Gifford v DPP

JudgeMs Justice Ní Raifeartaigh
Judgment Date26 May 2017
Neutral Citation[2017] IEHC 423
Docket NumberRECORD NO: 2016/203 JR,[2016 No. 203 JR]
CourtHigh Court
Date26 May 2017
Wendy Gifford
The Director of Public Prosecutions

[2017] IEHC 423

RECORD NO: 2016/203 JR


Crime & Sentencing – Art. 38 of the Constitution – S. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 – Power to try an offence summarily – Decision on jurisdiction – Assessment of prior convictions – Stage of trial – Interpretation of statue – Presumption of innocence

Facts: The applicant sought an order of certiorari for quashing the order of the District Court for refusing jurisdiction and sending the matter to the Circuit Court. The key issue for the determination of the Court was as to whether the District Judge was entitled to take into account the previous criminal record of a person in order to decide whether the offence was a minor offence fit to be tried summarily.

Ms. Justice Ní Raifeartaigh granted an order of certiorari and thus, quashed the order of the District Court. The Court held that the District Court had no jurisdiction to consider the prior convictions of a person while deciding the issue of jurisdiction. The Court held that if the District Courts were allowed to take prior convictions into account while deciding the jurisdiction, it would undermine the principle of presumption of innocence. The Court held that the in the absence of any authority in the issue in the present case, the principles of interpretation must be utilized. The Court noted that the provisions of Criminal Justice (Theft and Fraud Offences) Act, 2001 should be interpreted to give protection for the presumption of innocence. The Court opined that prior conviction records might be crucial for the Court making an order for sentence upon conviction; however, the same were not suitable at the pre-trial stage. The Court noted that the presumption of innocence was a key principle of due process under criminal law enunciated under art. 38 of the Constitution and it must be adhered to.

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on the 26th May, 2017

This case raises a net question as to whether a District Judge is entitled to take into account a person's previous criminal record when deciding if an offence is a minor offence fit to be tried summarily, for the purpose of making the decision as to the appropriate mode of trial in respect of an indictable offence triable summarily, in this case, an offence under s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.


For ease of reference, I will refer in this judgment to such a decision as the “decision as to jurisdiction,” or the “decision as to the mode of trial.” I intend these as merely short-hand descriptions of the decision that the District Judge has to make as to whether an offence is a minor offence fit to be tried summarily and therefore whether the case should be dealt with in the District Court or sent forward to be dealt with on indictment.

Factual and legal context

The applicant, aged approximately 29 years, was arrested and charged with an offence of theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (the ‘2001 Act’). This section provides for trial on indictment with a maximum penalty of 10 years' imprisonment. Section 53 of the same Act provides that the District Court may try summarily a person charged with an indictable offence under the 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.


The applicant was charged under s.4 of the 2001 Act in respect of an allegation that she stole clothing with a value of €689.70 from a shop. When she attended the District Court in Galway on the 14th March, 2016, before District Judge John Coughlan, the prosecuting officer informed the Court that there was consent to summary disposal of the case. It may be noted that there is a general DPP direction giving consent, without submission of a Garda file, to summary disposal of, inter alia, offences contrary to s. 4 of the 2001 Act where the property appropriated does not exceed €7,000 in value.


The District Judge then asked for a list of the applicant's convictions. This was at a stage where there was no plea of guilty or an indication that she might be pleading guilty. The prosecuting officer commenced a reading of the applicant's previous convictions and when he had reached a certain point in this process the District Judge stopped him, indicated that he was refusing jurisdiction and said to the applicant: ‘the party is over, it's five years in the Circuit Court.’


The Judge's comments were reported in a local newspaper and an article was exhibited to the Court, reporting the Judge as having said ‘the party is over, it's five years in the Circuit Court’ before repeating, ‘the party is over. I'm refusing jurisdiction and it's five years in the Circuit Court.’


