Category: Criminal Law

Going to the District Court

Going to court is rarely pleasant. Even if you’re attending for a good reason, such as naturalisation or obtaining a licence, the courtroom retains the atmosphere of a place of justice, where issues of guilt are decided and penalties handed down.

If you are unfortunate enough to be summoned to court (see here for the difference between a summons and a charge sheet), there is a lot of good information available online.

  • The Courts Service has published useful general information on the courts system and on going to court. There is a separate publication and video for young witnesses.
  • The Director of Public Prosecutions has published a guide to attending court as a witness. The DPP’s guidelines for prosecutors also provide background information to the nature of criminal prosecutions in Ireland.
  • The Citizens Information website is an excellent resource with a range of information about the courts system and about particular offences and penalties.
  • The Irish Council for Civil Liberties has published a very useful guide to your rights in the context of the criminal justice system and garda powers.

For the ordinary citizen, the District Court is that which they are most likely to encounter. It generally deals with what can be considered to be less serious crimes and for civil cases with a value of up to €6,348.69. To take two common examples: one might have to attend the District Court for an alleged road traffic offence or in relation to a relatively small contractual dispute. (The Small Claims Court is, in fact, part of the District Court.)

The District Court also deals with certain family law matters, such as maintenance, domestic violence, guardianship, custody and access. The Court has a role in debt collection matters, as a judgment obtained in any court can be enforced in a District Court.

Newcastle West District Court
Newcastle West District Court

If charged with a crime at the upper end of the District Court’s jurisdiction, you are likely to have consulted a solicitor. This will usually involve a potential prison sentence and if a solicitor is not on record the District Judge will recommend that a solicitor be engaged. The Judge might invite the accused person to talk to one of the solicitors already in court. Legal aid may be applied for depending on the accused’s circumstances.

But what of less serious charges, like those arising from unpaid fixed charge notices or for non-display of tax or NCT discs? Is a solicitor required for a court appearance? The short answer is: no.

However:

  1. If you are not prepared to represent yourself in court you may wish to engage a solicitor. If you represent yourself, you might not have to do much talking but the courtroom can be a busy and intimidating place. Many people prefer to outsource the appearance to a solicitor. Engaging a solicitor does not guarantee you won’t have to speak: a judge can always ask you questions or swear you in to give evidence.
  2. If you are unsure as to your guilt or innocence, how to plead, whether the gardaí have complied with applicable requirements or whether your rights have been affected, you should discuss this with a solicitor. If wish to plead not guilty you can still appear in person and do it yourself.

Often, the main reason for engaging a solicitor is that a solicitor working in the district will be familiar with the practices and procedures of the local court and District Judge. (S)he will be able to advise on all aspects of court hearings in that District and how to prepare for an appearance. (S)he will also be able to provide guidance in relation to what penalties might be expected if found guilty.

Depending on the charge, previous record and the practice of the District Judge, it might not be necessary to attend court on the day if a solicitor is on record. If there is a valid reason why you cannot be in court on the day your charge(s) is to be tried, your solicitor can attend and seek an adjournment to a later date.

Engaging a solicitor is not a silver bullet and it is never possible to guarantee a particular outcome. Nevertheless, given that most people are unfamiliar with the courts system, there is a benefit in getting help from someone who appears in court on a regular basis.

Will less public justice mean more public suffering?

The Criminal Courts of Justice was the first major courts facility built in Ireland since the Four Courts in the late 1700s and, at a cost of €140 million, holds great promise for the contemporary administration of justice. A controversial consequence of the Court’s design is that accused persons are no longer led into court in public view, complicating the job of the court photographer.

It appears that the role of the media was not a significant factor in the design of the Courts. Abigail Rieley covered the Lillis trial and blogged about the facilities provided to journalists:

If you are a journalist however the new courts pose quite significant problems.  Once again the concept of designated seating for the media has been ignored and a single bench provided, if we’re lucky enough to get to it before someone else is sitting there. The new media rooms, which we had been promised such great things about, turned out to be two bunkers on the ground floor, next to the toilets.  Low ceilinged, with no windows whatsoever the new rooms are little more than boxes.

