The summary trial of indictable offences

AuthorJames Hamilton
PositionDirector of Public Prosecutions
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
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.

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