The Criminal Process

The Constitution expressly refers to certain of the common law features of the criminal process.  Many other such features have been recognized by the Irish courts as implied in the Constitution over the last 50 years.

Express and implied Constitutional rights protect the integrity of the criminal process.  The common law criminal process involves a trial of the facts and circumstances alleged to constitute a crime before an independent judiciary.

Crimes are prosecuted by the Gardai or the Director of Public Prosecution.  There is an implicit requirement that persons not be found guilty unless it is proved beyond a reasonable doubt.

Trial Rights

There is generally a right to a jury trial in the case of a non-minor or serious offence. Article 38 requires that offence be tried in due course of law.

The Constitution requires that every criminal trial be conducted in accordance with the concept of justice.  The procedure shall be fair, and the person accused shall be afforded every opportunity to defend himself.  There is a presumption that the accused is innocent.  The accused must be proven guilty beyond a reasonable doubt.

It has been held that a fair trial requires criminal legal aid so that there is equality of arms.  There is a right to challenge the evidence against by accused by his lawyer in order to create a fair balance between the accused and the State.

Evidence that is admitted at a trial must accord with the rules of evidence, must not be unduly or unfairly prejudicial.


The European Convention on Human Rights principles overlap or are similar to those found or implied in the Irish Constitution. The principles of due process are strongly entrenched in the European Convention on Human Rights.  It provides that in the determination of a criminal charge, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The decision shall be pronounced publicly. The press and public may be excluded only in the interests of public order and national security in a democratic society.  The Convention requires that everyone charged with a criminal offence must be presumed innocent until proven guilty according to law.

Everybody charged with a criminal offence must be

  • informed promptly in a language which he understands in detail of the nature and cause of the accusation against him
  • have adequate time and facilities for the preparation of his defence.
  • defendants have personal to legal assistance of his choosing or if he has not sufficient means to pay for legal assistance, be given it free if the interests of justice so require
  • examine or have examined witnesses against him and obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him
  • have the free assistance of an interpreter if he cannot understand or speak the language.

Personal Rights

The State must vindicate the personal rights of the accused. A person charged with an offence must be adequately informed of the nature and substance of the accusation, have the matter tried in his presence by an impartial and independent court or arbitrator and be allowed to test by examining the evidence offered by or on behalf of the accuser.  He must be allowed to call evidence on his defence and be heard in argument and submission before judgment is given.

It is recognised that requirements of fairness and procedures must be relative to the circumstances.  The requirements in the summary trial will be less exacting the net in a trial on indictment. The District Court in the course of its summary jurisdiction generally has jurisdiction to imprison a person how has been convicted for up to one and in some circumstances, up to two years.  Imprisonment is more likely in a Circuit Court trial on indictment.

Additional Constitutional considerations arise where a person may be deprived of his liberty.  This may range from imprisonment to restrictions on movements.  See generally the sections on personal liberty and the Constitutional protection of the liberty of the persons.

Nature of Criminal Proceedings

It is a feature of criminal law that the offence is against the community as a whole.  The sanction is punitive and not merely one of restitution of loss to the State.  The offender may be required to pay a fine or be imprisoned.

Generally, there is a requirement for fault. This may involve intention, knowledge recklessness or gross negligence.  Some offences are strict offences, in that there is no requirement for intention or even knowledge. They tend to be less serious and arise in the context of regulatory legislation.

Criminal justice is to be administered by the courts on a criminal charge.  Imprisonment or detention by way of sanction at the behest of the executive or government is not permissible is not generally permissible under the Constitution.  There are, however, exceptions under emergency legislation.

Unlike other jurisdictions, Ireland has not created specific administrative offences. Offences constituted by breach of a regulatory scheme are in all respects treated as criminal offences subject essentially to the rigours of the requirements of due process of law.


Notoriously, the Offences against the State (Amendment) Act 1940 was found valid by the Supreme Court partly by reason of the general emergency and partly on grounds for interpretation of the law which are unlikely to hold good today.

Apart from the above, there are provisions in time of armed rebellion and war whereby the ordinary courts may be entirely suspended and military courts may operate in a manner that is unreviewable under the Constitution.  This possibility is relatively narrow and may operate only in times of war or armed rebellion as declared or acknowledged by the Oireachtas.

