How long does a guard have to charge you with an offence?

Slippin Jimmy

Just wondering how long a guard has to charge you with an offence? Is it from the date they contact you or the date they you d the interview.

johnthemull

You Sound like a man with a weight on your shoulders
6 months in my opinion.
Know where you are at
Only solution
One day at a time
Hope it goes ok

Croc

Its covered here

http://www.citizensinformation.ie/categories/justice/criminal-law/criminal-trial/time_limitations.

It depends on the type of offence,

Summary i.e. District Court six months

Indictable No time limit, unless specific legislation provides one.
however "Justice Delayed, Justice Denied" can come into effect

MagicSean

What about hybrid offences? I presume they are the same as indictable offences because the defendant can choose wether they wish to have it dealt with sumarily or not?

Also I heard that one of the recent Criminal Justice Acts extended certain summary offences to one year. Is there any truth to this?

detective

k_mac wrote: »

What about hybrid offences? I presume they are the same as indictable offences because the defendant can choose wether they wish to have it dealt with sumarily or not?

Also I heard that one of the recent Criminal Justice Acts extended certain summary offences to one year. Is there any truth to this?

yes there is one year to prosecute for all hybrid offences.

Tom Young

detective wrote: »

yes there is one year to prosecute for all hybrid offences.

What's a hybrid daddy? http://www.irishstatutebook.ie/2001/en/act/pub/0050/sec0053.html#partviii-sec53

Croc

Dam you beat me to it Tom :mad:

detective

Tom Young wrote: »

What's a hybrid daddy? http://www.irishstatutebook.ie/2001/en/act/pub/0050/sec0053.html#partviii-sec53

This only covers the 2001 Theft/Fraud Act. I'm coming back with my tail between my legs here. I know you have 12 months to apply for a summons in all hybrid offences but I can't find the legislation anywhere?

Croc

Criminal Justice Act 2006, Section 177.

johnnyskeleton

detective wrote: »

yes there is one year to prosecute for all hybrid offences.

As Croc says, s.177 but it doesn't give one year it removes all time limits.

As did the case of GG v. DPP (or DPP v GG) which said that indictable offences are always indictable offences, even when tried summarily. Contrast that with Gary Doyle v DPP, where the court said that an indictable offence tried summarily is by its nature less serious and requires less formalities.

I sometimes wish the Supreme Court would make up their minds and not just do whatever is expedient for the State.

Reloc8

k_mac wrote: »

What about hybrid offences? I presume they are the same as indictable offences because the defendant can choose wether they wish to have it dealt with sumarily or not?

Also I heard that one of the recent Criminal Justice Acts extended certain summary offences to one year. Is there any truth to this?

Correct (re hybrids) - they are indictables. The only difference is whether the accused has a right to elect for trial before a jury or not.

Regarding time limits for summary there are a whole rake of specific summary offences, too numerous to list here, which can be instituted within 1 year, or even 2 years. Frequently the time will only run where the reason for the charge comes to the attention of the prosecuting authority. A lot of these are offences prosecuted by someone other than the DPP but not all.

detective wrote: »

yes there is one year to prosecute for all hybrid offences.

No, they are indictables.

detective wrote: »

This only covers the 2001 Theft/Fraud Act. I'm coming back with my tail between my legs here. I know you have 12 months to apply for a summons in all hybrid offences but I can't find the legislation anywhere?

No need for your tail between your legs at all, but in case of all indictables, there is no time limit.

johnnyskeleton wrote: »

As Croc says, s.177 but it doesn't give one year it removes all time limits.

As did the case of GG v. DPP (or DPP v GG) which said that indictable offences are always indictable offences, even when tried summarily. Contrast that with Gary Doyle v DPP, where the court said that an indictable offence tried summarily is by its nature less serious and requires less formalities.

I sometimes wish the Supreme Court would make up their minds and not just do whatever is expedient for the State.

