, the ODPP decides whether or not to prosecute an individual for an alleged crime. If it opts for prosecution, it decides what the charges should be and is responsible for prosecuting the case. But it has no legal obligation to explain its decisions.
From time to time, those decisions come under intense scrutiny.
“I’ve no concerns about the independence of the office but I have wondered about the quality of some decisions,” says one experienced prosecution lawyer.
One of the most talked-about decisions of recent years was the prosecution of Gerard “The Monk” Hutch for the murder of David Byrne, a member of the rival Kinahan crime gang, in a gun attack at the Regency Hotel in Dublin in February 2016. It was one of the first murders in the deadly Kinahan-Hutch gangland feud that ultimately claimed the lives of 18 people.
Hutch was acquitted after a 52-day trial.
The decision to prosecute Hutch was, in the view of the experienced lawyer, “absolutely incredible”.
[ Prosecution approach in Gerard Hutch Regency attack case ‘mystifies’ lawyersOpens in new window ]
Apart from secret recordings of a conversation between Hutch and his then friend Jonathan Dowdall days after the attack, “we had nothing”, he said. The decision to prosecute Hutch was made before Dowdall turned State witness, he noted.
“Dowdall did not add anything; he made everything worse in the end,” he said.
Dowdall was dismissed as an unreliable witness by the Special Criminal Court in its judgment acquitting Hutch of the murder charge.
The case is not the only decision of the ODPP to have raised eyebrows in recent years.
The same lawyer, who asked to remain anonymous, found it “surprising” that the ODPP decided not to prosecute Conor McGregor in response to Nikita Hand’s allegation that she was raped by the MMA fighter in Dublin’s Beacon Hotel in late 2018. She then took her own civil court action and in those proceedings last November, a High Court jury believed her and awarded her almost €250,000 in damages for assault. McGregor denied the allegations and has appealed the jury’s decision.
Many alleged rape cases are down to one person’s word against another but there was additional evidence in the McGregor case, including of injuries and torn clothing, said the lawyer.
“We’ve prosecuted much weaker cases,” he says, referring to cases of alleged rape/sexual assault.
The Office of the DPP has undergone significant changes in recent years. It has lost significant prosecutorial experience and institutional knowledge following several retirements and departures, and some “poor” decisions may be due to inexperience, said the lawyer. He did not regard outside influence as a factor.
The refusal to prosecute McGregor was upheld by a review carried out by the DPP herself, Catherine Pierse, who said the office’s view was there was no reasonable prospect of conviction for reasons including meeting the “beyond reasonable doubt” standard of proof in criminal cases and inconsistencies in Ms Hand’s account.
The office, which does not comment on individual cases, said staff who decide whether or not to prosecute are “very conscious” that every case they deal with “involves real people whose lives are profoundly impacted by the decisions we make”.
The decisions are subject to a “high level of accountability” in public trials where the evidence is “robustly tested”, it said.
“Our focus is the public interest, and the purpose of the work is to try and secure a just outcome,” the office said.
Senior counsel Séamus Clarke, an experienced prosecutor, said the ultimate decision on prosecutions was for the ODPP to make but the advice of a barrister is also sought on the strength or weakness of a case.
It can be difficult to predict purely from legal papers how some cases will turn out “in real life”, he said. Some that “look weak on paper” can be transformed by a strong witness performance, while others that look strong on paper can fall apart as the trial develops.
Another lawyer with significant prosecutorial experience, who spoke on condition of anonymity, said there could perhaps have been other charges in the Hutch case but that was a “strategic call”.
“If the DPP does not appear convinced of the strength of the case, they could be left open to a claim the DPP wants it both ways,” he said.
In the five decades since 1975, the Office of the DPP has undergone marked change.
Claire Loftus, Pierse’s immediate predecessor, is credited with a programme of modernisation of the office.
Pierse, who joined the office in 2018 as head of its prosecution support services division and was appointed director in late 2021, has continued that work.
She declined to be interviewed for this article but her office agreed to provide written responses to questions.
The “constant” over the past 50 years has been “change and growth”, it said. The office has grown from four staff members in 1975 to about 280 today, including about 180 solicitors. It engages services of barristers from a 200-member panel and paid €10.7 million to barristers in 2023 under the criminal legal aid scheme.
