Road Traffic Offences

Driving Without A Licence | Driving Without Insurance

Some common road traffic offences on the roads in Ireland are set out below together with the penalties and any possible defences.

Driving without insurance is a serious criminal offence

Driving without a licence

This offence is contained in Section 38 of the Road Traffic Act, 1961 and basically states that you cannot drive or allow another to drive your vehicle in a public place without the driver holding a valid driving licence.

driving” includes managing and controlling (Section 3, Road Traffic Act, 1961)

“‘public place’ means—
(a) any public road, and
(b) any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge;”; (Section 49, Road Traffic Act, 1994)

It must be a mechanically powered vehicle so if your vehicle is broken down or no longer capable of being mechanically propelled then it is exempt.

The only defence to this offence is that the driver holds a valid learner permit for that class of vehicle.

It is a defence for an employer who is prosecuted for employing a person without a licence to show that the driver had an effective learner permit.

It is important to note that both the driver and owner are liable on conviction and the penalties include 2 penalty points on payment of the fixed charge; if you don’t pay the fixed charge penalty the penalty is 5 points on conviction in court.

Driving without insurance

This is covered by sect. 56 of the Road Traffic Act 1961 which was substituted by sect. 34 of the Road Traffic Act 2004.

34.—The Principal Act is amended by substituting for section 56 the following:
“56.—(1) A person (in this subsection referred to as the user) shall not use in a public place a mechanically propelled vehicle unless—
(a) either a vehicle insurer or an exempted person would be liable for injury caused by the negligent use of the vehicle, by him or her at that time, or
(b) there is in force at that time an approved policy of insurance whereby the user or some other person who would be liable for injury caused by the negligent use of the vehicle at that time by the user, is insured against all sums, subject to subsection (2) of this section, without limit, which the user or his or her personal representative or such other person or his or her personal representative becomes liable to pay to any person (exclusive of the excepted persons) by way of damages or costs on account of injury to person or property caused by the negligent use of the vehicle at that time by the user.

It is noteworthy that this offence can be proved even if you are only parking the vehicle as the offence states that ‘a person shall not use in a public place..’ so this does not require ‘driving’ for the offence to be proved.


If you are the owner of the vehicle which is the subject of the legal proceedings it is a good defence to show that the vehicle was being used by the driver without your consent.

If you are the driver of the vehicle and you do not have a valid insurance policy for that vehicle, it can be a good defence to show that you were acting on the express instructions of the owner (perhaps your employer).

Of course it is a good defence to show that you had in fact a valid insurance policy which you can produce later in the Garda station or court.

There are stiff penalties for driving without insurance including 6 months in jail or a fine up to £5,000.

If you are brought before a court on this charge and it is your first offence, the court has the discretion not to impose a consequential disqualification if it decides that you have a special reason for driving without insurance.

But a second or further offence for this charge will lead to an automatic disqualification for at least 2 years.

This offence will also lead to 5 penalty points for you and even if it is your first offence and the court uses it’s discretion not to impose a disqualification you will still get the 5 penalty points on your licence.

The Burden of Proof re Driving Without Insurance

It is worth noting that once a Garda asks you for production of your insurance certificate and you fail to do so, the evidential burden of proof shifts to you to prove that you had insurance in place at the time of the alleged offence. See below.

Section 56 (4) of the Road Traffic Act, 1961:

(4) Where, in a prosecution for an offence under this section, it is shown that, a demand having been made under section 69 of this Act,—
(a) the person on whom the demand was made refused or failed to produce a certificate of insurance, certificate of guarantee or certificate of exemption then and there, or
(b) such person, having duly produced such certificate consequent upon the demand, refused or failed to permit the member of the Garda Síochána to whom such certificate was produced to read and examine it,
it shall be presumed, until the contrary is shown by the defendant, that the vehicle was being used in contravention of this section.

This is part of the road traffic offences series.

If you need to speak to a solicitor please feel free to do so or use the contact form below.

