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Criminal Law Dublin

Generally criminal proceedings are started in the District Court (although more serious offences can be initiated in the Special Criminal Court) and are started in one of two ways-by way of District Court summons or the charge sheet procedure.

Most criminal prosecutions in Ireland are brought by the DPP (Director of Public Prosecutions) although other entities can also prosecute crime in Ireland.

The Attorney General, Dublin City Council, the Competition Authority and others also have the power to bring criminal proceedings.

 

1. District Court Summons Procedure

A District Court summons is basically an order to appear before the District Court to answer a complaint.

This complaint will have been made by a member of An Garda Siochana and on foot of this complaint a District Court clerk will issue a summons for the attendance of the accused before the District Court to answer the complaint.

 

The Validity of the Summons

In order for a summons to be valid it must

  • State in ordinary language details of the offence of which you are accused
  • It must give you the time, date and location of the District Court before which you must appear.

Service of the summons can be carried out in person by a Guard or by post and it must be served 7 days before the Court date.

If there is a serious defect in the Summons, for example omitting the location of the court, then the summons will be struck out by the sitting Judge.

 

Time Limits for the Issuing of A Summons

The time limit for the issuing of a summons is that the complaint must be made to the District Court clerk within 6 months of the alleged offence, provided the offence is a minor or summary offence.

 

Indictable Offences Time Limits

Indictable offences do not have time limits imposed and can be prosecuted at any time after the alleged offence.

 

2. Charge Sheet Procedure

Offences can also be prosecuted by way of the charge sheet procedure in the District Court.

The charge sheet procedure involves the arrest of the alleged offender and transportation to the garda station where the arrested person will be given a sheet which sets out the facts of the alleged offense and the charge.

Once the charge is read out to the accused person, any remarks or comments made by him will be noted on the charge sheet.

The accused person may be released on station bail, provided there are no outstanding warrants for his arrest.

If the accused is released on bail he will have to enter a recognizance to compel his appearance before the next sitting of the District court. If he is refused bail he can apply for bail to the Judge at the District Court sitting before which he appears.

If the accused person fails to appear a “bench warrant” will be issued by the Judge for the arrest of the accused to bring him before the court to answer the charges against him.

Once the accused is before the District Court the arresting Garda will give evidence of arrest, charge and caution and will also give evidence of any comments made by the accused.

The charge sheet is then lodged with the District Court clerk.

These are the two methods by which you will find yourself before the District Court to answer criminal charges.

If the alleged offense is not a minor offense but an indictable offense the accused may be sent to the Circuit Criminal Court, the Special Criminal Court or the Central Criminal Court.

If you are in doubt whether you need a solicitor to represent you when facing a criminal charge this video will explain why it is critical to have legal representation in certain circumstances.

By Terry Gorry Google+

Historically solicitors would advise clients in custody that there was not much to be gained by making a statement, either under caution or otherwise, when being questioned by the Gardai.

They would explain that the client could invoke the privilege against self-incrimination.

right-to-silence

However this position has changed somewhat in the last few decades.

There has been a growing body of legislation which makes this advice more problematic as under various pieces of legislation now on the statute books it may be an offence to fail to explain certain matters or adverse inferences may be drawn against the arrested person which may later be put to a judge or jury.

Criminal Justice Act, 1984

The Criminal Justice Act, 1984 contains a number of provisions which are designed to force the arrested person to provide information to the Gardai. This can have serious consequences when someone is arrested and detained for questioning and ensures that the arrested person has a decision to make in relation to what he/she might say when being questioned.

Section 15 of the Criminal Justice Act, 1984 makes it an offence for a person not to account for a firearm in his/her possession.

Secition 16 of the Criminal Justice Act, 1984 makes it an offence for an arrested person to fail to account for any stolen property in his possession.

Section 18 of the Criminal Justice Act, 1984 obliges a person to account for any object, substance or mark on him which the Garda suspects is because of the person’s participation in an offence and Section 19 obliges a person to explain his presence in a particular location.

right-to-silence-ireland

Both sections 18 and 19 can lead to adverse inferences being drawn against the arrested person by a judge or jury at the hearing or on preliminary examination. However a person cannot be convicted on the basis of inferences alone.