The introduction of an application and interview process for the panel, and expansion of its numbers, has gone some way to address suggestions of nepotism and favouritism.
“A few minor celebrities at the top get a lot of work but there are quite a few struggling,” a prosecuting solicitor said. “The work could be spread around more.”
The ODPP said the increasing complexity of crime, criminal law and investigations, along with a huge expansion in criminal court sittings with the appointment of extra judges, pose challenges.
Digital material now forms a huge part of all investigations and prosecutions. The office handles more international crime and digitally enabled crime and has had to develop specialist expertise to deal with environmental and health and safety cases.
The number of Garda investigative files received by the office has ranged from 14,000 to more than 17,000 over the past decade. Its latest annual report, for 2023, shows the office received 17,603 files, including 11,133 related to serious offences.
Files go to the office’s directing and specialist units division where a solicitor decides whether to direct charges. After charges are drafted, the file goes to the solicitors’ division and books of evidence are prepared.
Gardaí prosecute most of their own cases in the District Court but ODPP solicitors are involved in the more serious cases in the lowest court in the judicial system. Decisions concerning more serious or high-profile cases involve people at the highest level in the office, including the DPP herself.
In 2023, a prosecution was directed in 65 per cent of cases, with prosecution on indictment directed in one third for the most serious offences. Most decisions not to prosecute were due to insufficient evidence.
Senior counsel Anne-Marie Lawlor – who has prosecuted many high-profile cases, including that of Jozef Puska for the murder of teacher Ashling Murphy – said, after a decision is taken to prosecute, a barrister receives a brief from the DPP.
The quality of Garda investigative files varies but has improved a lot and most she deals with are “very impressive and thorough”.
In complex cases, the biggest problem is trying to ensure the prosecution’s disclosure obligations are met because the amount of material to be examined can be “truly staggering”, she said.
The engagement between the ODPP and barristers is “collaborative”; counsel’s role is to advise on proofs and the steps necessary, perhaps additional statements, to make a case ready for trial. The barrister’s advice, including their opinion on the strength or weakness of a case, is taken “very seriously” and “not second-guessed”, she said.
Phone and internet communications, and medical and counselling records, have all contributed to a huge workload regarding disclosure, says senior counsel Bernard Condon. Messages on TikTok, Snapchat and other social media sites can be “hugely significant” in sexual assault cases.
The ODPP’s engagement with victims of crime intensified after the coming into effect in 2015 of the EU Victims’ Rights Directive, which resulted in a sea change in establishing minimum standards on victims’ rights, support and protection.
Since November 2015, pretrial meetings are held by ODPP solicitors and barristers with victims and there are more supports – known as “special measures” – available for vulnerable victims, including intermediaries and screens, the ODPP said.
Before the EU directive, reasons for decisions not to prosecute were only provided in fatal cases, mostly road traffic incidents, and only from 2008.
Since late 2015, victims may seek reasons for decisions not to prosecute, and a review of refusals, in all cases.
In 2023, the ODPP granted 481 of 536 requests for reasons for decisions not to prosecute. Of 223 requests for review, refusals to prosecute were overturned in just 10. Reasons and reviews are sought mainly in relation to sexual offences and assaults, theft and fraud offences.
The ODPP said, when it writes to victims, “it is important for us to communicate that a decision not to prosecute does not mean that a victim is not believed.”
Most decisions not to prosecute are based on an assessment that the evidence is not sufficient and there is no reasonable prospect of a conviction, it said.
Letters to victims must balance the ODPP’s obligation “to provide information in a manner that does not re-traumatise the individual, while also protecting the privacy rights of third parties, and preserving the suspect’s presumption of innocence”.
The DPP’s power to appeal sentences as “unduly lenient” has been increasingly exercised, with most such appeals succeeding. Of 38 in 2023, the DPP won 32.
“The law on sentencing for many offences is so clear that an unduly lenient sentence will almost certainly be appealed and overturned,” one lawyer said.
“There may be a perception by some victims that a public campaign will help but every DPP is conscious of not being seen to bow to public opinion.”
About €58.55 million was spent on prosecution services in 2023 and the ODPP’s increased workload led to an €11 million increase in funding in Budget 2025.