Criminal Law

Sentencing In the Criminal Courts In Ireland

criminal sentencing ireland

There is much debate about sentencing in the criminal courts in Ireland and the severity or otherwise of sentences handed down in criminal courts.

To understand better how sentences are arrived at in criminal cases it is important to understand that the goal of a sentence in a criminal case is to deter the criminal from offending again but also to persuade him to turn from a life of crime to an honest life.

A guiding principle in this regard therefore, and one which enjoys constitutional protection, is the principle of proportionality as set down in State (Healy) v Donoghue (1976) which recognized this principle and stated that it had 2 aspects to it:

1.       The sentence must be proportionate to the gravity of the offence committed

2.      It must also bear in mind the personal circumstances of the offender.

Plea in Mitigation

After conviction, the solicitor or barrister for the convicted person will make a plea in mitigation to try to minimize the sentence to be handed down.

Factors which will be put before the court on behalf of the convicted person will include any factors to do with the offence itself and to do with the personal circumstances of the offender which might portray the convicted person in the most favourable light.

These factors will include

  • The age of the defendant, family circumstances
  • Any addiction problems
  • Any attempts to sort out his problems such as treatment centre visits or courses
  • Cooperation with the Gardai
  • Attempts to compensate the victim
  • Remorse
  • Apology
  • A guilty plea and how quickly this was offered
  • Absence of violence in the commission of the crime

These mitigating factors should be considered by the Judge AFTER the Judge has thought about the sentence to be imposed after considering the gravity of the crime.

Once the Judge does this he will then reduce the sentence he has arrived at by whatever reduction he deems appropriate after hearing of the mitigating factors proffered by the solicitor/barrister for the defendant.

The Judge will also ask the Gardai about previous convictions and any other relevant factors to do with the crime such as the circumstances of the victim, whether violence was used, whether a position of trust was breached and any else that is relevant.

Previous convictions for the same type of offence will result in a harsher penalty than if the offence before the court was the first time.

Many Judges will also adjourn sentencing until the Court has been provided with any relevant reports about the offender such as probation reports, medical and psychiatric reports etc.

Where the crime has involved violence and/or sexual violence the Criminal Justice act 1993 makes provision for a victim impact report which can be taken into account before arriving at a suitable sentence.

Reports Furnished to Court

A judge may adjourn sentencing in order to obtain a probation and welfare report or other reports such as medical and psychiatric reports.

The purpose of these reports is to provide a full picture of the offender, his background, his/her attitude to crime and the prospects for rehabilitation.

The Criminal Justice Act, 1993 also provides for a victim impact report to be prepared which will be taken into account when sentencing. This report gives the victim the opportunity to give evidence of the impact of the crime on him/her.

This report arises in cases of personal or sexual violence.

Concurrent and Consecutive Sentences

Judges have discretion to impose concurrent or consecutive sentences.

Generally, concurrent sentences will be imposed where the crimes arise from the same incident. This is known as the ‘one transaction rule’.

Section 11 of the Criminal Justice Act, 1984 provides for consecutive sentences where an offence is committed while on bail and the Judge has no discretion in this regard.

Guilty Pleas

If you plead guilty you will almost certainly get a more lenient sentence from the Judge.

However, when you make that guilty plea may well influence how much leniency you receive. Generally, the earlier in the proceedings that you plead guilty, the more leniency you can expect.

Types of Sentence


Section 1(1) of the Probation of Offenders Act, 1907 allows a Judge to apply this section of this act to …

without proceeding to conviction, make an order either-

1) dismissing the information or charge; or

2) discharging the offender conditionally on his 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 such period, not exceeding three years, as may be specified in the order.

The Act may be applied depending on

  • the character, antecedents, age, health or mental condition of the person charged
  • the trivial nature of the offence
  • the extenuating circumstances under which the offence was committed.

It is worth noting that the Court may apply this before proceeding to conviction. Therefore, you will not have a criminal conviction recorded against you if you are given section 1 (1).