To be fair these cases address completely different issues. GG concerns time limit within which proceedings can be lawfully instituted, and arises from a very strict interpretation of the relevant legislation. Gary Doyle concerns the extent to which disclosure is necessary, and the contrast is drawn between a charge in the District Court where a max sentence is 12 months and a charge in the Circuit Court where life sentences can apply.

detective

And what about simple possession drug offences, are these 12 months? That's certainly the belief in the Gardai but again I can't find the legislation on it???

Reloc8

Its an indictable and covered by S. 177 Criminal Justice Act 2006. That section states that the s. 10 Petty Sessions (Ireland) Act limit (of 6 months) shall not apply to offences triable on indictment at the election of the prosecution, in other words shall not apply to all indictables (or to the offences scheduled to that act).

detective

Reloc8 wrote: »

Its an indictable and covered by S. 177 Criminal Justice Act 2006. That section states that the s. 10 Petty Sessions (Ireland) Act limit (of 6 months) shall not apply to offences triable on indictment at the election of the prosecution, in other words shall not apply to all indictables (or to the offences scheduled to that act).

I've just seen Section 27 Misuse of Drugs Act 1977 and learned that Section 3 Simple Possession is actually an indictable offence (even for 1st time possession of Cannabis) and I can honestly say I never knew that. But can someone explain pages 15-17 of this report where the author (a fairly distinguished person in our criminal justice system) appears to say that it is triable only summarily in the district court???

http://www.jsijournal.ie/html/Volume%206%20No.%201/6%5B1%5D_O'Donnell_Summary%20v%20Indictable.pdf

Croc

detective wrote: »

I've just seen Section 27 Misuse of Drugs Act 1977 and learned that Section 3 Simple Possession is actually an indictable offence (even for 1st time possession of Cannabis) and I can honestly say I never knew that. But can someone explain pages 15-17 of this report where the author (a fairly distinguished person in our criminal justice system) appears to say that it is triable only summarily in the district court???

http://www.jsijournal.ie/html/Volume%206%20No.%201/6%5B1%5D_O'Donnell_Summary%20v%20Indictable.pdf

Section 27 (1) (b) (ii) seems to contradict that assertion.

(ii) on conviction on indictment, to a fine not exceeding fifteen hundred pounds or, at the discretion of the court, to imprisonment for a term not exceeding seven years, or to both the fine and the imprisonment."

Reloc8

detective wrote: »

I've just seen Section 27 Misuse of Drugs Act 1977 and learned that Section 3 Simple Possession is actually an indictable offence (even for 1st time possession of Cannabis) and I can honestly say I never knew that. But can someone explain pages 15-17 of this report where the author (a fairly distinguished person in our criminal justice system) appears to say that it is triable only summarily in the district court???

http://www.jsijournal.ie/html/Volume%206%20No.%201/6%5B1%5D_O'Donnell_Summary%20v%20Indictable.pdf

The line which states that s. 3 MUDA is summary only is incorrect.

detective

I think it was summary only when the original act was written in 1977 but maybe it changed in 1984 (Section 6 Misuse of Drugs Act 1984).

johnnyskeleton

Reloc8 wrote: »

To be fair these cases address completely different issues. GG concerns time limit within which proceedings can be lawfully instituted, and arises from a very strict interpretation of the relevant legislation. Gary Doyle concerns the extent to which disclosure is necessary, and the contrast is drawn between a charge in the District Court where a max sentence is 12 months and a charge in the Circuit Court where life sentences can apply.

But surely the nature of a indictable offence tried summarily offence should remain the same.

i.e. if they are saying that the State get the benefit of the indictable offence's lack of a time limit when it is tried summarily, why does the accused not get the benefit of full disclosure?

If this can be explained because of the maximum sentence in the District Court, surely then GG was incorrectly decided in that the lower maximum sentence should mean that there must be strict time limits enforced, no?

Essentially, the Supreme Court in one case is saying that an indictable offence is still an indictable offence, even when tried summarily; in the other case they are saying that when an indictable offence is tried summarily, it is not as serious as a "real" indictable offence and so can be afforded a lesser standard of fair procedures. In both cases, the nature of an indictable offence tried summarily is determined whichever way favours the State.

