Selectivity in prosecution in the district court

AuthorMary C. Devins
PositionJudge of the District Court, LL.M. Public Law
Judicial Studies Institute Journal [2009:2
In our common law jurisdiction, which professes to
uphold the importance of jury trial to the criminal justice system,
the ever-increasing resort to summary trial suggests unease
between principle and procedure. If the criminal justice system
were to be viewed as involving a balance of powers among
stakeholders – those stakeholders being respectively: society; the
legislature; the Director of Public Prosecutions; An Garda
Síochána; the trial judge; the jury and the accused –
the prosecutors’ powers would seem to be paramount. They
decide whether or not to charge, they choose the charge and they
choose the trial venue. When that choice of trial venue is a court
of summary jurisdiction, i.e. the District Court, the reasons behind
the choice are not always clearly identifiable.
The classification of offences which, although indictable
may be tried summarily if they are minor, is far from clear.
The seriousness of an offence is the notion of what has been
described by the courts as “the moral quality” of an action or
omission. This was considered a criterion of gravity in the cases
of Melling v. O Mathghamhna1 and Conroy v. Attorney-General,2
but appears to have been displaced by the consideration of the
likely penalty in the court of trial as expressed in Rollinson v.
Kelly3 and Mallon v. Minister for Agriculture,4 where the
High Court per Costello J. held that an offence carrying a
sentence of two years could not be considered minor.
The Constitution does not distinguish between indictable
and summary offences – it refers only to minor offences, without
* Judge of the District Court, LL.M. Public Law.
3 [1984] I.R. 248, at 260.
2009] Selectivity in Prosecution 27
definition, and to their exemption from the constitutional
imperative of jury trial.5 A custom has emerged in England and
Wales, and latterly in Ireland, of describing as “either-way”, those
indictable offences that are triable summarily with the informed
consent of the accused and with the consent of the D.P.P. and the
acceptance of jurisdiction by the District Judge. Those indictable
offences which are triable summarily with the consent only of the
D.P.P. and the District Judge are often described as “hybrid”.
These terms, it seems, were adopted faute de mieux by the
Working Group on the Jurisdiction of the Courts.6
The ambiguity of the existence of indictable offences in the
District Court is perhaps reflected in the inelegance and confusion
of the language used to describe them. O’Malley, for instance,
distinguishes between those offences triable summarily by virtue
of the Criminal Justice Act, 1951, s. 2, from those which are
created expressly by statute so as to allow for “either-way”
prosecution.7 The latter do not provide for the election of the
accused, yet, although popularly known as “hybrid”,8 may also be
described as “either-way”.
O’Malley has described the criminal process as
“[a] continuum beginning with a report of discovery of an offence
and ending with a verdict or conclusion of an appeal/review”.9
Along this continuum there are key points at which the
prosecution may make decisions which can have an impact on the
eventual sentence.10 If an offence is hybrid and the D.P.P. elects
5 Bunreacht na hÉireann, Article 38.5.
6 Working Group on the Jurisdiction of the Courts, The Criminal Jurisdiction
of the Courts (Dublin: Stationery Office, 2003) pp. 51-79.
7 O’Malley, The Criminal Process (Dublin: Thompson Round Hall,
forthcoming) ch. 9, para. 9.12.
8 Law Reform Commission, Consultation Paper on Penalties for Minor
Offences (LRC-CP 18, 2002) p. 19, n. 26. Woods, Court Practice and
Procedure in Criminal Cases (Limerick, 1994), p. 268.
9 O’Malley, “Sentencing and the Prosecutor”, paper presented to the Annual
Prosecutors’ Conference, Dublin, 24 May 2008, pp.1-3, available at
10 O’Malley, “Sentencing and the Prosecutor” (previous note).

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