‘Can-do creatures’

The EU now drives 80% of new domestic substantive and procedural criminal legislation, the National Prosecutors’ Conference has heard. Sorcha Corcoran goes on the run

When the first Director of Public Prosecutions Eamonn Barnes was appointed in 1975, there was very little thought given to the scope and resourcing of the new office – the overwhelming focus of civil servants, politicians, and drafters at the time was the issue of independence.

A departmental note retrieved from the National Archives noted that “it is not anticipated that the creation of the Director of Public Prosecutions’ Office will create a need for extra staff”.

The initial personnel consisted of just four dedicated lawyers and a small number of support staff.

Over the past 50 years, successive DPPs and governments have sought to address the resourcing needs of a modern, effective prosecution service. 

Today, the office has over 300 staff and works with 30 State solicitors and almost 200 barristers on its panels. In addition, there are around 14,000 members of An Garda Síochána prosecuting in the name of the DPP every day in the District Court.

Collective action

In her address at the 26th Annual National Prosecutors’ Conference on 15 November, DPP Catherine Pierse focused on this collective of public and private actors and how the relationships between them can be strengthened as the prosecution service grows and develops.

“Although relatively unusual by international standards, the reliance in Ireland on private partners to deliver a prosecution service is a system that has, by and large, served the Irish public well in my view,” she said. 

“Through our reliance on State solicitors, it has been possible to provide a local service in 30 locations around the country. By relying on the independent Bar, we are supporting a system where accused persons have access to the same expertise as the prosecution, and this supports a balance of perspectives.”

The additional budget allocation over the past few years has allowed the Office of the DPP to take on more staff. 

The appointment of extra State solicitors and counsel has brought new energy and ideals to the prosecution service, but it must be acknowledged that such changes bring challenges, she added. 

“When you’re in the middle of a period of change, it’s very human to focus on what has been lost – a sense of familiarity, of well-understood work practices and established working relationships where issues could be easily understood and resolved.”

Test of relationships

The continuously changing environment – marked by increasing levels of court activity and digital data, as well as various layers of domestic and EU legislation and case law – will continue to test these relationships.

But Pierse was sanguine about this. 

“Moving to an expanded service has required everyone to adapt. However, we have been negotiating and renegotiating these relationships for the past 50 years, and I am confident we will continue to successfully renegotiate them for the next 50,” she said. 

“Criminal lawyers by their very nature tend to be ‘can-do’ kinds of creatures, who are used to having curveballs thrown at them. While this agility can also be what psychologists refer to as an ‘overused strength’, it does put us in a strong place to navigate the coming years.”

The impact of EU legislation and case law on prosecutors’ workloads is one area that is definitely going to require careful navigation in the future.

A rough estimate of the Irish Statute Book suggests that around 80% of new domestic substantive and procedural criminal legislation now originates in the EU. 

Pierse highlighted the expansion of the Irish criminal justice system’s expertise to fully engage with emerging case law and legislation from the EU as one of its achievements. 

A whole lot busier

In a year during which Ireland will hold the presidency of the Council of the EU, those working in the prosecution service can expect things to get a whole lot busier.

Work is ongoing at a policy level here on instruments such as the e-Evidence Regulation and Directive and the Transfer of Proceedings Regulation, and there is a Programme of Government commitment to opt in to the European Public Prosecutions Office (EPPO).

“Once these new instruments are operationalised, they will become very relevant to each of you in your day-to-day work,” Pierse told the conference delegates.

“EU criminal law is no longer a specialist area and, as prosecutors, we need to think creatively about how to adapt our common-law system to the reality of our EU context.”

On the horizon

Peter Csonka, acting director of justice policy in the European Commission, provided this context and a sense of what’s on the horizon for Irish practitioners: “At the basis of all of this is the Lisbon Treaty, which provides Ireland with the right to opt in to measures that relate to the areas of freedom, security and justice [under Protocol 21],” he said.

“Subject to review, we understand that Ireland will be seeking to join future EU acts in these areas more systematically in the future.

"The review may also lead, potentially, to Ireland joining past legal instruments that were adopted in the past 20 years. In 2026, we expect this to include the European Investigation Order [EIO].” 