“Over the years, the DPP’s office has expanded and developed, responding to an increasingly complex legal landscape, particularly with the rising number of sex cases,” said Tony Collier, of defence law firm Ferrys Solicitors LLP.
“This shift poses unique challenges for defence solicitors, who must navigate the growing volume and complexity of cases with limited resources, especially within the constraints of the criminal legal aid scheme.
“It highlights the need for adequate funding and support to ensure fairness and justice for all parties involved.”
Independence is the ‘most striking’ feature of the office – former DPP
The “most striking” feature of legislation setting up the new Office of the Director of Public Prosecutions 50 years ago was the degree of independence conferred and the “total absence of political or outside control”, said former DPP James Hamilton in a public speech more than a decade ago.
Until 1975, prosecutions were brought by the Attorney General. This included the 1970 Arms Trial that involved the AG bringing a prosecution against two ministerial colleagues, Charles Haughey and Neil Blaney, Hamilton noted.
While the AG behaved with “unquestioned propriety and impartiality”, it was “difficult to believe” that the experience would not have highlighted the possible difficulties in asking a political appointee of the taoiseach to act as prosecutor, he said during a 2008 address concerning accountability of the DPP.
The Act setting up the ODPP made it unlawful, with some exemptions, not including politicians, to communicate with the director or their officers for purposes of influencing their decisions.
Remarkably, in the 50-year history of the ODPP, there have been just four directors.
All four holders to date of the position repeatedly stressed the ODPP prosecutes, as Hamilton put it, “on behalf of the people as a whole, on behalf of society” – not on behalf of individual victims.
The concept of “accountability” was thus “not appropriate” when discussing the office’s relationship to victims, Hamilton said.
That should not prevent the interests of an individual victim being taken into account as long as that did not conflict with the interests of society as a whole or the rights of an accused, he said.
Eamonn Barnes, the first DPP, who served from 1975 until he retired in 1999, went to great lengths to establish the independence of the office and made it his main responsibility that unwarranted prosecutions were not brought.
“It takes more courage,” he claimed, “not to prosecute than to prosecute.”
One case in particular stands out as a high-profile example of the office’s independence.
English journalist Ian Bailey, who died last year, always denied the December 1996 murder in west Cork of French film producer Sophie Toscan du Plantier. After determining there was insufficient evidence to prosecute Bailey, the DPP steadfastly refused to change that decision, or extradite Bailey to France, despite intense pressure from the Garda, the French authorities and others.
In 2015 Barnes gave evidence in the case brought by journalist Ian Bailey over efforts by local gardaí in Cork to have him prosecuted for Toscan du Plantier’s murder. He testified he had resisted pressure to prosecute from gardaí that went “further than normal” because he believed the investigation was flawed and prejudiced.
Senior counsel Séamus Clarke and Bernard Condon, both with considerable prosecutorial experience, expressed confidence in the ODPP’s independence.
“I’ve seen a lot of controversial cases over the years and I’ve never regarded the office as susceptible to either public or political pressure,” said Clarke.
The ODPP, Condon said, has “managed, almost remarkably in Ireland, to not have scandals and to maintain a good degree of public support”.
Others share some reservations, including a senior counsel who wished to speak anonymously.
“I think some in the office are terrified of victims and avoid the hard decision not to prosecute weak cases; they just run them and leave it to a jury to decide. Modern juries are more invested in the system and more likely to convict. That could lead to miscarriages of justice down the line,” said the lawyer.
Asked whether it may be bowing to public and political pressure to prosecute weaker sexual offence cases, the ODPP said five editions of guidelines for prosecutors since 2001 are used to “ensure that decisions are made as objectively as possible, and to support both high standards of decision-making and consistency in standards of fairness”.
Fairness “does not equate with popularity” and the independence of the office is critical to the role of the prosecution service in upholding the rule of law, it said.
Court decisions and legislative developments, including changes concerning what evidence can be called and improved supports for vulnerable witnesses, have impacted on decisions to prosecute sexual offences, it added.
The understanding of society, and therefore juries, about “certain rape myths” has moved on and there is “a better appreciation now about the impact of trauma on a person’s actions and memory that may not have been there 50 years ago”, it said.