Section 1(1) of the Probation of Offenders Act, 1907 cannot be applied in certain cases, eg drink driving offences under the Road Traffic Acts.

Section 1(2) of the Probation of Offenders act, 1907 can be applied in indictable offences punishable by imprisonment. However the difference between 1(1) and 1(2) is that 1(2) can only be applied where you have been convicted.

The recognisance into which you enter under 1(1) or 1(2) will see you placed under the supervision of a probation officer-this is known as a ‘probation order’.


A bindover order binds a person to the peace or good behaviour or both. The Criminal Law Act, 1997 allows a person to be bound to the peace or good behaviour without a fine for prison sentence being imposed.


The Criminal Justice (Community Service) Act, 1983 allows a court to impose a community service order for anyone over the age of 16 and who has been convicted of an offence for which the appropriate sentence would be a term of imprisonment or detention. The total number of hours may not exceed 240.

The defendant must consent to this order being made; generally, most defendants are happy to do so as the alternative will be worse.


When imposing fines, the Court is supposed to take into account the means of the defendant.

The maximum fine that can be imposed in the District Court is €5,000 since the Fines Act, 2010.


The Criminal Justice Act, 1993 makes provision for a compensation order to be made by a Court. This type of order is to compensate the victim for any loss or injury suffered as a result of the offence.

The means and financial commitment of the offender will be taken into account.


Suspended sentences had no statutory basis until the Criminal Justice Act, 2006.

When a Judge decides to suspend a sentence, he/she will impose a sentence and then suspend its operation upon the defendant entering into a recognisance to keep the peace and be of good behaviour for  a specified period.

Parts of sentences can also be suspended and Courts may also impose a sentence and make provision for the sentence to be reviewed after a period of time.


Imprisonment is proved for a wide range of offences so the penalties for a  specific offence will need to be looked at. Most offences provide for a fine and/or imprisonment.


Other statutes, eg Road Traffic Acts, Criminal Justice Act, 1994 provide for orders such as disqualification, endorsement of licence, confiscation, forfeiture.

Read more about criminal law in Ireland.

Criminal Law

Bail In Criminal Law In Ireland

Before looking at bail and how it is used in the criminal prosecution system in Ireland, lets first take a look at what bail is.

Bail is seldom refused in Ireland

Bail is the releasing of a person from custody in return for which the accused person undertakes to pay a sum of money to the court if he does not appear at the next court sitting to which he is remanded.

When bail is granted to the accused person he enters into a recognisance (guarantee)that he will show up in court at the appointed date and will abide by any terms and conditions which might be part of his bail bond.

An application for bail can be made at the District Court sitting to which he is returned if he has not been released on station bail.

The seminal authorities in Ireland in relation to access to bail are The Bail Act, 1997 and O’Callaghan’s case.

There are certain offenses such as murder for which bail can only be obtained in the High Court.

Bail And Criminal Prosecution In Ireland

Station Bail After Being Arrested

If you are charged with a criminal offense in a Garda station after being arrested you may be eligible to be released on station bail.

After being given the charge sheet which sets out the offences for which you are being charged you will be released on “station bail” provide there are not outstanding warrants out for your arrest.

You will be entering a guarantee on your behalf, called a recognisance, to appear at the next sitting of the District Court; if you don’t appear this is a criminal offence which can attract a prison sentence of up to 12 months and the Judge will issue a bench warrant for your arrest.

Serious offences will render you ineligible for station bail and you will have to apply to the High Court with a bail application for such offences as murder.

See also-Types of criminal offences in Ireland

If you are not given station bail then you can apply at the District Court at which you next appear for release on bail and the Judge is obliged to grant you bail provided you are not charged with a section 29 of the Criminal Procedure Act, 1967 offence such as murder and new organized crime offences from the Criminal Justice Act, 2007 such as participation in organized crime, conspiracy to commit a serious offence and other organized crime related offences.

