The Probation of Offenders Act allows the Court to dispose of an offence that is subject to punishment without recording a conviction. Under the Act, the Judge may dismiss the charge or discharge the offender conditionally.
The purpose of the legislation is to try to avoid the recording of a conviction and allow a person who would otherwise be convicted, a chance to reform himself and be rehabilitated etc. Although there is no conviction, evidence of the application of the Probation Act may be offered as character evidence, where a person is convicted of a later offence.
The Probation Act may not be used in relation to drunk driving offences. It is also prohibited in the range of cases dealing with revenue, licensing and fisheries and other offences.
Probation orders are designed principally to be rehabilitative rather than punitive. Compensation may be provided for with probation. However, it may not be penal in nature.
Probation of Offenders Act
The Act provides where a person is charged before a court of summary jurisdiction with an offence punishable by such court, and the court thinks that the charge is proved but is of the opinion that having regard to the character, antecedents, age, health and mental condition of the person charged or the trivial nature of the offence or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or anything other than nominal punishment or it is expedient to release the offender on probation, the court may, without proceeding to a conviction, make an order either:
- discharging the information or charge;
- discharging the offender conditionally on entering into a recognisance with or without sureties to be of good behaviour and to appear for conviction and sentence when called on at any time during the period not exceeding three years as may be specified in the order.
The judge must have regard to the evidence before the court. The order should specify the ground relied on for the purpose of the Act. A recognisance may be required under the conditions as may be specified. It may require residence in a particular place, abstention from certain actions as may be required in the circumstances in order to prevent a repetition of the offence or other offences.
Dismissal or discharge under the Probation Act, it is not an acquittal. It may only be imposed if the charge has been proved. It does not however constitute a conviction. Sometimes a discharge under the Probation Act is used to ensure that persons convicted of minor drug offences do not have a criminal record for drug possession, such as to be to their determent in entering third countries, in particular the United States.
Where a person has been convicted on indictment, then the court having regard to the above factors and circumstances may in lieu of sentencing him to imprisonment grant a conditional discharge in the same manner as above.
The Probation Act may be applied to companies. It may even apply to a local authority.
An order may be made requiring the offender to pay damages as compensation for injury and loss. In addition, the Criminal Justice Act 1993 provides further for compensation orders.
The court may impose conditions with respect to the matters specified above. The person concerned must be given notice in simple terms of the conditions with which he must comply.
A probation order for supervision is a discharge on that condition. It may be a condition of the recognizance that the person be subject to the conditions specified.
The District Court Rules allow the judge to order the defendant to pay the costs and witness expenses if he thinks fit. A compensation order may be made.
A person who has been dealt with under the Probation of Offenders Act may have his fingerprints, palm prints, or photographs taken.
A probation order may be a subject of an appeal to the Circuit Court. It may also be the subject of judicial review
The form of recognisance is prescribed by the District Court Rules. The court furnishes a notice in writing to the defendant setting out the conditions with which e is obliged to comply.
The recognizance given may be varied. It may be extended or retracted in duration. Additional conditions may apply. It may be discharged if it is no longer necessary for the person under supervision.
A probation officer may make an application for the variation of an order. The person who is bound must be summoned and allowed to give the opportunity to argue why the order should or should not be varied.
Probation officers act on the direction of the court. They visit and receive reports from persons under supervision at reasonable intervals as may be specified in the probation order or as the probation officer may think fit. They are to see whether the person has complied with the terms of his recognisance. They may report to the court on the person’s behaviour. They may advise, assist and befriend the person concerned and if appropriate find him suitable employment.
Probation officers are generally qualified social workers. Formerly, many unpaid volunteers acted as probation officers.
The court may defer the sentence and request the probation service to provide the court with a report in relation to the person concerned.
It is the duty of the probation officer subject to directions of the court:
- to visit or receive reports from the person under supervision at reasonable intervals as may be specified or as the probation officer sees fit.
- to see that he observes the conditions of the recognizance, report to the court on his behaviour and to advise, assist and befriend him and where necessary endeavour to find him suitable employment.
A court before which any person is bound by recognisance to appear for conviction and sentence or sentence, may if it appears, on the application of the probation officer that it is expedient that the terms and conditions of the recognisance be varied, summon the person concerned to appear before it.
If he fails to show cause why the variation should not be made, the court may vary the terms of the recognisance by extending or diminishing its duration or an application be made by a probation officer being satisfied that the conduct of the person has been such as to make it unnecessary that he be any longer be under supervision, discharge the recognisance.
On the application, the original recognisance shall be produced in court. Where it is varied, the person shall re-acknowledge the recognisance as so varied.
An appeal lies to the Circuit Court from orders under the Probation Act, notwithstanding that it does not constitute a conviction.
There is a significant amount of legislation in respect of which it is specifically prohibited to apply the Probation Act. In broad terms, Probation Act is inapplicable to the following categories:
- the principal road traffic offences involving intoxicants;
- the principal Licensing and Intoxicating Liquor Act offences;
- certain customs, excise and revenue offences including the principal criminal provisions of the Taxes Act.
If the principal offence is one in respect of which the Probation of Offenders Act may not be applied, this position also applies in respect of the offences of aiding and abetting that offence.
Failure Comply Recognisance
If an application is made on oath to the District Court that the offender has failed to observe conditions of his recognisance, the court may issue a warrant for his arrest. Alternatively, it may issue a summons to the offender and sureties requiring them or him to attend when specified.
The offender is to be brought before a court when apprehended. The court may remand him to custody or on bail. He is brought before the court which originally bound him. If the court is satisfied that he has failed to observe the conditions of his recognisance, may, without further proof of his guilt convict and sentence him for the original offence.
The District Court may estreat a recognisance against an offender or surety. This involves forfeiture of the bond given by the sureties. The procedure for estreating a recognisance is similar to that in respect of failures to comply with bail. The court may order that the monies conditioned to be paid under the recognisance into court may be forfeited.
Where a bank, building society, credit union or Post deposit book has been accepted as security, it may order the surety to pay the amount into court or such lesser amount as the court orders. Where necessary for the estreatment, a court may appoint a receiver to take possession and control of the property of the person or surety.
A receiver acting under an appointment enjoys certain immunity. Money recovered by the receiver may be applied to meet expenses incurred in the performance of his functions, as well as the sum assured.
If the person concerned has breached any of the conditions of the recognizance, a warrant may be issued for his arrest or summon or for his surety to appear. He may be remanded in custody or on bail if the matter is not dealt with immediately. If the court is satisfied that he has breached the terms, it may immediately without proof of guilt convict him and sentence him for the original offence or send him to the juvenile equivalent.
The court may, on the application of a member of An Garda Síochána, on information being made in writing, a person has contravened a condition of a recognisance, issue a warrant for his arrest. A member of An Garda Síochána may arrest the person pursuant to the warrant notwithstanding it is not in his possession. The person concerned is to be brought as soon as practicable, before a court.