Article 38 of the Constitution provides that no person shall be tried for any criminal charge, save in due course of law. Minor offences are to be tried by the courts of summary jurisdiction. There are exceptions in the case of special courts and military tribunals. See the separate chapter on states of emergency, war and rebellion.
Apart from the above circumstances, there is a constitutional right there is a right of trial by jury. See the sections on criminal procedure in relation to this right.
Legislation may provide that the choice of a jury trial rests with the accused, more commonly the State, and/or requires the consent of the District Court to be satisfied that it is a case fit to be tried summarily.
Minor or Non-Minor
The key criteria are the nature of the offence charged, the sanctions, the context and nature of the act. Many offences are hybrid offences. In some circumstances, the same offence may be minor, whereas in other circumstances, it may be non-minor. The charge alone does not determine the position in this case.
Certain offences are inherently non-minor in nature. In other cases, regard must be had to a range of criteria. One of the main indications of a non-minor offence is the risk of loss of liberty. The severity of the possible sanction is a critical factor.
From case law, it appears that where there is a risk of sentence of more than 12 months, the offence is non-minor in nature. In almost all cases, District Court jurisdiction to imprison is capped at 6 or 12 months. Where the accused is sentenced by the District Court for an indictable offence tried summarily, the maximum penalty is 12 months’ imprisonment. In the case of consecutive offences, the maximum of two years.
Offences may carry severe secondary consequences, such as a driving disqualification. The Supreme Court has held that a driving disqualification is a secondary punishment and accordingly is not to be taken into account, in considering whether the offence is minor or non-minor.
The power to make an unlimited compensation award, in addition to a fine or imprisonment as part of the penalty, was held unconstitutional in a road traffic case. This was distinguished from the approach regarding collateral or secondary penalties, because it purported to increase the penalty.
Forfeitures are common under fisheries and revenue legislation. The courts have appeared willing to take forfeiture into account, at least to some extent in conjunction with other penalties and factors. However, if the things forfeited are those inherently used or designed for commission of the offence, they are not relevant to the issue of whether the offence is itself minor. This is so even if the things concerned, may be otherwise used in a proper and legal manner.
No Right to Jury
It has been held that detention of juveniles in reform schools, now detention centres, laterally, by the District Court acting as the Children Court does not require a jury. The procedures have been held not to be in the nature of a criminal procedure, as the detention although having many characteristics of imprisonment, is not characterised as reformatory.
The monetary sanction is a consideration. If a fine substantially more than the District Court upper limit (generally €5,000) now a Class A fine, may be imposed on conviction for the offence, this tends to point to a non-minor offence.
In many cases, the possible sanction may be open-ended and at the court’s discretion. A determining factor in deciding whether an offence is a minor offence should be the penalty imposed or not.
An imprisonment in lieu of fine, which is commonly imposed. Imprisonment in this context does not appear by itself to take the offence out of non-minor category.
The fact that an accused is charged with numerous offences which collectively might appear to be non-minor in terms of their consequences, does not take them out of the minor category. Each offence is taken separately. There may however be constitutional limitations to charging a large number of convictions for linked minor offences at the same time.
Decision to Prosecute
Historically, the courts would not to review decisions of the, the Director of Public Prosecutions. A private person may bring a summary prosecution only to the point of return for trial. Thereafter, the matter is within the exclusive control of the DPP. In cases, if the decision is taken in bad faith or for improper motive, then it appears the courts may review the decision of the DPP.
Historically, reasons were not given for non-prosecution. However, the DPP has instituted a programme whereby in some limited circumstances, it will consider giving the reasons for its decision.
The DPP has power to take over summary prosecutions commenced privately, enter a nolle prosequi, terminate a prosecution or to give various directions, including in particular directions that a person should be tried before the Special Criminal Court. Each of these falls into the non-reviewable category.
The so-called common law rule against double jeopardy has been recognised as being of constitutional standing. It is explicitly recognised in international human rights instruments including the European Convention on Human Rights Protocols.
