101 statement giving - Help the noob

imanon

I'm asking here because this is a irish website, so i guess you know the rules over here. I just need to clear something basic up and get things straight in my own head.

Ok, I'll be giving in a statement to the garda (a file is being prepared, against me i think) within the next few days.

I intend to counter-claim that A and B happened to me, do i have to tell the garda that i want to counter claim or "a complaint" during/before/after my statement is being taken, or is that decision made by someone else (DPP, prosecuting garda, the milkman)?

Thanks in advance

detective

If A and B form part of the same incident (or even different incidents involving the same people) as the incident which you believe you are being investigated for then that's what the investigation will comprise of - both accounts. Your statement is merely one statement which will be taken. The local prosecutor (or DPP if it's very serious) will want it all in one investigation file instead of multiple files for multiple complaints. The Garda who is taking your statement will most likely (but doesnt have to be) the investigating Garda. Due to this he will be fully aware of the incident. There is no complaint and counter complaint system like there is on Judge Judy; rather the incident (or incidents if the same people are involved) will be looked at and all the facts gathered as one file. There is not one file to prosecute you and one to prosecute someone else. Its one file on its own and the Garda will outline his recommendations to prosecute whoever there is evidence to prosecute against based on all of your statements.

imanon

So the prosecuting garda makes the recommendation, DPP makes the decision and puts the ball rolling in a particular direction?

Do i not have any say or ability to accuse someone of something?

detective

imanon wrote: »

So the prosecuting garda makes the recommendation, DPP makes the decision and puts the ball rolling in a particular direction?

Do i not have any say or ability to accuse someone of something?

Prosecuting Garda always makes recommendation to their Sergeant who either agrees or disagrees and makes his/her own recommendation to the Superintendent or Inspector. If it's a summary (misdemeanor/not serious) matter then this is generally where it stops (No DPP involvement). The Superintendent or Inspector makes the decision. If its an indictable (felony/serious) matter then the Superintendent or Inspector write their recommendations to the DPP who makes the decision.

You can accuse someone of anything in your statement which will be taken into account by the Garda/Sergeant/Superintendent/DPP when they are making their decision. You can sue someone in a civil court and you can initiate these proceedings but you cannot initiate a criminal prosecution. That's up to the Garda Siochana and/or DPP.

imanon

Right i think i got it now.

Thank you

Mary Hairy

detective wrote: »

You can sue someone in a civil court and you can initiate these proceedings but you cannot initiate a criminal prosecution. That's up to the Garda Siochana and/or DPP.

A member of the public can initiate a criminal prosecution, as a common informer, under the Petty Sessions Ireland Act 1851. They simply have to lay an information before a judge of the District Court and have a summmons signed.

detective

The Petty Sessions Ireland Act 1851 is not ever used by Gardai although they can use it. As can a civilian as Mary hairy has pointed out. I've never seen it done. If you complained to a Judge in this way about an assault I'd be surprised if he didn't tell you to visit the Gardai instead. The English abolished this act in 1951.

Our man in Havana

It is still on the books thou. There are still similar procedures in the UK to lay informations and effect private prosecutions. It has been used in the past where the police failed/refused to prosecute certain crimes, e.g. there have been a few murders prosecuted by way of private prosecutions.

johnnyskeleton

detective wrote: »

The Petty Sessions Ireland Act 1851 is not ever used by Gardai although they can use it. As can a civilian as Mary hairy has pointed out. I've never seen it done. If you complained to a Judge in this way about an assault I'd be surprised if he didn't tell you to visit the Gardai instead. The English abolished this act in 1951.

The right to prosecute as a common informer is a common law one and predates the petty sessions act. It even predates police forces and goes back to the times when law was administered by a man with a big stick and the approval of the local lord.

Until 2005, all Gardai prosecuted as common informers in the district court. Under s.8 of the Garda Siochana Act of that year, they can no longer prosecute as common informer (unless it is in their spare time) and must prosecute on behalf of the DPP.

If a complaint is made by a non garda and the judge tells them to go to the gardai, the judge is likely to be exceeding his or her jurisdiction as a judge must accept a complaint if credible and a judge has no powers to direct how a complaint should be brought before the court.

