Selectivity in prosecution in the district court

• Author: Mary C. Devins
• Position: Judge of the District Court, LL.M. Public Law
• Pages: 26-41

Judicial Studies Institute Journal [2009:2

26

SELECTIVITY IN PROSECUTION

IN THE DISTRICT COURT

JUDGE MARY C. DEVINS*

INTRODUCTION

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

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* Judge of the District Court, LL.M. Public Law.

1 [1962] I.R. 1.

2 [1965] I.R. 411.

3 [1984] I.R. 248, at 260.

4 [1996] 1 I.R. 517

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”.

I. HIERARCHY OF INTERESTS IN THE PROSECUTION SYSTEM

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

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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

http://dppireland.ie.

10 O’Malley, “Sentencing and the Prosecutor” (previous note).