Do you not see a fundamental problem in this?

johnnyskeleton

detective wrote: »

I think it was summary only when the original act was written in 1977 but maybe it changed in 1984 (Section 6 Misuse of Drugs Act 1984).

Yup:

http://www.irishstatutebook.ie/1984/en/act/pub/0018/sec0006.html#zza18y1984s6

Changed AFAIK because of problems arising where someone was sent forward on a 3 and a 15

Reloc8

johnnyskeleton wrote: »

But surely the nature of a indictable offence tried summarily offence should remain the same.

i.e. if they are saying that the State get the benefit of the indictable offence's lack of a time limit when it is tried summarily, why does the accused not get the benefit of full disclosure?

If this can be explained because of the maximum sentence in the District Court, surely then GG was incorrectly decided in that the lower maximum sentence should mean that there must be strict time limits enforced, no?

Essentially, the Supreme Court in one case is saying that an indictable offence is still an indictable offence, even when tried summarily; in the other case they are saying that when an indictable offence is tried summarily, it is not as serious as a "real" indictable offence and so can be afforded a lesser standard of fair procedures. In both cases, the nature of an indictable offence tried summarily is determined whichever way favours the State.

Do you not see a fundamental problem in this?

No. The bit in bold is more or less accurate although I would put it that a case tried summarily is tried with less formality attached to the disclosure requirement. There's a practical element to this. A shoplifting is indictable triable summarily. You wouldn't suggest that the disclosure requirement for the hearing of that charge should be the same as the theft of a wheelbarrow full of diamonds surely ? Or any other amount of other more serious offences. Similarly you wouldn't expect the police to investigate both offences in the same way.

Summary trial is just that - summary trial. If it wasn't the already creaking district court would grind to a halt as would an garda siochana. Imagine trying to set up disclosure along the lines of a jury trial for every indictable offence triable summarily....

Bear in mind that summary trial is only used for 'minor offences which are fit to be tried summarily'.

Bear in mind also that the prosecution retains the onus of proof beyond a reasonable doubt. Failings/shortcomings/weaknesses in disclosure or an investigation which are pointed out by the defence will always be useful in raising doubt.

MagicSean

Doesn't the defence have some say when they go on election?

johnnyskeleton

Reloc8 wrote: »

No. The bit in bold is more or less accurate although I would put it that a case tried summarily is tried with less formality attached to the disclosure requirement.

Yes. Summary proceedings are a way of quickly dispatching with minor offences. So, if there can be shortcuts as regards fair procedures, doesn't it make sense that summary proceedings of an indictable offence (i.e. a quick way of dealing with a more serious offence) are treated just the same as any purely summary offence, shouldn't they be subjected to the same safeguards as summary offences i.e. 6 month time limit?

Reloc8 wrote: »

There's a practical element to this.

There's a practical element to the petty sessions time limits too - they serve to keep the whole thing turning over as quickly as possible and give citizens a safeguard against summary conviction.

Reloc8 wrote: »

A shoplifting is indictable triable summarily. You wouldn't suggest that the disclosure requirement for the hearing of that charge should be the same as the theft of a wheelbarrow full of diamonds surely ?

Well if shoplifting tried summarily had all the hallmarks and safeguards of any other summary offence I'd have no problem with it. But they can bring a shoplifting case long after the 6 months period. The basic question of principle is what is an indictable offence tried summarily, is it a summary matter or an indictable matter? The courts have said that it is summary when it suits the prosecution and indictable when it suits the prosecution. The accused cannot avail of the safeguards that a normal summary trial would bring, nor can the accused avail of the safeguards that an indictable offence would bring.

So yes, if you are prosecuting someone summarily for a minor indictable offence in respect of which they have a right of election, the accused should be given full disclosure of the likely contents of the book of evidence. Otherwise how can they fairly elect their mode of trial? It's not just me who thinks that, Mr. Justice O'Hanlon in O'Driscoll v Wallace was of the same view.

Reloc8 wrote: »

Or any other amount of other more serious offences. Similarly you wouldn't expect the police to investigate both offences in the same way.

The problem I have is that they can do a sloppy summary investigation but can take their time with it as though it were an indictable matter. You really can't see how the Supreme Court endorsing this position is fundamentally flawed?