There are more common informer cases than you'd think, usually neighbour disputes (noise, parking), busibodies (animal rights and environmental activists) and people who are dissatisfied with the manner in which the DPP is handling a case. A good example of the latter is the case of DPP v Cyril Hobson, where a private prosecution by the father of a young girl killed in a RTA spurred the DPP to charge the driver with dangerous driving causing death instead of summary charges.

detective

johnnyskeleton wrote: »

Until 2005, all Gardai prosecuted as common informers in the district court. Under s.8 of the Garda Siochana Act of that year, they can no longer prosecute as common informer (unless it is in their spare time) and must prosecute on behalf of the DPP.

If a complaint is made by a non garda and the judge tells them to go to the gardai, the judge is likely to be exceeding his or her jurisdiction as a judge must accept a complaint if credible and a judge has no powers to direct how a complaint should be brought before the court.

There are more common informer cases than you'd think, usually neighbour disputes (noise, parking), busibodies (animal rights and environmental activists) and people who are dissatisfied with the manner in which the DPP is handling a case. A good example of the latter is the case of DPP v Cyril Hobson, where a private prosecution by the father of a young girl killed in a RTA spurred the DPP to charge the driver with dangerous driving causing death instead of summary charges.

Prior to 2005 Gardai still made complaints to district court clerks and not judges unlike civilians who made them to judges.

In relation to judges not having jurisdiction... I once had a judge say to me in open court i brought a drink driving charge to court too quickly!!! He actually struck it out on that basis and I had to reenter the case to the subsequent district court sitting!! Gas ey!!

I never knew thats what happened in the Hobson case. The jury went on to find him not guilty in less than half an hour. Tragic case. All fatals are.

Jo King

detective wrote: »

The Petty Sessions Ireland Act 1851 is not ever used by Gardai although they can use it. As can a civilian as Mary hairy has pointed out. I've never seen it done. If you complained to a Judge in this way about an assault I'd be surprised if he didn't tell you to visit the Gardai instead. The English abolished this act in 1951.

The Garda do use the 1851 Act. It is the only way of having a summons issued against a member of the Garda.

johnnyskeleton

detective wrote: »

Prior to 2005 Gardai still made complaints to district court clerks and not judges unlike civilians who made them to judges.

There might be some confusion between prosecuting as a common informer (i.e. prosecuting in your own name as opposed to in the name of the DPP), and the procedure for applying for a summons. Even when applying for a summons under the courts act, gardai were technically common informers. They just had an extra power to apply for summons by administrative rather than judicial procedure.

detective wrote: »

In relation to judges not having jurisdiction... I once had a judge say to me in open court i brought a drink driving charge to court too quickly!!! He actually struck it out on that basis and I had to reenter the case to the subsequent district court sitting!! Gas ey!!

Interesting, was it by summons? Had the summons been served 2 weeks in advance? Was it a blood/urine sample and you hadn't the analysis certificate ready?

detective wrote: »

I never knew thats what happened in the Hobson case. The jury went on to find him not guilty in less than half an hour. Tragic case. All fatals are.

The DPP directed dangerous driving simpliciter and he was charged with that. His solicitor then wrote to the DPP saying that they would plead guilty. In the meantime, the father of the children brought a charge of dangerous driving causing death and the DPP changed his mind and proffered the latter charge and prosecuted it. He tried to prohibit his trial and failed. Bizzarely, by bringing the more serious charge against him he ended up with no conviction and no jail time, whereas District Court Judges will usually hammer someone who is convicted of dangerous driving where there was a death involved but not specifically charged.

While as you say these cases are tragic and the family were quite upset by the verdict, it does go to show that the DPP is usually right on these things.

detective

johnnyskeleton wrote: »

Interesting, was it by summons? Had the summons been served 2 weeks in advance? Was it a blood/urine sample and you hadn't the analysis certificate ready?

No, it was a breach of Section 49(4) on a charge sheet! Struck it out saying that I was putting the court under undue pressure and that I should be informed about the 30 day rule in relation to next district court sittings (which I obviously knew). Just delayed etc... bless him, we all have off days!