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Criminal Law

A crime is defined in law in Ireland as an act which may be punished by the State. The way in which a criminal offence is investigated and prosecuted depends on the type of crime involved. For these purposes criminal offences may be described in different ways such as:

  • Summary offences
  • Indictable offences
  • Minor offences
  • Serious offences
  • Arrestable offences
Summary and indictable offences

There are two ways criminal offences can be tried in Irish law:

  • In the lower court (District Court) before a judge without a jury
  • In the higher courts (Circuit Criminal Court, Central Criminal Court) before a judge and jury

Summary and indictable offences indicate the manner in which these offences are tried or dealt with in the courts. A summary offence is one which can only be dealt with by a judge sitting without a jury,that is the District Court. An indictable offence is one which may be or must be tried before a judge and jury.

All common-law offences are held to be indictable offences as the common law did not distinguish or differentiate between indictable and non-indictable offences. However, criminal statutes or criminal laws passed into law by the Oireachtas do make a distinction between types of crimes and therefore differentiates on how different crimes will be dealt with by the courts.

Examples of summary offences are:

  • Public Order Offence – Intoxication in a public place. The penalty stated for being found guilty of this offence is a fine of up to €127.00. No imprisonment is available to the judge.
  • Public Order Offence- Threatening abusive or insulting behaviour in a public place. The maximum penalty available to a judge where a person is found guilty of this offence is a fine of up to €630.00 or a term of imprisonment of up to three months or both a fine and a term of imprisonment.

Indictable offences are those which may or must be tried on indictment before a judge and jury, that is, in the Circuit Court or the Central Criminal Court. However, not all indictable offences are tried before a jury. Indictable offences can be divided into a number of categories.

A) Offences which must always be tried on indictment

There are a number of offences which must be tried before a judge and jury and these offences are listed in theCriminal Procedure Act 1967 and the Criminal Law (Rape) (Amendment) Act 1990. These include:

  • Offence under the Treason Act 1939
  • Murder, attempted murder, conspiracy to murder
  • Piracy
  • Rape
  • Aggravated sexual assault

In addition to the above there are a number of offences which do not include an option to be dealt with in the District Court (summary disposal). They must be dealt with on indictment. Examples of these are:

  • Section 4 of the Non Fatal Offences Against the Person Act 1997 – Assault causing serious harm. The penalty on conviction on indictment is a fine or imprisonment for life or both. The statute (or piece of law) does not allow for this offence to be dealt with summarily.
  • Section 14 of the Criminal Justice (Public Order) Act 1994 – Riot. Again the offence can only be dealt with on indictment.

B) Offences which may be tried summarily or by indictment at the request of the Director of Public Prosecutions, the judge or the accused

Section 2 of the Criminal Justice Act 1951 as amended by the Criminal Justice (Miscellaneous Provisions) Act 1997 provides that offences listed in the First Schedule of the 1951 Act can be dealt with in the District Court if three conditions are met:

  • The court is of the opinion that the facts proved or alleged amount to a minor offence which the court feels is fit to be tried summarily (in the District Court)
  • The accused person, when told by the court of his/her right to be tried by a judge and a jury, does not object to being tried in the District Court, and
  • The Director of Public Prosecutions (DPP) consents to the accused being tried summarily for such offence

In practice, the judge looks to see what the DPP has directed and then asks the prosecuting Garda for an outline of the facts of the case. The judge then decides whether or not he/she is willing to hear the case or send it forward to a higher court to be dealt with (indictment). If the judge decides to hear the case in the District Court the accused is given an opportunity to choose whether to be dealt with in the District Court or the Circuit Court. Normally, if an accused is given this choice he/she elects to be dealt with in the District Court as the maximum penalty available to the District Judge is less than that available in the Circuit Court.

Examples of some of the offences listed in the First Schedule are:

  • Perjury
  • Offences under the Criminal Law Act 1997
  • Offences under the Criminal Law (Rape) (Amendment) Act 1990
  • Offences under the Criminal Justice (Theft and Fraud Offences) Act 2001

C) Offences which may be tried either summarily or on indictment at the option of the Director of Public Prosecutions, subject to the agreement of the District Court judge

This procedure is the same as that outlined at (B) above but without the accused being given an option as to whether he/she wants the case to be dealt with in the District or Circuit Court. The offences in this category are created by statute and the statute or piece of law states the different punishments on summary conviction and on indictment.

How this process works in practice is that the DPP issues instructions as to whether the offence should be dealt with in the District or Circuit Court. If the DPP directs summary disposal (District Court), the District Court judge hears a summary of the facts from the prosecuting Garda and then decide if he/she will allow the case to be dealt with in his/her court. If the judge is not satisfied that the offence is a minor offence then he/she refuses jurisdiction (that is, refuses to deal with the case) and sends it forward to the Circuit Court to be dealt with on indictment.

Minor and non-minor offences

Article 38.2 of the Constitution of Ireland sets out that minor offences may be tried in courts of summary jurisdiction, that is, the District Court. There is no definition of what a minor offence is in the Constitution although they are most often set down by the actual law. The distinction between the constitutional concepts of minor and non-minor offences equates more or less with the statutory distinction drawn between summary and indictable offences.

The Supreme Court has however considered the issue of what constitutes a minor offence. The most important case in this area is a case called Melling v Ó Mathghamhna [1962] IR 1. In examining the criteria or rules when deciding whether an offence was minor the Supreme Court laid out the following test:

  • The severity or seriousness of the punishment
  • Moral guilt of the accused
  • The law in 1937 when the Constitution was adopted, and
  • Public opinion

Of these four tests, it is undoubtable that the most important one is the severity or seriousness of the sentence.

An offence is minor where the punishment is less than six months imprisonment (Conroy v Attorney General [1965] IR 411), whereas an offence is non-minor where the punishment is two years or more (Mallon v Minister for Agriculture, Food and Forestry [1996] 1 IR 517). It appears, however, that the courts have come to the belief an offence with a maximum prison sentence of twelve months constitutes a minor offence. It can be said as a result that any offence that carries a penalty of more than twelve months imprisonment is considered a non-minor offence.

Serious and non-serious offences

The Bail Act 1997 created a new distinction between serious and non-serious offences. The Act allows bail to be refused where an accused is charged with a serious offence and it can be established that the accused is likely to commit further serious offences if released on bail. The Bail Act 1997 defines a serious offence as an offence for which a person, if convicted, could be imprisoned for 5 years or more.

Arrestable and non-arrestable offences

Criminal Law Act 1997 abolished the distinction between a felony and misdemeanour and created the arrestable/non-arrestable distinction. The Act defines an arrestable offence as an offence for which a person could be punished by imprisonment for 5 years or more, similar to the definition of a serious offence mentioned above.

This distinction holds great importance for the Gardaí. Section 4 of the Criminal Law Act 1997 allows a Garda to arrest without warrant any person whom the Garda, with reasonable cause, believes to be guilty of committing or having committed an arrestable offence.

Any person arrested for such an arrestable offence (without a warrant) can be detained in a Garda station for a maximum period of 12 hours for questioning before being charged with an offence or being released. Also, if you remain silent when questioned by Gardaí in certain circumstances, inferences can be drawn from your silence in any proceedings against you for an arrestable offence.

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