Applying to the High Court for bail

Since the bail referendum in Ireland in 1996 the High Court can refuse your application for bail if it is of the view that it is necessary to prevent the commission of a further serious offence.

The Bail Act of 1997 sets out the criteria the court must consider when considering a bail application and in coming to their decision as to the likelihood of the commission of a further serious offence.

The guiding criteria include

  • The seriousness of the offence with which you are charged
  • The evidence in support of the charge
  • Any previous convictions
  • Whether you are addicted to a controlled drug.

The Bail Act of 1997 lists the offences that are considered to be “serious offences” and this is a large list ranging from shoplifting offences to road traffic offences to murder and the offence must be punishable by a prison sentence of at least 5 years.

O’Callaghan’s Case

The People v O’Callaghan is a Supreme Court decision in 1966 which still applies today and this case set out a number of considerations which a court should consider when deciding whether an accused should be granted bail.

All of these considerations are to assist in assessing the likelihood of the accused person trying to evade justice and consequently being refused bail.

O’Callaghan’s case recognized the presumption of innocence of the accused and that the primary purpose of granting bail is to secure the attendance of the accused to meet the charges.

It is up to the prosecution to show that the accused is likely to attempt to evade justice if granted bail.

The Bail Act 1997

One of the key sections of the Bail Act 1997 is section 2 which allows the refusal of bail where a person is charged with a serious offence and where the court considers it necessary to refuse bail in order to prevent the commission of a serious offence by the accused if granted bail. (A serious offence is an offence which is punishable by at least 5 years imprisonment).

Once bail is granted any terms and conditions are set out in a recognisance (which must be signed by the accused person) which is an acknowledgement by the accused of the terms and conditions and of his obligation to show up in court at the next appointed date.

Criminal Law

Types of Criminal Offence In Ireland-Summary, Indictable and Hybrid and Criminal Legal Aid Essentials

criminal offense ireland

There are two broad categories of criminal offences recognised in Ireland-summary offences and indictable offences.

Summary offences

Summary offences are dealt with by the summary procedure in the District Court and are minor offences.

What are minor offences?

Minor offences are not defined in the Constitution or in the statute books but generally minor offences are offences which attract a penalty of 12 months imprisonment or less and a fine of £2,000 (or euro equivalen) or less.

When summary offences are dealt with in the District Court there is no jury present-the sitting Judge decides the case on his/her own.

Generally the procedures leading up to the prosecution of a summary offence are relatively fast and informal although the case of DPP v Gary Doyle in 1994 has led to a procedure where the prosecution is obliged to let the defendant have the statements and other evidence that the prosecution will be relying on in the case when an indictable offence is being dealt with summarily.

The decision of the Supreme Court in DPP v Gary Doyle has meant the full disclosure of evidence and statements which will be relied upon to secure a conviction and has led to the “Gary Doyle order” being sought by defence solicitors from the District Court judge. These orders are generally made as a matter of course when an indictable offence is being prosecuted summarily in the District Court.

It is possible to have a summary offence tried on indictment and this will occur where it is one of a number of offences arising from the same set of circumstances and the other offences are being tried on indictment before a jury in a higher court.

Indictable offences

Indictable offences are offences that can be tried on indictment but some offences are so serious that they must be tried on indictment. Example of these offences include rape, manslaughter and murder.

There is another category of offences which are called “hybrid offences” and these offences can be tried summarily or on indictment on the choice of the Director of Public Prosecutions but must have the agreement of the District Court judge on this point.

As well as the serious offences mentioned above there is another category of offence which must be tried on indictment and these are called “scheduled offences”.

This schedule of offences is listed in the Criminal Justice Act 1951 but subsequent legislation has permitted the disposal of scheduled offences in the District court provided three conditions are met:

1)      The offence could be considered a minor offence given the facts of the case

2)     The accused is happy to be tried summarily in the District Court

3)     The DPP is satisfied to have the matter tried summarily

Section 53 of Criminal Justice (Theft and Fraud offences) act 2001:

53.—(1) The District Court may try summarily a person charged with an indictable offence under this Act if—
(a) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily,
(b) the accused, on being informed by the Court of his or her right to be tried with a jury, does not object to being tried summarily, and
(c) the Director of Public Prosecutions consents to the accused being tried summarily for the offence.
(2) On conviction by the District Court for an indictable offence tried summarily under subsection (1) the accused shall be liable to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both such fine and imprisonment.