The EIO is a judicial decision issued in or validated by the judicial authority in one EU country to have investigative measures to gather or use evidence in criminal matters carried out in another EU country.

At present, it’s valid throughout the EU, but doesn’t apply in Ireland or Denmark. 

Cross-border

Csonka flagged that, just before the start of the Irish presidency in July, it looks like there will be a single package of reform proposals aimed at enhancing how Eurojust and Europol operate and interact with one another on cross-border investigations.

“In that package, it’s likely you will also have a proposal to review the General Data Protection Regulation. In essence, this is about reducing the data-collection rules governing all agencies involved in European investigations, so that all rules are common and applicable across the board.

“One of the things that will probably appear in this package is a small amendment to the EIO. We want to clarify what cross-border surveillance and the interception of telecommunications actually mean under this instrument.” 

At present, practitioners aren’t clear, for example, whether they can listen to conversations in a car with a tracking device travelling from country to country around Europe.

In addition, the current EIO doesn’t authorise hearing suspect or witness testimony via videoconference during trials. 

Anti-fraud architecture

The next big issue for the commission in 2026, Csonka said, will be a review of the EU’s anti-fraud architecture. 

Here, the legal basis is articles 3 to 5 of the Lisbon Treaty, which require that the EU institutions, agencies, bodies and member states protect the EU’s financial interest in an efficient and effective way.

“This has to be equivalent between member states, regardless of whether they belong to the EPPO. A white paper in July found loopholes in the protection system of the EU budget – which has been set at €2 trillion for the period 2028-2034.

"Therefore, it’s essential that we defend it from fraud, misuse or money-laundering,” said Csonka. 

“By the end of 2026, it’s likely that we’ll have a proposal on the table for better regulation criteria under the OLAF Regulation [the legal framework defining the European Anti-Fraud Offices] and the PIF Directive [which provides a unified legal framework for fighting financial crime targeting the EU].”

Violation Directive

A particularly topical reference in Csonka’s presentation was in relation to the Essential Violation Directive, a new EU law that harmonises the criminalisation of violations and circumvention of EU sanctions across member states.

“We now have 19 packages of EU restrictive measures, also called sanctions, in the EU, which essentially focus on the war of aggression by Russia against Ukraine.

"These contain measures such as asset freezes, a ban for certain people to travel, and a ban on certain transactions with Russian institutions,” he explained.

“The breach of these restrictive measures or sanctions may amount to a criminal offence under the Essential Violation Directive and may lead to the confiscation of frozen assets.

"Since it came into force in May 2025, we have seen a lot of circumvention and violation – some in the legal area, some in the customs area, and some in other areas, such as commercial activities. 

“We would like to make sure that these crimes are prosecuted when they are serious. For now, the commission has launched infringement procedures for those cases where member states have not properly transposed the directive.” 

The DPP highlighted the e-Evidence Regulation and Directive, coming into force in August, as a particularly novel EU initiative. This will allow orders for production of evidence to be sent directly to internet service providers across the EU.

All sorts of data

“We’re currently working on the IT system that will allow prosecutors and judges to use European preservation and production orders to obtain all sorts of data from service providers in a different country of the EU,” said Csonka.

“The private sector located in Ireland will be compelled to respond directly and within tight timeframes.

"If they provide services in the EU, they will have to set up an office in the EU and will have to pull the data from wherever in the world the order demands. 

“Some believe that the access point to the system in Ireland will be vulnerable, so security measures that surround that access point will be important.

"We are more and more driven by security interests in the EU. In essence, it has become such an important component of what we do that it influences the review and revision of our Instruments.”

The DPP mentioned at the conference that she was in a discussion several months ago about the planning that Ireland is doing in the lead-in to implementing the e-Evidence Regulation and Directive. 

“Aisling Kelly, who was formerly a prosecutor in the Office of the DPP, but now a general counsel in Microsoft, made the point that, whether we like it or not, we are all data lawyers now.

"Not only are we all data lawyers, but we’re now also EU criminal-law practitioners,” she concluded. 

Sorcha Corcoran is a freelance journalist.