Difficulties with the facilities erupted into controversy during that trial when one witness was given extensive Garda co-operation to facilitate her arrival and departure from the Courts without being captured on film. It was suggested that the witness in question might not have given evidence but for the privacy provided. However, many pointed out that she was unlikely to be a crucial witness in the prosecution. Diarmuid Doyle notes the danger that the behaviour of the authorities in the Lillis trial may give rise to a hierarchy of witnesses (albeit this point appends what appears to be a misunderstanding of the argument that photography should be allowed to ensure the public administration of justice).

The restrictions on photographing accused and convicted persons appear to be spreading and the Courts Service has ruled out releasing mugshots. Paul Cullen quotes the Court of Criminal Appeal in the People (DPP) v. Davis [2001] 1 IR 146:

The dignity of the individual, and the perception that he is a participant in judicial proceedings with specific rights, and on a footing of equality with other participants, is inconsistent with his appearing there chained, manacled, handcuffed and chained, or otherwise manifestly restrained.

But what of a person found guilty of a crime? Rieley continued her criticism of the Courts in the Evening Herald under the provocative headline: “Why do the authorities care more about the privacy of criminals than the public’s right to know?“:

The media facilities have the feeling of a being a grudging after-thought, a sop to a group of pests who are barely tolerated at the best of times. This goes to the heart of the Courts Services’ attitude towards the press. The idea that the media are public representatives seems to be a foreign concept. Justice has to be carried out in public, as laid down in Article 34.1 of the Constitution and it’s through journalists that this happens in the main.

A further concern is that, with no accused person to photograph, the lens will be turned on someone else. A small example of this appeared on the Nine News on 19 February, when a remarkably brave victim of rape waived the anonymity available to victims of sexual assault and made a statement to the media.

The convicted offender could not be filmed, so the report relied on file footage and newspaper photographs. The victim made her statement direct to camera and yet this was, apparently, not enough. She was pursued to the door of a waiting car and filmed until it drove away.

Endnote:

  • The Irish Times, on the opening of the Courts, said that “[p]eople charged with criminal offences will no longer be brought to court handcuffed and in public view”. The change was widely reported as such though it should be noted that female prisoners, even when accused of serious and violent crime, are rarely handcuffed when being led into jail. John Waters has written about the sexism inherent in this practice.

Everyday justice

Since the conclusion of the Lillis trial, there has been renewed media and public interest in judicial decision making, particular as it relates to sentencing.

Understandably, national media and popular interest is heightened in high profile cases like murder. District Courts handle a greater volume of offences, most of a comparably minor nature, and regional newspapers cover those District Courts in great detail. It is anecdotally thought that such court reports are a popular feature.

For the average citizen, an appearance in their local District Court is far more probable (though not exactly more desirable) than an appearance in the Central Criminal Court. Regional court reports are a useful guide to what one penalty one might expect to receive for driving without a valid tax or NCT disc, for public order offences or for violations of environmental or planning regulations.

Ian O’Donnell‘s article in today’s Irish Times summarises the nature of judicial decision making in arriving at sentencing decisions in the District Courts and notes the importance of regional newspapers in documenting them. He observes that the reports tend to be neutral and dispassionate in style, unlike the often highly charged reports of serious crime in the national media.

In documenting outcomes, regional newspapers enhance the public administration of justice. They also reflect what Mr. O’Donnell terms the judges’ “optimistic view of human nature”, something that might not be popular with the law and order element of Irish society but which suggests judges are far less out of touch than is often claimed and are, in fact, acutely aware that many court appearances result from oversight, foolishness or societal factors.

As a group, judges seemed to attribute behaviour to internal, controllable and stable causes. Yet, contrary to what the academic literature would predict, they did not inflict harsh penalties as a result. This departure from what might have been expected is explained by the existence of a strong belief in the capacity of individuals to redeem themselves.