Offences that may be tried summarily on a plea of “guilty”

The Criminal Procedure Act, 1967, section 13 makes provision for an indictable offence being dealt with summarily in the District Court on a plea of guilty only. In other words, if you want to plead “not guilty” the case will be dealt with in the Circuit Court on indictment.

The DPP must indicate that he will accept a plea of guilty in the District Court.

You will also see from the section 13 (2) (a) and 13(2)(b) below that there is a procedure for a written plea of “guilty” in the District Court with the defendant being sent forward for sentencing in a higher court. This is known as the “signed written plea procedure”.

13.—(1) This section applies to all indictable offences except the following—an offence under the Treason Act, 1939 , murder, attempt to murder, conspiracy to murder, piracy or a grave breach such as is referred to in section 3 (1) (i) of the Geneva Conventions Act, 1962 , including an offence by an accessory before or after the fact.
(2) If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged, the Court may—
(a) with the consent of the Attorney General, deal with the offence summarily, in which case the accused shall be liable to the penalties provided for by subsection (3), or
(b) if the accused signs a plea of guilty, send him forward for sentence with that plea to a court to which, if he had pleaded not guilty, he could lawfully have been sent forward for trial.
(3) (a) On conviction by the District Court for an offence dealt with summarily under subsection (2) (a), the accused shall be liable to a fine not exceeding £100 or, at the discretion of the Court, to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment.
(b) In the case, however, of an offence under section 11 of the Wireless Telegraphy Act, 1926 , the District Court shall not impose a fine exceeding £10 or a term of imprisonment exceeding one month.
(4) (a) Where a person is sent forward for sentence under this section he may withdraw his written plea and plead not guilty to the charge.
(b) In that event, the court shall enter a plea of not guilty, which shall have the same operation and effect in all respects as an order of a justice of the District Court sending the accused forward for trial to that court on that charge, and the Attorney General shall cause to be served on him any documents required to be supplied to the accused and not already served.
(5) This section shall not affect the jurisdiction of the Court under section 2 of the Criminal Justice Act, 1951 .


Hybrid offences

There is a third category of offence in criminal law in Ireland-hybrid offences.

Hybrid offences are offences which can be tried either way, that is by summary procedure in the District Court or on indictment in the higher courts.

The choice of venue and how the offence is to be prosecuted is a matter for the DPP in the first instance but if he chooses to prosecute the crime in a summary procedure the District Court Judge must be satisfied that the offence is a minor one or he will refuse jurisdiction.

The matter will then be  sent to a higher court for trial.

Criminal Legal Aid In Ireland

The primary source of criminal legal aid in Ireland is the Criminal Justice (Legal Aid) Act 1962 which was enacted in order to provide legal aid to those who could not afford it.

It is normally referred to as the free legal aid scheme as it was introduced to assist indigent accused persons who otherwise would have been denied legal representation.

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.

The first condition above is essentially a means test which the Judge will carry out in court by asking some questions of the accused such as “are you working” or “in receipt of social welfare”?

Different judges take slightly different attitudes to the granting of a legal aid certificate but generally if you are earning less than €400 per week you will have a good chance of being granted free legal aid.

The Judge may ask the Gardai about their view in this regard also before making a decision and if the Gardai advise the court that the accuse person appears to have plenty of property or other information of this nature then you may have some difficulty in getting a free legal aid certificate.

You may be asked to fill out a statement of means form where the Judge is sceptical of the accused person’s answers or if the Gardai oppose the application for aid. Lying in this statement of means is an offence and is certainly not advisable.

