Classification of crimes in criminal cases

A crime is defined as an act which can be punished by the State. The way a criminal offence is investigated and prosecuted depends on the type of crime. Criminal offences can be:

• Summary offences
• Indictable offences
• Minor offences
• Serious offences
• Arrestable offences

In Irish law criminal offences can be tried in two ways:

• In the lower court (District Court) in front of a judge without a jury
• In the higher courts (Circuit Criminal Court, Central Criminal Court) in front of a judge and jury

A summary offence is an offence which can only be dealt with by a judge sitting without a jury in the District Court. While offences which can or must be tried before a judge and jury are called indictable offences.

All common-law offences are indictable offences as the common law did not distinguish between indictable and non-indictable offences. However, criminal statutes or criminal laws that have been passed into law do differentiate between types of crimes and how they will be dealt with by the courts.

When the District Court deals with an offence, the judge can only impose a certain length of sentence for an offence. The Criminal Justice Act 1984 (Section11) states that the District Court can impose a maximum sentence of 2 years imprisonment when it is sentencing for a number of offences at the same time. Similarly, the District Court cannot exceed a maximum sentence of 1 year for 1 offence.

Examples of summary offences include the following public order offences:

• Begging in an intimidating or threatening manner. The penalty for being found guilty of this offence is a class E fine or up to one month in prison or both a fine and a term of imprisonment.
• Threatening abusive or insulting behaviour in a public place. The penalty for a person found guilty of this offence is a class D fine or up to 3 months in prison or both a fine and a term of imprisonment.

Are all indictable offences tried in the higher courts?

Indictable offences are serious charges which can or must be tried before a judge and jury in the Circuit Court or the Central Criminal Court. However, not all indictable offences are tried before a jury. Indictable offences can be divided into the following 3 categories:

• Offences which must always be tried on indictment in front of a judge and jury
• Offences which can be tried summarily or by indictment at the request of the Director of Public Prosecutions, the judge or the accused
• Offences which can be tried either summarily or on indictment at the request of the Director of Public Prosecutions, as long as the District Court judge agrees

Offences which must always be tried on indictment in front of a judge and jury

There are a number of offences which must be tried before a judge and jury and these offences are listed in the Criminal Procedure Act 1967 and the Criminal Law (Rape) (Amendment) Act 1990. These include:

• Offences under the Treason Act 1939
• Murder, attempted murder, conspiracy to murder
• Piracy
• Rape
• Aggravated sexual assault

There are also a number of other offences which cannot be dealt with in the District Court (summary disposal) and must be dealt with on indictment, for example:

• Assault causing serious harm. The penalty on conviction for this offence is a fine or imprisonment for life or both. The statute (or piece of law) for this offence does not allow for this offence to be dealt with summarily.
• Riot. The piece of law covering this offence states that it can only be dealt with on indictment.

Offences which can be tried summarily or by indictment at the request of the Director of Public Prosecutions, the judge or the accused

Certain offences can be dealt with in the District Court if the following 3 conditions are met:

1. The court is of the opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily (in the District Court)
2. The accused person does not object to being tried in the District Court, even when told of their right to be tried by a judge and a jury
3. The Director of Public Prosecutions (DPP) consents to the accused being tried summarily for the offence

In practice, the judge looks to see what the DPP has directed and then asks the prosecuting Garda for an outline of the facts of the case. The judge then decides whether or not they are willing to hear the case or send it forward to a higher court to be dealt with. If the judge decides to hear the case in the District Court, the accused is allowed choose if they want to be dealt with in the District Court or the Circuit Court. Normally, if an accused is given this choice they ask to be dealt with in the District Court, as the maximum penalty in the District Court is less than that available in the Circuit Court.

Examples of some of the offences that can be dealt in this way are:

• Offences under Section 7(2) and Section 8 of the Criminal Law Act 1997
• Offences under the Criminal Justice (Theft and Fraud Offences) Act 2001

Offences which can be tried either summarily or on indictment at the request of the Director of Public Prosecutions, subject to the agreement of the District Court judge

Certain offences can be dealt with in the District Court if the following 2 conditions are met:

1. The court is of the opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily (in the District Court)
2. The Director of Public Prosecutions (DPP) consents to the accused being tried summarily for the offence

The offences in this category are created by statute (piece of law), and the statute outlines the different punishments for the offences on summary conviction and on indictment. Examples of these offences include:

• Assault causing harm under Section 3 of the Non-Fatal Offences Against the Person Act 1997
• Reckless discharge of a firearm under Section 8 of the Firearms and Offensive Weapons Act 1990

In practice, the DPP issues instructions stating whether the offence should be dealt with in the District or Circuit Court. If the DPP directs summary disposal (District Court), the District Court judge hears a summary of the facts from the prosecuting Garda and then decides if they will allow the case to be dealt with in their court. If the judge is not satisfied that the offence is a minor offence they can refuse to deal with the case and send it forward to the Circuit Court to be dealt with on indictment.

Under Article 38.2 of the Constitution of Ireland minor offences can be tried in courts of summary jurisdiction, that is, the District Court. The Constitution does not define what a minor offence is, although minor offences are often set down by the actual law. Minor and non-minor offences equate more or less with the statutory distinction drawn between summary and indictable offences.

The Supreme Court has however considered the issue of what constitutes a minor offence. The most important case in this area is a case called Melling v Ó Mathghamhna [1962] IR 1. In examining the criteria or rules when deciding whether an offence was minor the Supreme Court laid out the following test:

• The severity or seriousness of the punishment
• Moral guilt of the accused
• The law in 1937 when the Constitution was adopted, and
• Public opinion

Of these four tests, the most important one is the severity or seriousness of the sentence.

All that can be said with certainty is that an offence is minor where the punishment is less than six months imprisonment (Conroy v Attorney General [1965] IR 411), whereas an offence is non-minor where the punishment is two years or more (Mallon v Minister for Agriculture, Food and Forestry [1996] 1 IR 517). It appears, however, that the courts have come to the belief that an offence with a maximum prison sentence of twelve months constitutes a minor offence. It can be said as a result that any offence that carries a penalty of more than twelve months imprisonment is considered a non-minor offence.

The Bail Act 1997 created a new distinction between serious and non-serious offences. It states that bail can be refused where an accused is charged with a serious offence and it can be established that they are likely to commit further serious offences if released on bail. The Bail Act 1997 defines a serious offence as an offence that you could be punished by imprisonment for 5 years or more, if you are convicted.

The Criminal Law Act 1997 defines an arrestable offence as an offence that you could be punished by imprisonment for 5 years or more, similar to the definition of a serious offence mentioned above.

This distinction holds great importance for the Gardaí. Section 4 of the Criminal Law Act 1997 allows a Garda to arrest anyone that they have reasonable cause to believe is guilty of committing an arrestable offence. They can do this without a warrant.

Anyone arrested for an arrestable offence without a warrant can be detained in a Garda station for up to 24 hours for questioning, before being charged or released. In certain circumstances if you remain silent when questioned by Gardaí, assumptions can be drawn from your silence in any proceedings against you for an arrestable offence. Further information on your right to silence is available here.