Section 18 and 19 of the Criminal Justice Act, 1984 have been amended by the Criminal Justice Act 2007 with similar consequences but the arrested person must be told by the Gardai about the effect of failing to answer questions and must be given the chance to consult with a solicitor.

The Criminal Justice Act 2007 provides additional safeguards for the arrested person; for example inferences can only be drawn there the interview has been recorded electronically.

Other acts such as the Criminal Justice (Drug Trafficking) Act 1997, the Offences against the State (Amendment) Act 1998, the Misuse of Drugs Act 1977 and 1984 and the Criminal Justice (Forensic Evidence) Act, 1990 all compel the arrested person to provide information or material.

In conclusion the old advice of “whatever you say, say nothing” may not be the best advice in all circumstances and if you find yourself in this situation you should avail of your right to consult with a solicitor.

By Terry Gorry Google+
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Well meaning friends can advise you that you do not need a solicitor when charged with particular offences. However before you decide that you don’t need legal representation you should take a look at the video below which looks at situations where you may be successful in an application for the Probation Act rather than having a criminal conviction imposed on you.

Being convicted can carry consequences far beyond a small fine on the day; for example if you ever decide that you would like to work abroad your conviction may well go against you.

By Terry Gorry Google+
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The free legal aid scheme in Ireland for criminal cases provides for legal representation for accused persons who cannot afford legal representation.

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There are a number of conditions to be met before you will be able to access legal aid from the scheme.

Essentially two conditions must be present:

1. The accused person does not have the means to pay for a criminal defence lawyer themselves and
2. It is essential in the interests of justice, because of the seriousness of the charge or circumstances of the alleged crime, that the accused person be legally represented.

This will often see the Judge enquiring from the prosecuting Garda whether the accused is “at risk” of a custodial sentence. If not then the Judge may refuse an application for legal aid.

However a recent Supreme Court decision has cast some doubt on a rigid adherence to this criterion..

This Supreme Court decision of July, 2011, in the case of David Joyce (appellant) and Judge Patrick Brady and the Director of Public Prosecutions (respondents), is an interesting one as it appears to consider that the well accepted criterion of considering whether the accused person is “at risk” of a custodial sentence falls short of the constitutional guarantee in Article 38 of a “trial in due course of law” and the accused’s right to fair procedures guaranteed by Article 40.3.

Facts of case

The appellant in this case was charged with theft of goods to the value of €284.45 (section 4 Criminal Justice (Theft and Fraud Offences) Act2001 from a Spar shop in Portmarnock. This offence was to be prosecuted summarily by the DPP in the District Court according to the Garda Sergeant when the case first came before Swords District Court on 4th October, 2005.

However the Judge had not yet determined that the offence was a minor offence and Mr. Joyce was not advised of his right to be tried by jury, his right of election, nor had he objected to a summary trial.

Mr. Joyce’s solicitor applied for a legal aid certificate but Judge Brady adjourned his decision in respect of this application pending receipt of a statement of means. Mr.Joyce’s means were not such as to be able to afford legal representation and had no previous convictions.

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On the next occasion before the District Court no statement of means was furnished and the Judge did not decide on the application for a legal aid certificate. However Mr. Joyce was given a copy of the CCTV footage and the witness statement which would indicate that this case was being treated as one of the more serious or complex cases referred to in State (Healy) v Donoghue[1976] I.R. case. (In State (Healy) v Donoghue [1976] I.R. O’Higgins C.J. stated that “many very minor cases may not require that statements be furnished”.

The case came before the District Court next in November, 2005 and Mr. Joyce’s solicitor and counsel, acting pro bono still, raised the problem that they had in relation to viewing the CCTV footage on a standard video player and the issue of legal aid. At this point the Judge asked the Court presenter whether Mr. Joyce was “at risk” with the Judge clarifying for Mr. Joyce that what he meant by this question was whether he was at risk of a custodial sentence.

The Garda replied in the negative.