Leave to seek judicial review was granted by order of the High Court, perfected on the 6th April, 2016, in respect of the following reliefs:

‘(i) An order of certiorari, by way of application for judicial review, quashing the determination made on March 14th 2016 by District Judge John Coughlan that the offence charged on charge sheet 16542277 is not a minor offence fit to be tried summarily;

(ii) An order of prohibition, by way of application for judicial review, preventing the Respondent serving a book of evidence on the Applicant in order that she might be sent forward for trial on indictment;

(iii) A declaration, by way of application for judicial review, that a District Judge, in deciding whether a case is a minor offence fit to be tried summarily, is not entitled to have regard to the conviction history of an accused;

(iv) A stay on the criminal proceedings based on charge sheet 16542277 currently before Galway District Court pending the conclusion of these proceedings;

(v) Costs.’

The grounds upon which relief was sought were that the District Judge took into account an irrelevant consideration, received inadmissible evidence, and acted contrary to natural and constitutional justice, when he sought and heard evidence of the applicant's prior record before determining jurisdiction. The presumption of innocence was not explicitly pleaded on behalf of the applicant, but the respondent indicated at the oral hearing that no technical pleading point was being taken in relation to this because of the importance of the matter.

Submissions on behalf of the parties


The submissions on behalf of the parties can be summarised, in broad terms, as follows. It was submitted on behalf of the applicant: (1) that the question to be addressed is whether the offence is a minor offence fit to be tried summarily and not whether an offender is fit to be tried summarily; (2) that while there is no authority where the ratio deals directly with the point in issue in the present case, there are strong dicta in some authorities on this type of offence which suggest that previous convictions should not be taken into account by a District Judge deciding jurisdiction; and (3) to allow District Judges to take previous convictions into account in determining jurisdiction would present a serious threat to the principle of the presumption of innocence. In this regard, the applicant drew attention to some of the authorities on the presumption of innocence, including the leading cases of The People (Attorney General) v O'Callaghan [1966] I.R. 502; King v. Attorney General [1981] I.R. 233; and DPP v Keogh [1998] 4 I.R. 416, as well as the cases of State (O'Reilly) v Windle (unreported, High Court, Blaney J. 4th November, 1986) and R v Bell [1936] 70 I.L.T.R. 136. Counsel also pointed to the fact that under the Bail Act, 1997, there is a statutory prohibition on publication of previous convictions of an accused which have been referred to at a bail hearing. The absence of any such reference in the Criminal Justice (Theft and Fraud Offences) Act, 2001, it was argued, suggested that the 2001 Act did not envisage that reference would be made in open court to any previous record of an accused in the pre-trial phase when the decision as to jurisdiction is to be made. Counsel on behalf of the applicant also argued, (4), that the phrase ‘fit to be tried summarily’ could be given meaning over and above the question of what is ‘minor’ without opening the door to previous convictions; for example, there might be practical or technological reasons why the case might not be fit to be tried summarily even though the offence was ‘minor.’ This argument was in response to an argument made on behalf of the respondent, described in the next paragraph, at (2).


It was submitted on behalf of the respondent: (1) that the question of potential penalty has always been integral to the distinction between minor and non-minor offences, as described in authorities such as Melling v Mathghamhna [1962] 1 I.R. 1, and Conroy v Attorney General [1965] 1 I.R. 411; (2) that, even if the question of previous convictions is not relevant to the ‘minor/non-minor’ distinction, it is integral to the phrase ‘fit to be tried summarily,’ a phrase which cannot be interpreted as mere surplusage and must have a meaning additional to or independent of the term ‘minor,’ and that its scope includes previous convictions; (3) that the dicta in the authorities support the proposition that previous convictions can be taken into account in deciding the issue of jurisdiction; and (4) that concerns related to the presumption of innocence can be overcome by a variety of methods, and in particular, that (a) the judicial oath, in a case where the District Judge proceeds to try the case,...

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