Due Process

Due process of law may be applicable in any circumstance where a person’s good name, property or liberty is in question.  It does not attract the full rigours of due processes required in a criminal trial.  However, the courts famously held  the Committee of Public Accounts must afford Constitutional fair procedures to persons appearing as witnesses, persons who are under investigation.

In a case where legislation purposed to confer on the Dail Public Accounts Committee, the power to certify a failure of cooperation by a witness to the High Court, requiring it that it be dealt in the same way as contempt of court, the Supreme Court found the procedure to be unconstitutional. In effect, an open-ended penalty could be applied for disobedience, on the certificate of an executive body.

It would be permissible for failure to cooperate to be an offence.  It would also likely to be permissible to have the matter referred to the High Court and be investigated.  The legislation purported to deprive the courts of its Constitutional function to determine the issue and simply required it to impose a sanction. It is arguable that the relevant provision could have been interpreted as allowing an enquiry by the High Court, but it was interpreted as foreclosing the issue.

Quasi-Criminal Proceedings

There are civil proceedings of a quasi-criminal nature.  In recent decades, the State has taken on powers of forfeiture and equivalent sanctions of an essentially civil nature, in relation to the proceeds of crime.  Various legislation allows for the forfeiture of things involved in the commission of an offence including revenue offences such as and in particular smuggling.

Challenges to revenue forfeitures have been held to be compatible with the Constitution as they are in the nature of civil forfeiture. In modern times confiscations permitted under the Criminal Justice Act, 1994 were found to be non-criminal in nature.  Confiscation arose separately from the criminal trial notwithstanding that it was part of the criminal proceedings.

In Murphy v. GM 2001, the constitutionality of the Criminal Assets Bureau confiscation provisions and procedures were challenged.  The Supreme Court refined its approach in the earlier revenue forfeiture cases and emphasised that criminal procedures in the constitutionally protected sense were those which historically had the trappings of criminal procedures.

The confiscation legislation lacked the trappings of a criminal justice procedure including arrest, bail, indictment, imprisonment for failure to pay or by way of sanction and procedures were not regarded as criminal in this context.

Punitive Damages

The civil courts may make orders for the payment of punitive damages.  Persons may be disqualified or restricted as directors based on fraudulent or reckless trading.  Although the criteria have elements of fault and have some criminal characteristics, there are some elements, quasi-criminal elements involved, because the procedures do not have the trapping of criminal proceedings, they are not non-criminal in nature.

The procedures attract civil Constitutional due process but do not attract protections such as a jury trial and other protections which are specific to criminal procedures.

Revenue Penalties

It would appear that administrative penalties, such as those imposed by the Revenue and the Companies Registration Offices for tax compliance failures and for late filings are not in the nature of a criminal sanction.  However, the courts have indicated that an excessive and disproportionate sanction to achieve an administrative objective may be in substance if not form, the imposition of a criminal penalty.

It was held that Revenue powers to select penalties and impose them on persons convicted of revenue offences were declared to be and found to be inconsistent with the separation of powers.

In the 1960s, the courts held that forfeiture proceedings on foot of a non-minor offence which because of the extent of the forfeiture which may be imposed, was greatly in excess of the District Court maximum fine, and well beyond the limits of what would be accepted as minor, were not criminal in nature.

Revenue legislation that allows for the civil recovery of penalties has been indicated by the Supreme Court as lacking the criteria for criminal proceedings.  It appears that the European Court of Human Rights has taken a different view of to the status and position of penalties for tax evasion and regards them as criminal, for the purpose of Article 6 of the convention.

Disciplinary Procedure

Professional disciplinary procedures have been held to be non-criminal in nature, notwithstanding that their consequences may be severe. A person may suffer sanction or lose his livelihood in consequence of a disciplinary finding.  Direct penalties may be imposed in the cases of a statutorily regulated profession.  It appears clear that the procedures are not regarded as criminal nature.

The Defence Acts authorises the trial of military personal by courts martial.  This is specifically authorized by the Constitution (Article 38.4).


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