The Judge then considered the application for legal aid over lunch and refused the application having heard the facts of the case. Judge Brady said he had considered State (Healy) v Donoghue [1976] and decided that this case was a minor one and there was no risk of a custodial sentence.

However he did say that if there was an intervening offence which changed the risk of a custodial sentence then a fresh application for legal aid should be brought on behalf of Mr. Joyce.

Judicial review proceedings were then commenced seeking a certiorari order quashing the District Court Judge’s decision. The High Court noted that Mr. Joyce’s right to election for a trial by jury was not dealt with in the District Court.

free-legal-aid-ireland

The High Court then remitted the case back to the District Court to renew the application for legal aid and to allow his legal team to argue that the omission of Mr. Joyce’s right to election was an “exceptional circumstance” justifying the grant of legal aid.

This decision of the High Court was then appealed to the Supreme Court which decided that applying the rule of thumb as to whether the applicant was “at risk” of a custodial sentence in making it’s decision was too restrictive and in error.

The Supreme Court noted that even though the case was considered sufficiently important to require disclosure it was not considered sufficiently important to require legal aid and further noted that Garda Curtin could only observe that “while not trivial the charge facing the Applicant is by no means at the more serious end of the scale”. (Emphasis added)

The Supreme Court went on to consider what would have been required to ensure a professional defence of the case and found that:
1. you would need to know that even though the offence was indictable that it could be tried in the District Court but only with the agreement of the accused;
2. you would need to form a professional view as to the best venue from the accused’s point of view;
3. you would need to know that you could apply for disclosure
4. you would need to be aware of the case law in relation to cctv footage as evidence
5. and many other issues surrounding the facts of the case.

Critically the Supreme Court held that

“it is flawed logic to seek to conclude that because a person who was at risk of imprisonment must receive legal aid, it necessarily follows that absent a risk of imprisonment (the assessment of which is always somewhat speculative) that legal aid should not be provided. More importantly such a conclusion is in my view inconsistent with the reasoning of the Court in State (Healy) v. Donoghue.”

It further held that

“There is something fundamentally incongruous in the contention that a trial for theft would be unfair if the accused was convicted (perhaps having pleaded guilty) and sent to jail for even a day, but that a trial of the selfsame offence including the same facts and issue of law would become fair if the accused were only fined or required to do community service if convicted, even though such conviction would brand him a thief.”

The Supreme Court went on to consider in greater detail the seminal case in this regard, State (Healy) v Donoghue[1976] and found that

“It is quite clear, however, that the Court did not find that legal aid was only required when a person was imprisoned on conviction, or even when the more nebulous concept of facing a risk of imprisonment was found to be satisfied.”

It also found that

“It is clear therefore, that the Act of 1962, does not merely confer a statutory right to legal aid, it is the “practical implementation of a constitutional guarantee” and must be interpreted accordingly.”

Finally, in it’s decision in the case at hand, David Joyce and Judge Patrick Brady and the Director of Public Prosecutions, it critically held that

“The factors in this case which appear to have led to the conclusion that the accused was not “at risk” and therefore told against the application for legal aid – the absence of previous convictions and the accused’s lack of familiarity with a courtroom – were factors which in my view should have led to the opposite conclusion.

The impact on a young man of a first conviction for a crime of dishonesty is considerable. His ability to defend himself effectively was doubtful to put it at its lowest. Having regard to what was involved, I consider that the facts of this case satisfied the statutory test when taken alone. This charge was of sufficient gravity to merit the grant of legal aid.

However, when the statutory language is approached, as it must be, in light of the requirements of the Constitution, of which the words of the statute are a somewhat imperfect reflection, then the conclusion is to my mind inescapable. While fully appreciating the motives of the learned District Judge, and recognising the demands imposed by the requirement to deal with a considerable volume of cases under significant pressure of time, I have nevertheless come to the conclusion that the decision to refuse legal aid in this case was wrong and therefore unlawful, and must be quashed. Accordingly, I would allow the appeal.”

Should you be charged with a criminal offence you should contact a solicitor. We at solicitors Dublin are on the legal aid panel for criminal matters in Dublin.

By Terry Gorry Google+

In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
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