Reloc8 wrote: »

Summary trial is just that - summary trial. If it wasn't the already creaking district court would grind to a halt as would an garda siochana. Imagine trying to set up disclosure along the lines of a jury trial for every indictable offence triable summarily....

First of all, every criminal prosecution can be a serious matter for the person accused, especially indictable offences tried summarily because, while they may not result in a prison sentence, they could result in a very serious conviction against a person's good name.

Reloc8 wrote: »

Bear in mind that summary trial is only used for 'minor offences which are fit to be tried summarily'.

Bear in mind also that the prosecution retains the onus of proof beyond a reasonable doubt. Failings/shortcomings/weaknesses in disclosure or an investigation which are pointed out by the defence will always be useful in raising doubt.

That's all very well in theory, but in practice what is a solicitor to do with a client who wants to know if they can fight a case based on the proofs. From the two line precis of evidence the solicitor tells them that there are proofs missing, only for the prosecution on the day to turn up with a much more detailed account and the accused will have to run the case to even see if there are any points to challenge it on.

Even worse, a solicitor has to tell a client that they simply don't know whether the state can prove their case or not based on the inadequate disclosure, and many people end up pleading guilty to a matter in respect of which they may have a good technical defence.

k_mac wrote: »

Doesn't the defence have some say when they go on election?

That is the argument alright, that they should be given disclosure in like manner as the book of evidence in order to properly decide whether to elect. This should be done automatically but is rarely done without some serious pulling teeth.

MagicSean

johnnyskeleton wrote: »

That is the argument alright, that they should be given disclosure in like manner as the book of evidence in order to properly decide whether to elect. This should be done automatically but is rarely done without some serious pulling teeth.

Probably because of the time it takes to put a book of evidence together. Not really worth it if the person is being tried for stealing a €15 pair of shoes.

johnnyskeleton

k_mac wrote: »

Probably because of the time it takes to put a book of evidence together. Not really worth it if the person is being tried for stealing a €15 pair of shoes.

Then don't prosecute.

MagicSean

johnnyskeleton wrote: »

Then don't prosecute.

How does that make for a useful justice system?

detective

johnnyskeleton wrote: »

Then don't prosecute.

I can assure you that not only would the Guards not prosecute after 12 months, or even 6 if the deciding officer was particularly sticky, but the investigating Guard would be disciplined also for not prosecuting on time. This is a regular enough occurrence. I believe there was a Garda HQ circular recently enough (2007 or 2008) on the issue giving a direction on this also.

Johnnyskeleton raises some great points but both statute and case law have spoken on this issue and they appear to be with the side of the State. I do agree with Johnnyskeleton though that there should be some middle ground set in stone between 6 months and infinity - it's wrong that the State in theory (although never in practice) can prosecute years after a minor indictable offence has occurred.

Reloc8

The law won't permit years between a minor offence being tried and it being committed (absent any devious behaviour on the part of the defendant). While theoretically there is no time limit, in point of fact for both indictable and summary offences the right to fair procedures requires trial in due course of law with reasonable expedition.

Current case law on trials on indictment suggests it is necessary for the accused to show a specific prejudice arising from inordinate and inexcusable delay. It is not necessarily certain that that is so regarding summary trial, i.e. there is less tolerance of inordinate and inexcusable delay. The infinite period within which prosecution can be commenced is therefore theoretical only.

Jo King

In any shoplifting case I have been involved in, the culprits were always caught on the spot. There is no trouble getting a comprehensive "Gary Doyle order" and disclosure of CCTV footage. I can see no advantage to the accused in having a full book of evidence. In fact the chances of escaping conviction would go down as the prosecution would be much less likely to slip up and fail to prove some essential ingredient in evidence if they had to prepare a book of evidence.

johnnyskeleton

k_mac wrote: »

How does that make for a useful justice system?

It depends on what you mean by useful justice system. If you mean a democratic process whereby no one is convicted unless there is proof beyond reasonable doubt, then in no circumstances should a prosecution be brought unless proof capable of belief beyond reasonable doubt should be brought.

