Does the DPP have unlimited discretion on prosecution?

The_Minister

Just wondering about this.

In Family Law we looked very briefly at several cases where the husband was a practising homosexual, both prior to and after the marriage. One or two of these cases took place before homosexuality was decriminalised.

If a person is on record in a court of law, admitting to a crime (I know in this one it was an outdated one, but it was still technically a crime), then does the DPP not have any kind of obligation to prosecute?

Does the DPP have unlimited discretion in deciding who to prosecute?
It seems kind of unfair if the Oireachtas could introduce a crime, and then it would just be ignored.

dermot_sheehan

Some eastern european countries have "mandatory prosecution" where if the prosecutor comes into enough evidence to sustain a case they are mandated to bring a prosecution.

This results for example in european arrest warrants being issued to 24 european countries seeking the detention of a person for theft of a mobile phone, or in one case I know of theft of a chicken.

We have adopted the traditional common law approach where although the DPP can bring prosecutions, it has discretion whether to do so. It's part of the executive power of the state to decide whether or not it is in the public interest to bring a prosecution.

Courts have upheld this discretion refusing mandamus for the DPP to bring a prosecution and refusing to require the DPP to disclose why a prosecution was not brought in a given case.

murrayp4

If such an admission were made in court, it would be the function of the Gardaí to first investigate before a prosecution were to arise.
The DPP may decide not to prosecute when it would not be in the public interest to do so-e.g. where there would be a low probability of securing a conviction. Generally the DPP will approach the case asking the question as to whether there is sufficiently strong evidence to prosecute- if there is, it will go ahead.

cafecolour

Hmm. In said context, I'm not sure if being a homosexual was illegal, just committing specific homosexual acts. So they'd have to be able to say XXXXX committed the act of sodomy on this day in this place with this person.

For a present day analogy, if a parent admitted to using illegal drugs (say smoking marijuana) in the past - should the police then charge them? I'd think they'd have to have specific evidence - ie a time/place/amount - rather than a general admission.

Victor

In the situation you describe, how would the DPP find out, seeing as family law cases are held in camera.

Farcear

Victor wrote: »

In the situation you describe, how would the DPP find out, seeing as family law cases are held in camera.

Married to the DPP?

auerillo

cafecolour wrote: »

Hmm. In said context, I'm not sure if being a homosexual was illegal, just committing specific homosexual acts. So they'd have to be able to say XXXXX committed the act of sodomy on this day in this place with this person.

For a present day analogy, if a parent admitted to using illegal drugs (say smoking marijuana) in the past - should the police then charge them? I'd think they'd have to have specific evidence - ie a time/place/amount - rather than a general admission.

You are, of course, quite correct. there was no crime in being homesexual (ie being attracted to the same sex). The crime was in the act of sodomy. The fact that the husband might have admitted to being a practising homosexual is not enough evidence to convict him in a court of law, and the charges would have to be more specific. He may, for example, have considered himself to be a practising homosexual, but the nature of his homosexuality may have not included acts of buggery, but have included many other acts which he considered to be homosexual in nature, but which were not so defined in law.

It seems there is not enough evidence to secure a conviction in the case of an admission of being a practising homosexual in the past, even if there were the desire of the DPP to proceed with such a prosecution, which in itself seems unlikely.