Demonstrating their belief in redeemability, judges were prepared to suspend prison sentences, or adjourn cases that could have led to a custodial sentence, to give the defendant an opportunity to demonstrate willingness to reform. They used the Probation Act and the court poor box to enable first-time or minor offenders to walk away without a conviction.

The guilty party was regularly offered a second chance, putting the onus on them to change. This was accompanied by a warning that the response would be harsher on any future occasion. These practices were designed to create a relationship of trust between the offender and the judge […]

An examination of local newspaper coverage suggests that these variations are rooted, to some extent at least, in an optimistic view of human nature. This is to be welcomed. The continued existence of a faith in the capacity of the individual law-breaker to choose another path may offer some protection against the rise in punitiveness that has become so evident in other jurisdictions.

Why these calls for the death penalty?

For reasons unknown, the reintroduction of the death penalty in Ireland has become something of a hot topic.

First, a recently retired and highly respected High Court judge calls for its reintroduction so that certain types of murderers “pay the price”. Then, John O’Keefe (Dean of Law at the Dublin Business School) agrees, referring to uncited research which apparently demonstrates the deterrent effect of the death penalty. His contribution is highly charged, with populist statements that range from the vague:

In truly civilised countries, murder means murder.

to the gung ho:

One thing of which we can be certain is that the murderer who receives a lethal injection is now deterred for good. It’s called permanent incapacitation and it always works.

He also raises the old chestnuts of criminals getting off on a technicality and enjoying greater comforts in prison than at home, and refers dismissively to “rehabilitation aficionadoes”.

Now, county councillors from Fianna Fáil and the Green Party have chimed in, despite their lack of a role in national matters concerning criminal justice or the constitution.

Speaking at the January meeting of the Mid-West Regional Authority in Ennis, Co Clare, Cllr PJ Kelly (FF) said that the fear of punishment for crimes among criminals no longer existed.

Mr Kelly said: “I believe that there will be a demand before long for the reintroduction of the death penalty for certain offences. I would support a public debate on the issue.”

Supporting Mr Kelly’s call for a debate on the matter, Cllr Brian Meaney (Green) said: “A debate on the reintroduction of the death penalty is something that would put the focus on the issue of crime and punishment.”

There is a moral argument against the use of the death penalty which people either agree with or they don’t. But many of those calling for its reintroduction do so in apparent ignorance of or disregard for our international obligations and recent history. The attitude of the European Union to the death penalty, for example, can be gleaned from the fact that it marks an annual European day against the death penalty.

The history of the death penalty in Ireland was neatly summarised by the Irish Times when reporting on Mr. Justice Richard Johnson’s comments:

The last person executed in Ireland was in 1954, when Michael Manning was hanged, with the sentence being carried out by English official hangman Albert Pierrepoint. No further executions were carried out and it was abolished in law in 1990.

The abolition of capital punishment is also a condition of EU membership and exists in a protocol to the European Convention on Human Rights, to which Ireland is a signatory.

The 21st amendment inserted [in 2001] a clause preventing the Oireachtas from reintroducing the death penalty without a further referendum. It was passed in a referendum held the same day as the first Nice referendum by 62 per cent of those who voted, with 38 per cent voting against the ban.

In summary:

  1. Executions by death penalty were possible in Ireland until 2001.
  2. The last execution carried out was in 1954.
  3. A public debate and national referendum on the death penalty was carried out within the last decade and resulted in an overwhelming majority of the Irish electorate agreeing to its abolition.
  4. Reintroducing the death penalty would require Ireland to leave both the European Union and the Council of Europe.
  5. Reintroduction of the death penalty would, instead, join us with a colourful club of nations.

There appears no serious reason for this debate to be held at the present time and, Mr. Justice Johnson aside, can only be explained by “law and order” politics.

Gangland law: crime fighting tool or gimmick?