If you believe a useful justice system is that whatever a garda says is gospel, then no, you don't need full disclosure, or lawyers, or even courts.

Take your pick. Either we have proof beyond reasonable doubt and fair procedures or we don't.

detective wrote: »

I can assure you that not only would the Guards not prosecute after 12 months, or even 6 if the deciding officer was particularly sticky, but the investigating Guard would be disciplined also for not prosecuting on time. This is a regular enough occurrence. I believe there was a Garda HQ circular recently enough (2007 or 2008) on the issue giving a direction on this also.

Exactly, all the top brass in An Garda Siochana have learned the hard way how to prove their case i.e. by being caught out and embarrased. Equally, defence lawyers have learned the hard way what they can do and what they cannot. But this modern idea that the prosecution is always right is only going to end in disaster.

Reloc8 wrote: »

The law won't permit years between a minor offence being tried and it being committed (absent any devious behaviour on the part of the defendant). While theoretically there is no time limit, in point of fact for both indictable and summary offences the right to fair procedures requires trial in due course of law with reasonable expedition.

Current case law on trials on indictment suggests it is necessary for the accused to show a specific prejudice arising from inordinate and inexcusable delay. It is not necessarily certain that that is so regarding summary trial, i.e. there is less tolerance of inordinate and inexcusable delay. The infinite period within which prosecution can be commenced is therefore theoretical only.

You haven't addressed the point. Is it right that the Supreme Court determines that an indictable offence tried summarily is, for all intents and purposes, summary when it suits the state. But, when a subsequent case arises when it suits the defence to say that it is summary in nature, they reverse that principle?

It really is a moveable feast for the state.

Jo King wrote: »

In any shoplifting case I have been involved in, the culprits were always caught on the spot. There is no trouble getting a comprehensive "Gary Doyle order" and disclosure of CCTV footage. I can see no advantage to the accused in having a full book of evidence. In fact the chances of escaping conviction would go down as the prosecution would be much less likely to slip up and fail to prove some essential ingredient in evidence if they had to prepare a book of evidence.

Well bully for you that you always get full disclosure, but that is not always the case. Moreover, the worst position to be in is where summary trial is about to commence and the prosecution has adduced proofs that were not previously disclosed. There is little to stop a District Court judge proceeding in those cirucmstances, which in my view is a failure of the Superior Courts to take a firm and principled line on disclosure.

detective

johnnyskeleton wrote: »

1. It depends on what you mean by useful justice system. If you mean. . . Either we have proof beyond reasonable doubt and fair procedures or we don't.

2. Exactly, all the top brass in An Garda Siochana have learned the hard way how to prove their case i.e. by being caught out and embarrased. Equally, defence lawyers have learned the hard way what they can do and what they cannot. But this modern idea that the prosecution is always right is only going to end in disaster.

3. You haven't addressed the point. Is it right that the Supreme Court determines that an indictable offence tried summarily is, for all intents and purposes, summary when it suits the state. But, when a subsequent case arises when it suits the defence to say that it is summary in nature, they reverse that principle?

4. Well bully for you that you always get full disclosure, but that is not always the case. Moreover, the worst position to be in is where summary trial is about to commence and the prosecution has adduced proofs that were not previously disclosed. There is little to stop a District Court judge proceeding in those cirucmstances, which in my view is a failure of the Superior Courts to take a firm and principled line on disclosure.

1. There is a difference between the amount of time it takes to bring about a prosecution as distinct from the standard and quality of evidence which proves a case beyond a reasonable doubt. An accused doesn't get more innocent as time passes by. Also, I don't like the comment which makes it sounds like the current system takes a Garda's word as gospel. This simply isn't the case.

2. I wasn't privy to this modern idea you speak of. It certainly doesn't apply in my district. I've had to earn my convictions and so have my colleagues.

3. No the offence is not summary when it suits the State, or the defence for that matter, but instead it is summary when it suits the alleged offence.