Generally the “interests of justice” condition will depend on whether the accused is at risk of going to prison if convicted. If this is unlikely then you may not qualify for legal aid.

By the same token if you are facing an indictable offence charge then you are almost certain to be granted a free legal aid certificate.

Exceptional circumstances

Even where you are not at risk of going to jail if convicted, that is “at risk”, the exceptional circumstances of your case may persuade the Judge to grant a certificate. This might occur because of travel plans you may have or because a conviction may cause huge problems for you as a result  of your job or occupation, even if not imprisoned.

Other exceptional circumstances might be intellectual disability, not having English as your native tongue or mental illness or disability.

But the primary considerations centre on

1)      Your means

2)     Whether you are at risk of going to prison.

Interesting Supreme Court Decision in 2011 Concerning Legal Aid

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.

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.

Outline 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) Act 2001 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.

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.

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.”

It will be interesting to see the practical effect of this decision when solicitors apply in the District Court for legal aid certificates on behalf of clients.

This is part of the criminal law in Ireland series of articles.

Here is a link to the original decision on the Courts website.

Criminal Law

The Powers of the Gardai in A Criminal Investigation in Ireland

The powers of the Gardai in relation to investigating crime in Ireland are quite extensive.

Gardai investigative powers have increased in the last decade

These powers include the power to stop you and make reasonable inquiries, the power to stop and search and seize evidence, to enter and search your premises and of course the powers of detention and arrest.

The power to stop and make inquiries

A member of an Garda Siochana has the power to approach any member of the public to make inquiries.

The Supreme Court decision in DPP (Stratford) v Fagan (1994) also held that the Gardai have the power to stop motorists and make inquiries-even where they have not formed the opinion that the motorist has committed an offense.

Despite this decision the Gardai do not have the power generally to stop you merely to put questions to you.

The power to enter and search premises

The Gardai’s power to enter and search premises are limited to

1.  When they have a valid search warrant

2.  Where there is a statutory or common law power to enter without  a warrant (these circumstances are quite narrow, for example to attempt to assist if a building was on fire and people’s lives were at risk).

The Search warrant

A search warrant can be issued by a District Court judge or peace commissioner. The warrant will set out what is permitted and this may be the search of a person only, the search of a premises only or the search of both.

Senior officers of the Garda Siochana can also issue a search warrant in some circumstances.

Search warrants can not be issued willy nilly-the Guard seeking the warrant must swear “an information” that there are reasonable grounds for believing that an offense has been committed.

Searching of a person’s home

Entering and searching a person’s home is something that is jealously guarded by the Constitution of Ireland. Without a warrant any evidence obtained will be inadmissible in a subsequent prosecution unless there are extraordinary excusing circumstances.

Such circumstances would include a belief on the Guard’s behalf that it is necessary to safeguard life and limb.

If you are faced with a search warrant you should check it carefully to ensure that the right premises has been stated on the warrant and that whatever statutory power has led to the granting of the warrant has been strictly adhered to.

The Power To Stop and Search in Criminal Investigation

The Gardai have the power to stop and search a person under various pieces of legislation in Ireland. For example the Road Traffic laws, customs and excise laws and Misuse of Drugs Acts all confer this right.

It is important to note that when the Gardai do exercise this power the person who is stopped is entitled to know why and the specific piece of legislation under which they are being stopped and searched.

It is worth noting the anomaly thrown up by the Dublin Police act of 1842 which allows the Gardai to stop and search you on suspicion that you are in possession of stolen property.

But this law does not extend outside the Dublin Metropolitan district.

Power of search and seize

The Gardai have the power to search and seize, when they arrest a person, anything found on the person or at the place of arrest which they feel will be of evidentiary value in the subsequent prosecution of a crime.

This is a common law power but this power is also conferred by various pieces of legislation such as the Offences against the State act and Misuse of Drugs Acts. These pieces of legislation also confer the power on the Gardai to arrest a person who is found on a premises for which the Gardai have a search warrant.

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