Two recent Government initiatives were introduced largely for the benefit of Limerick City: Limerick Regeneration and the Criminal Justice (Amendment) Act 2009. It will take some time before the benefits of Limerick Regeneration can be known, but what about the Act?

There are two important and incontrovertible facts about the Criminal Justice (Amendment) Act 2009.  First: it made significant changes to the nature of Irish criminal law.  Second: it was railroaded through the Oireachtas with no meaningful debate.  If the Government were to attempt any equally fundamental change to the health service or education sector, to take two examples, the howls of protest would emphasise the lack of consultation with those working at the coal face.

Of course, our Oireachtas and Government do not always proceed with such haste in implementing new policies.  Take the example of the amalgamation of cultural institutions, for which it appears thorough preparatory work is necessary before implementing legislation is ready.

On the week in which the Criminal Justice (Amendment) Bill 2009 was subject to much media comment, Minister Martin Cullen stated in the Seanad that he had initiated various forms of consultation relating to reform of our cultural institutions and that we should not “rush down this road for the sake of doing so.”  Quite reasonably, the Minister “want[ed] to take great care in ensuring that whatever outcome we have is the one that works best nationally and internationally for our institutions.”

Without wishing to trivialise our cultural institutions, Minister Cullen was trying to streamline the administration of a handful of galleries.  Minister Ahern has introduced a law which a large number of our leading criminal lawyers have said is unnecessary, probably unconstitutional, will “jettison ancient rights and rules of evidence” and has been introduced “without any research to support its desirability and without canvassing expert opinion or inviting contribution from interested parties”.

These concerns were met with tirades against the legal profession, soundbites about the supposed primacy of the rights of “criminals” over those of “innocent people” and facile barbs about lawyers’ fees and judges’ pension contributions.  The Irish Times ran an editorial including the remarkably dismissive conclusion that “[i]t would have been helpful, and more useful, if these practitioners had offered their alternative to deal with a serious problem”, content with the pretence that any such alternative would have survived the Government’s guillotine.

A number of sensationalist arguments were put forward to justify the necessity of the legislation, summarised by this year’s Phoenix Annual as follows:

[i] that jurors had been intimidated; [ii] that a tiny minority of solicitors had passed on inappropriate information to criminals; and [iii] that a solicitor had passed on names and addresses of jurors to criminals

These allegations, once subjected to analysis since the passing of the Act, have been “whittled down to just one allegation: that one solicitor had passed on inappropriate information.” The Gardaí investigated this allegation and, according to the Phoenix, the DPP decided that there were no grounds for a prosecution. The Law Society then carried out its own investigation.

A fortnight ago the Law Society concluded, following over three months of inquiries … that there was no evidence at all against [the solicitor accused of passing on inappropriate information] to justify any allegation of wrong doing.

So, it now appears that none of these allegations stand up.

Media reports prior to the passing of the Act contained strong suggestions from informed sources that the Gardaí were lying in wait for criminal gangs, prepared to pounce once the Act was commenced. Indeed, when the President signed the Act into law, Minister Ahern stated: “I know that the Gardaí are determined to use these provisions to the full.”

This does not appear to have happened and it has been reported that no arrests have been made under the new legislation. The Sunday Tribune reported last week:

no gangland figures have been arrested on suspicion of controlling a crime gang or membership of a gang. While it is expected that the DPP will take several months to consider any garda file that recommends criminals being charged under the new laws, the fact that no gangland bosses have been quizzed means that no garda files are near completion. Pat Rabbitte, Labour’s justice spokesman, said the fact the legislation has not been used proved justice minister Dermot Ahern’s plans to tackle gangland crime were “a gimmick” and “a stunt”.

This is what was feared all along: the legislation was another attempt to paper over a crack in society with legislation that was likely to achieve little in targeting serious crime but which raised valid civil liberties concerns.

In fairness to the Minister, it will take longer than a few months to evaluate the usefulness of the Act. But the speed at which it was introduced has been revealed as unnecessary and the arguments in support of the legislation have been largely debunked.