Gormley -v- D.J. Smyth & anor, [2010] IESC 5 (2010)

Docket Number:359/08
Party Name:Gormley, D.J. Smyth & anor
Judge:Geoghegan J.

THE SUPREME COURT Appeal No. 359/2008Geoghegan J.

Fennelly J.

Finnegan J.


JONATHAN GORMLEYApplicant/Appellantand


DIRECTOR OF PUBLIC PROSECUTIONSRespondentsJUDGMENT of Mr. Justice Geoghegan delivered the 28th day of January 2010

This is yet another case in which the trial of a so-called "hybrid offence" has caused legal difficulties. In order properly to explain the problems, I will outline the factual background.

The appeal is an appeal from an order of the High Court (O'Neill J.) refusing judicial review of an order of Judge Smyth in the District Court, the first-named respondent, sending the above-named appellant forward for trial under section 4A(1) of the Criminal Procedure Act, 1967 as amended. The case made was that in the factual circumstances which arose, the learned District Court judge had no jurisdiction to send the appellant forward for trial on indictment. The application for judicial review brought pursuant to leave had sought to have that order quashed.

The appellant was charged with two offences namely, an offence under section 3 of the Non-Fatal Offences Against the Person Act, 1997 and an offence under section 2 of the Criminal Damage Act, 1991. Those sections have been worded in a similar manner to that adopted in most modern statutory provisions creating statutory offences. I think it worthwhile to cite, for instance, the said section 3 in full so as to illustrate the structure.

"3. - (1) A person who assaults another causing him or her harm shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable -(a) on summary conviction, to imprisonment for a term not exceeding 12

months or to a fine not exceeding £1,500 or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not

exceeding 5 years or to both."

I will deviate from the recital of the relevant facts to draw attention to certain aspects of the section. Because it contemplates two alternative modes of trial and specifies the respective penalties for conviction on each of those modes of trial, an offence of that kind has come to be popularly known in legal circles as a "hybrid" offence. In my opinion, this categorisation is useful in some contexts and misleading in others. Before this statutory formulation of offences became fashionable a statute which created an indictable offence simply created the offence and described it as either a felony or misdemeanour (a distinction since abolished by the Criminal Law Act, 1997). It was then automatically an offence triable upon indictment. Statutory offences, for instance, created by the Criminal Law (Amendment) Act, 1935 were fairly typical. On the other hand, there were other offences created by statute which provided only for summary trial though that precise expression was not used. Categorisation as summary offences arose from the words " shall be liable on summary conviction to …."

Because the modern statutes so often provide for alternative modes of trial they have come to be described as "hybrid offences". When analysed, however, this is a purely procedural categorisation and not a substantive one. Any offence which is authorised to be tried by indictment either at common law or by virtue of statute can be correctly and usefully categorised as an "indictable offence". Under the provisions of the Criminal Justice Act, 1951 and indeed to a lesser extent under previous legislation, certain offences although indictable could be tried summarily in some circumstances. In those particular cases, they could not be tried summarily without the consent of the accused and the District Court judge had to be satisfied that the offence he was asked to try was not a non-minor offence having regard to the terms of the Constitution. The modern scheme of so-called "hybrid offences" has some features that are similar. These offences can accurately be called "indictable offences" even though they may be tried summarily (subject to the District Court accepting jurisdiction). The main difference which is not relevant to that particular categorisation is that in the case of the 1951 offences, the accused had an option not to be tried summarily whereas ever since the law was clarified in The State (McKevitt) v. Delap [1981] I.R. 125, it has been clear that the accused has no choice in the matter, if the Director of Public Prosecutions decides in favour of a summary trial provided that the District Court judge accepts that the offence is a minor offence. As was pointed out by Macken J. in her judgment in this court in Reade v. Judge Reilly, unreported judgment of the Supreme Court 31st July, 2009, there can be no question of the Oireachtas divesting the District Court judge of his or her obligation to determine whether the offence is a minor one or not. Still less is there any question of the power to adjudicate on that question being delegated by the Oireachtas to the Director of Public Prosecutions. The Director of Public Prosecutions, however, in the case of the "hybrid offences" makes an administrative decision as to how the case is to be proceeded with. Having made that decision, the accused has no right to have it overturned but the District Court will refuse the summary jurisdiction if the District Court judge considers the offence to be non-minor.

In stating that an offence once indictable, in the sense of being capable of being tried on indictment remains an indictable offence irrespective of whether it is tried summarily under the 1951 Act or on the choice of the Director of Public Prosecutions in the case of the so-called "hybrid offences", I am reinforced in that view by the chapter in the English textbook Smith and Hogan Criminal Law 8th Edition headed "The Classification of Offences". Having recognised that Parliament "has from time to time provided for the summary trial of indictable offences and vice versa", the authors go on to refer to the James Committee in England which recommended a threefold classification of offences namely, "offences triable only on indictment", "offences triable only summarily" and "offences triable either way". It seems to me that a hybrid offence in this jurisdiction is nothing more than an offence "triable either way" but it is, therefore, an indictable offence in that it may be tried on indictment.

There is well-established case law in this jurisdiction that time limits for the commencement of summary prosecutions do not apply to the prosecution of indictable offences summarily. The rationale for this is fully explained by this court in the judgment delivered by Fennelly J. in DPP v. Gregg [2009] IESC 17 on 2nd March 2009. Even as a matter of ordinary English, this remains logical as the word "indictable" merely means capable of being tried on indictment.

The meaning of "summary offences" also needs explanation. Summary jurisdiction is...

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