The summary trial of indictable offences

• Author: James Hamilton
• Position: Director of Public Prosecutions
• Pages: 154-181

THE SUMMARY TRIAL OF INDICTABLE OFFENCES

JAMES HAMILTON*

I. INTRODUCTION

This paper is concerned with the summary trial of indictable

offences, that is, those indictable offences which, provided they may

be regarded as minor, can be tried in the District Court. I propose to

examine a number of problems, including the question of when the

accused should have a right to elect for a jury trial. What criteria

should the judge adopt in deciding whether an offence is minor?

What criteria should the prosecutor adopt in electing either for

summary trial or trial on indictment?

Article 38.2 of the Constitution of Ireland provides that “minor

offences may be tried by courts of summary jurisdiction”. The

Constitution goes on to provide that, with the exception of minor

offences and offences tried by special courts and military tribunals,

no person may be tried on any criminal charge without a jury.

As a general rule the only courtwith a summaryjurisdiction at

first instance in criminal matters is the District Court.1The reasons

of legal policy which underlie the concept of summary jurisdiction

were stated in Clune v. D.P.P.2by Gannon J.

Asummarytrial is a trial which could be undertaken with

some degree of expedition and informality without

departing from the principles of justice. The purpose of

summaryprocedures for minor offences is to ensure that

such offences are tried as soon as reasonably possible after

their alleged commission so that the recollection of

witnesses may still be reasonably clear, that the attendance

of witnesses and presentation of evidence may be procured

and presented without great difficulty or complexity, and

154 [4:2Judicial Studies Institute Journal

*Director of Public Prosecutions. This article is based on a paper presented at the District

CourtJudges Conference on 12 October 2002. The author wishes to acknowledge the

assistance of Eileen Creedon, professional officer in his Office, and Eoin Lawlor, legal

researcher, in its preparation. He is, however, responsible for the opinions expressed in it and

for any errors it may contain

1Certain other courts have a power to punish contempts summarily. Where a person is tried

on indictment the indictment may also contain any count for a summary offence arising from

the same facts: section 6 of the Criminal Justice Act, 1951.

2Clune v. D.P.P. [1981] I.L.R.M. 17 (H.C.).

that there should be minimal delay in the disposal of the

work load of minor offences.3

To these, Hogan and Whyte add the following comment:

It would be a sufficient reason for summary trial to say

that the multiple disruption of jurors’ private affairs, the

expense, the delay, and the general panoply of a jury trial

render this form of justice completely impractical for the

mass of minor offences with which the State has to deal,

and that the defendant’s interest, where only a minor

punishment can be imposed, is insufficient to outweigh

those public considerations.4

Generally, offences may fall into three categories:

1. Minor offences created by statute where the

only penalty provided for is on summary

conviction.

2. Indictable offences that cannot be tried or

otherwise disposed of in the District Court, e.g.

murder or rape.

3. Indictable offences which, provided the

particular offence can be considered minor in

nature, may be dealt with in the District Court

(each-way offences).

It is with that third category of offences that this paper is concerned.

It is important to note that no offence may ever be tried by a

courtof summaryjurisdiction if the courtconsiders that it is not a

minor offence. References subsequently in this paper to the option of

either the prosecutor, the defendant, or both, to elect for summary

trial, are subject always to the qualification that the judge of the

District Court may not accept jurisdiction unless of the opinion that

the offence is a minor one fit to be tried summarily. The decision of

the prosecutor to opt for a summarytrial is never a final one and is

2004] 155The Summary Trial Of Indictable Offences

3Clune v. D.P.P. [1981] I.L.R.M. 17 at 19 (H.C.).

4Hogan, G. and Whyte, G., (ed.) J.M. Kelly: The Irish Constitution (3rd ed., Butterworths,

Dublin, 1994), p. 627.