Criminal Liability

Crimes

In its broader sense, criminal law covers what are traditionally called crimes as well as many thousands of regulatory offences that are designed to uphold and enforce certain administrative and regulatory objectives.  Throughout this guide are numerous references to such offences.

The traditional and well-known crimes typically involve a mental element of deliberate or reckless behaviour.  In contrast, many regulatory offences are offences of so-called “strict liability”.  This means that once the prohibited act takes place, the offence has been committed.  There is generally no need to prove a mental element.

It may, in some cases, it may be necessary to show deliberate behaviour or negligence.  If it can be shown that the action is wholly involuntary, there may be a defence.

Regulatory and Minor Offences

In the case of regulatory offences, it is often provided that a company may be liable.  It is often also provided,  that directors, secretaries, officers and managers of the company who knowingly participate in or consent to the behaviour concerned, are also personally liable for the offence.

Despite the distinction between crimes in the traditional sense and non-fault based regulatory offences, the same broad principles of criminal law, criminal procedure and criminal evidence rules apply.  Every element of the offence must be proved beyond a reasonable doubt.  Constitutional justice and fair procedures apply to all offence cases. irrespective of whether they might be categorised as crimes or regulatory offences.

Minor offences are heard by the District Court pursuant to its summary criminal jurisdiction and the Circuit Court in the case of prosecutions on indictment. Most regulatory offences may be tried as minor offences only.

Some very serious regulatory offences may be subject to charge on indictment. Many may be subject to charge on indictment or by summary prosecution, where the seriousness of the offence in the particular circumstances will determine which mode of trial applies.

Non Sentance Santions

There has been an increasing trend towards the use of non-criminal sanction penalties. Administrative fines may be raised and paid as an alternative to prosecution.

There are cases where forfeiture and deprivations of a licence may take place without a criminal trial.  For example, a licence to conduct a particular business may be removed for failure to comply with a certain standard.  This may have a very serious consequence for the individual, but it does not follow that the matter, for example, a disciplinary matter must be heard in a criminal court.

Minor offences such as those for road traffic offences, customs offences, breaches of trademarks and copyrights may involve the forfeiture of goods or of a licence.  This would not in itself make the proceedings,  a serious criminal offence if the offence was otherwise minor. This is so, notwithstanding that it may have profound consequences for a particular accused person than say a fine that would exceed that which could be given summarily.

Legislation distinguishes between arrestable and non-arrestable offences.  Arrestable offences are those with a potential sentence of imprisonment of at least 5 years.  See the separate chapters on criminal procedure.

Punishment

The principal function of criminal law is to punish and deter.  Imprisonment removes the capacity to commit further offences, at least during incarceration.  In theory, punishment carries an element of retribution or making good for the offence.  Deterrence is a significant objective.   Rehabilitation of offenders is a further objective.

It is unconstitutional to provide for the death penalty.  Physical corporal punishment is also prohibited by legislation.  The more severe form of punishment is imprisonment.  Imprisonment may be suspended so that if the person is convicted of a further offence or other breaches of condition, the original term of imprisonment applies.

Most criminal sanctions comprise fines or financial penalties.  The maximum fine is prescribed by statute.  The Fines Act 2010 has sought to rationalise the positions.

Forfeiture

Since the Criminal Assets Bureau and anti-terrorism legislation of the mid-1990s, forfeiture has become increasingly important.  It is a powerful weapon for State in the fight against organised criminality.

The Criminal Assets Bureau seeks to identify assets that have been purchased from the proceeds of criminal activity.  There are special procedures, which are civil rather than criminal in nature,  whereby assets can be forfeited unless they are proved to have a lawful origin.  The courts have decided that such proceedings are not criminal and do not require trial by jury et cetera.

Community service orders can be levied in lieu of imprisonment.  The order can be for between 40 and 240 hours of unpaid work under the supervision of a probation officer.

Probation

Probation has existed as an option for over 100 years.  One form of probation involves the court deciding that the offence has been committed but because of its opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, dismissing the charge with or without conditions as to a recognisance, without recording a conviction.