The principle holds that person who has been tried and convicted or acquitted, is not to be tried for the same offence, substantially the same offence or an offence of which he could have been found guilty based the same facts. The common law principle is that a conviction or acquittal in these circumstance is a defence to a new charge.
The principle covers offences for which a person may have been found guilty within the previous trial on the same underlying facts. A person who admits offences which are taken into account in sentencing, is not to be retried in respect of the same offences.
In the State (O’Callaghan) v O’hUadhaigh, a constitutional right against double jeopardy was recognised, at least to an extent. It was held that a new prosecution could not be commenced where a prosecution had proceeded to swearing in of the jury before the striking out of offences and purported recommencement. The court proceeded on the basis of a failure of fair procedures rather than explicitly on the basis of double jeopardy.
The appeal court may reverse a conviction and order a person to be retried in the same offence. The conviction must arise from a faulty trial, which but for such fault, might have led to a conviction.
The Criminal Procedure Act 2010 allows new proceedings to be taken where there is new and compelling evidence against the accused in respect of the offence and it is in the public interest that he be retried.
Article 35.2 requires that judges shall be independent in the exercise of their judicial functions. This reflects a very fundamental and long-established principle of law.
A person shall not be a judge in his own case accordance to the Latin maxim Nemo Iudex in sua Cause. However, in the judicial context, the principle is of long-standing common law and near universal standing.
Once the District Court has proceeded to hear the case and concludes that the appropriate sanction is non-minor in nature, it may not remit the case to the Circuit Court for sentencing or terminate the proceedings, for a charge on indictment. Once the conviction is entered by plea or determination, it is too late to recommence.
Formerly, prosecutions were undertaken by the Attorney General’s office in more serious cases. In 1974, the office of the Director of Public Prosecutions was established as an independent office outside of government. See generally the sections on the Attorney General and the Director of Public Prosecution.
The Director of Public Prosecutions has the final decision in relation to the prosecution of serious offences. The office will generally assess the position with reference to the sufficiency of the evidence.
The right to free legal aid in non-minor offences and more serious cases in the District Court is guaranteed by the Constitution.
Where a person’s liberty is at stake or where he faces a severe penalty, which may affect his welfare or livelihood, justice may require more than the application of standard fair procedures in relation to the trial. Facing as he does, the power of the State, which is his accuser, the person may be unable to defend himself adequately, because of ignorance, lack of education, youth or other incapacity.
In such circumstances, his plight might require that if justice is to be done, that he should have legal assistance, in such circumstances, if he cannot provide such assistance, by reason of lack of means or where justice under the Constitution, requires that he be aided in his defence. The concept of justice under the Constitution or constitutional justice may require that in such circumstances, the person charged must be afforded the opportunity of being represented.
The Criminal Justice (Legal Aid) Act 1962 gives statutory effect to the constitutional right later acknowledged. The accused should be informed of his right to apply for a legal aid certificate.
Where a person due to physical or mental condition or other circumstances is not aware of his right, he should be informed of it. Where a person pleads guilty and it becomes apparent that imprisonment becomes a risk, he must be informed by the judge of his right to legal aid. Where a person is convicted, without legal representation, the judge may be obliged to notify him of his right to legal aid if a custodial or other sentence carrying serious consequences is in mind.
Where a conviction would have far-reaching adverse consequences for accused, the entitlement to a fair trial may also include a right to counsel. The legal aid rules permit application for approval of a certificate for counsel where such circumstances apply.
The legal aid scheme gives a limited choice of counsel. Only lawyers on the legal aid panel may be used. The court may designate a particular solicitor. The solicitor may have the choice in retention of counsel.
An appropriate adjournment should be given to facilitate the presence of legal representation. Even if a person has missed his legal team or they are late, the court should generally afford an adjournment to ensure he has legal representation, provided that the accused acts in good faith.