4. Of course you don't get full disclosure all of the time. I hope you get it when the offence and potential penalties suit full disclosure. There is also plenty a district court justice can do in these cases... I've seen them struck out when a Garda has entered new undisclosed evidence and I've also heard a district court justice stating that he would ignore that evidence and if it were a trial situation in front of a jury then he would have struck the matter out.

MagicSean

johnnyskeleton wrote: »

It depends on what you mean by useful justice system. If you mean a democratic process whereby no one is convicted unless there is proof beyond reasonable doubt, then in no circumstances should a prosecution be brought unless proof capable of belief beyond reasonable doubt should be brought.

If you believe a useful justice system is that whatever a garda says is gospel, then no, you don't need full disclosure, or lawyers, or even courts.

Take your pick. Either we have proof beyond reasonable doubt and fair procedures or we don't.



Exactly, all the top brass in An Garda Siochana have learned the hard way how to prove their case i.e. by being caught out and embarrased. Equally, defence lawyers have learned the hard way what they can do and what they cannot. But this modern idea that the prosecution is always right is only going to end in disaster.



You haven't addressed the point. Is it right that the Supreme Court determines that an indictable offence tried summarily is, for all intents and purposes, summary when it suits the state. But, when a subsequent case arises when it suits the defence to say that it is summary in nature, they reverse that principle?

It really is a moveable feast for the state.



Well bully for you that you always get full disclosure, but that is not always the case. Moreover, the worst position to be in is where summary trial is about to commence and the prosecution has adduced proofs that were not previously disclosed. There is little to stop a District Court judge proceeding in those cirucmstances, which in my view is a failure of the Superior Courts to take a firm and principled line on disclosure.

If the world were perfect od course we could try all cases, no matter how small, to the standard of the central criminal court. But be realisitc. The expense and time it would take to do this for a petty theft case would make the process redundant.

detective

Matter is reported to Gardaí 10 months after the fact. Prosecution cannot be instituted within a year. Involves alleged theft of 3,500 to 5,000 approx. Where does it stand with justice delayed, justice denied. No previous convictions so it won't make circuit court.

Any case law come to mind?

theft it arrestable offence as i believe? why could this not be prosecuted?
not really understanding the problem here.

theft reported today, for example, having taken place last september, what would stop you from taking statement of complaint, arresting suspected offender and if enough evidence, charging them to the district court??

MagicSean

bubblypop wrote: »

theft it arrestable offence as i believe? why could this not be prosecuted?
not really understanding the problem here.

theft reported today, for example, having taken place last september, what would stop you from taking statement of complaint, arresting suspected offender and if enough evidence, charging them to the district court??

The time between the offence occurring and being reported would have to be explained.

well thats up to the complainant surely!
he makes an injured party statement of complaint, explaining in it any delay in making the complaint.
any good guard would make sure that is included!

detective

Reason for delay is pure tripe. Any case law on justice delayed is justice denied? Theft involves about 4k so it will be a summary trial.

MagicSean

bubblypop wrote: »

well thats up to the complainant surely!
he makes an injured party statement of complaint, explaining in it any delay in making the complaint.
any good guard would make sure that is included!

It may be up to the complainant to explain but the dpp will have to take account of what it means for the defence. Will cctv be overwritten, will records be destroyed, will witnesses be missing. If the answer to any of these is yes then the defendent would have a good chance of challenging the prosecution.

yea, so where is the problem?

complaint made in writing, reason for delay explained, guard interviews alleged offender, guard writes up file, giving his/her opinion in covering report as to reason for delay, is it justified etc. etc.

is this not normal procedure? just dont understand what the question is here!!

its really not up to the guard taking the complaint is it?
superintendent or DPP decides, right?

bath handle

bubblypop wrote: »

its really not up to the guard taking the complaint is it?
superintendent or DPP decides, right?

it is ultimately up to the Court. The alleged offender would firstly javelin to show that there was inordinate and inexcusable delay by the prosecution and secondly that there is a real risk that he cannot get a fair trial as a result. There are numerous cases on this issue, mostly to do with alleged sex offenders being prosecuted decades after the alleged offences. Only a few of them succeed in stopping the trial. The main basis for stopping a trial is that potentially exculpatory evidence is no longer available.