Where a recognisance is required, the defendant enters a bond to be of good behaviour for up to 3 years.  If the terms of this bond is breached, the person must appear and may be sentenced for the original offence. The District Court has general powers to bind a defendant over to keep the peace.  This is equivalent to a conditional discharge.

Compensation

Compensation orders may be imposed as an alternative to or in addition to other sanctions.

The Criminal Injuries Compensation Tribunal provides compensation by the State for persons who suffer injuries as a result of criminal activity.  In the mid-1980s, it was restricted from making awards for pain and suffering.  Awards are now referable only to quantifiable losses equivalent to special damages in a claim for civil compensation.

Formerly local authorities were obliged to compensate property owners for malicious injuries.  This is property damage arising from criminal activities.  This provision was severely limited in the early 1980s. to malicious damage arising out of riots.

There is power for courts to order convicted persons to pay compensation to the victim of crime.  This is a factor in sentencing but should not preclude or be an alternative to other appropriate punishment.

Sentencing and Courts

Sentencing is reserved for the court.  The courts are obliged to impose penalties that are appropriate and proportionate to the crime.  It should take account of the particular circumstances of the offence and that of the accused.

There are Constitutional issues in respect of punishment and the trial of offences.  It is fundamental that a person may only be punished if he has been lawfully convicted of a criminal offence.

It is not permissible to impose a sentence of exceptional length for the purpose of protecting society against the person.  There have been cases where courts have imposed exceptionally long sentences because the person was assumed to pose a particular danger.  However, this while a relevant factor, preventative justice is not permitted under the Constitution.

The legislation provides for mandatory maximum sentences.  Occasionally, mandatory sentences are provided for in legislation.  For example, life imprisonment for murder.  There is also mandatory sentencing for certain drugs and firearms offences.

Factors in Sentencing

The court may take account of offences admitted and in this event, a prosecution may not be brought for those offences.  A higher sentence may be imposed, but it may not be higher than the maximum for the offence for which the defendant has been convicted.

It is possible for the DPP to appeal against an unduly lenient sentence.  Criminal cases from the Circuit Court and Central Criminal Court may be appealed to the Court of Appeal on the merits or on the issue of sentence.

Judges have wide discretion in relation to sentencing.  It is a strong principle that the individual sentence is a matter for the judge. Sentences may be imposed concurrently or consecutively.

Generally, a guilty plea is a factor that should mitigate the sentence.  It should not be an overwhelming factor, but some account or discount will generally be allowed.  It saves the cost of proceedings and in particular, may save the victim of crime, additional trauma.

The circumstances of the offence may aggravate the position. Past offences, in particular, repeat offences are relevant.  Although prior offences will not be considered in considering whether the defendant is guilty, they are considered in the context of sentencing.

Generally after conviction for n offence, whether a crime in the traditional sense or a regulatory offence, a plea in mitigation may be made by the defendant’s legal representative.  This will be done prior to sentencing.  The plea in mitigation will attempt to describe circumstances that may go in mitigation in the assessment of the sentence.

Constitutional Principles

There are certain fundamental principles of criminal law and procedure reflected in the constitution.  A person may be tried and punished, only for a clear offence known to law. .  An offence must be clear and capable of objective ascertainment. The courts have struck down common law crimes, or offences that were vague and capable of arbitrary subjective assessment

The Constitution provides that crimes cannot be created retrospectively.  If the behaviour was lawful at the time it cannot be declared criminal after the event.

It is well-established that ignorance of the law is no defence.  This is despite the fact that in some instances the criminal law is very complex.  Unlike other countries, there is no criminal code which is available to the public.  It is intended in due course to provide a consolidated criminal code.

Degree of Proof

It is a fundamental principle in all criminal cases and offences that the onus is on the prosecution to prove every element of the offence beyond a reasonable doubt.  It is a matter for the defendant to prove defences. A defendant is entitled to be acquitted if he can raise a reasonable doubt. A defence needs to only be proved on the balance of probabilities.

In many regulatory type offences, the burden of proof is reversed by statute.  Where, for example, certain facts are proved, it is then a matter for the defendant to prove otherwise.  This has been held to be compatible with the Constitution.