Criminal proceedings are generally prosecuted by a state authority. Less serious or minor offences are usually prosecuted by An Garda Síochána either with or without the assistance of the State Solicitor’s Office or DPP. In the case of non-minor offences, the DPP’s consent is generally required.
Some categories of offence, particularly regulatory offences are prosecuted by particular Departments, Agencies and Authorities. For example, the ODCE prosecutes compliance with companies law. Various government departments enforce particular legislation within their remit.
A member of the public may bring summary proceedings. A compliant must first be made to the District Judge or District Court clerk, who may issue a summons if he is satisfied there is a valid complaint. If it concerns a non minor offence, subject to jury trial in the Circuit, the member of the public may prosecute only up to the stage of the return of the accused for trial in the Circuit Court.
Arrest, Charge & Bail
There are two means by which a person may be charged and brought before the court. The first and more common method in respect of minor and regulatory offences is by way of service of a summons. The summons directs the person to attend before a court to answer the stated complaint or charge.
The second method is by way of a charge after arrest. Where a person is charged with a criminal offence at a Garda station, he may be given a document setting out the charge of facts alleged. This is the charge sheet. As with a summons, it should specify the time, particulars of the offence and the legislation (or at common law, if applicable).
Once a person has been charged, he may be released on “station” bail. Bail is security for attendance at court. Station bail is granted by the member in charge of the Garda station. A person may be released on bail subject to entering a recognisance which is a bond that he will attend the District Court at the next sittings or within 30 days or as specified.
If he fails to do so, a bench warrant (issued by the court) for his arrest may be issued. Failure to comply is a criminal offence subject to 12 months’ imprisonment.
In the case of certain more serious offences, station bail is not permitted. Bail may be granted by the High Court. Where a person is refused station bail, he may apply to the District Court for bail.
Once before the court, the person prosecuting (usually a Garda) will usually give evidence of arrest, charge and caution and the reply made. The charge sheet will then be lodged.
Where a person has not been arrested, a summons is served to require him to attend court. Most summons are issued by the District Court clerk / office following application by the prosecutor, usually a Garda or other authority, by making an application which is termed a compliant. The District Court itself may also issue summons in certain cases.
The summons should state precisely the offence alleged, the name and address of the person accused, the time, and place committed and the legislative basis.
Generally, a summons is served by a member of the Garda Síochána other than the one who made the compliant or by a summons server. A summary offence summons may be served by registered post, recorded delivery or by hand. Service must be at least 7 days before the hearing.
A summons will lapse and be struck out of the District Court list if it is not served. If the summons is defective the proceedings may be aborted.
Generally, a compliant must be made within 6 months of the alleged offence. The compliant does not relate to the hearing or even to the issue of the summons. It relates to the complaint to the District Court office requesting the issue of a summons].
In many cases the default 6 month time limit is extended by statute to a year or two years, and in some more unusual cases.
Effectively, there is no time limit for the commencement of a prosecution on indictment. However, in some cases the courts have decided that where there is a long and serious delay which prejudices the defendant in conducting his defence, basic principles of Constitutional justice may require that the offence is not charged.
It may be possible to apply to the High Court to have a judicial review to prohibit the proceedings. The courts have decided that the provisions in the Constitution for a trial in due course of law implies that the trial will be undertaken with reasonable expedition.
The general principle with bail is that that it is intended to secure attendance in court. Formerly, the position under the Constitution was that bail could not be refused to prevent crime and reoffending while on bail. This was because of the principle that a person was presumed innocent until found guilty.
The courts decided that the legitimate basis for refusal of bail was that that accused might evade justice or interfere with witnesses. The Constitution was amended in 1996 to make provision for refusal of bail in the case of a serious offence, where it is considered reasonably necessary to prevent commission of a serious offence. A Bail Act was passed to regulate the granting of bail.
In considering bail, the courts have regard to
- the seriousness of the offence charged,
- the likely sentence,
- the strength of the case against accused,
- previous records of conviction on bail,
- addiction to drugs is also relevant.
Serious offences are offences subject to 5 years imprisonment or more on conviction. This covers a broad range of offences. A previous criminal record is excluded except for ones committed on bail. A previous criminal record may not be referred to in a way that prejudices a fair trial.
Conditions are imposed on the grant of bail to secure attendance. Generally, a recognisance is entered by the accused and any sureties required. They must sign and acknowledge the recognisances. The principal condition is that the accused will appear before the court on the required date. Further conditions are possible, including conditions that they should not commit offences and be otherwise of good behaviour.
The recognisance may require the accused to reside or remain in a particular area, report to the Gardai at specified intervals, surrender his passports or travel documents, refrain from attending certain places that are specified and refrain from having contact with specified persons.
Recognisance may require sureties who guarantee compliance by the accused with the bail conditions. The amount of recognisance becomes a fixed debt due in default of performance of the conditions. One or two sureties may be required. Cash may be required to be lodged. Recognisances need not necessarily provide for payment of monies.
Bail must be fixed at an amount which would not lead to an effective denial of bail and inevitable imprisonment. The court has regard to the circumstances, including the person’s means, the nature of the offence. The court, having regard to circumstances and the nature of offence require an amount equal to a third or greater be paid into court.
The court must satisfy itself regarding the sufficiency and suitability of any surety. It must have regard to the character, background, financial resources, previous convictions and relationships. The surety gives sworn evidence.
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