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.