Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I thank Senators Boyhan, Norris and Ó Donnghaile for their comments. As has been said, the amendment relates to section 17 of the Bill to provide for a right of election for an accused to be tried summarily. It is a similar approach to that which is being taken in section 2 of the Criminal Justice Act 1951 and section 53 of the Criminal Justice (Theft and Fraud Offences) Act 2001, but the key difference is that the provisions in those Acts relate to offences that are specified in various items of legislation to be triable on indictment only. The provision, therefore, gives jurisdiction to the District Court to try summarily what would otherwise have been an indictable offence and therefore subject to a trial by jury.

The amendment proposed by Senator Boyhan does not sit neatly with the provisions of this Bill as currently constructed. It already provided for proceedings to be tried summarily or on indictment. This approach to the construction of offences, which is known as a hybrid offence, has been widely used in the Statute Book for the past decade or more. It appears what Senator Boyhan wishes to achieve, supported by Senator Norris, is that an accused would have a right to object to being tried summarily in a given case in which instance the DPP would make a decision on whether to try the accused for the offence on indictment.

While I appreciate the importance of trial by jury in our legal system, it has long been accepted that minor offences can and should be tried in the absence of a jury. For practical reasons, and often for other reasons, it would be an offence of a more minor nature that would be accepted by the prosecution pre-trial. The important thing is to balance the rights of the accused persons with the effective and efficient administration of justice. The Constitution provides only that minor offences be tried summarily in the absence of a jury.

In drafting the Bill I have given careful consideration to the construction of offences and I am happy that the approach in the Bill is the best way forward. If the Director of Public Prosecutions elects to try an offence summarily, the court must still accept jurisdiction and will only do so if the offence is a minor offence. The Supreme Court, in the case of Reade v.Reilly, has expressed the clear view that an election by the DPP to try a case summarily does not bind the District Court to do so and explained that this was to ensure that the rights of an accused to a trial by jury for a non-minor offence would not be unduly interfered with.

As I mentioned previously, the provisions in section 2 of the Criminal Justice Act 1951 and in section 53 of the Criminal Justice (Fraud and Theft Offences) Act 2001 relate to indictable offences only, not hybrid offences as we have provided for in this Bill. Even in the wording of the amendment as proposed, it is clear that it does not make sense in the context of what in effect is a hybrid offence. For example, the amendment states that the District Court may try summarily a person or body corporate charged with a summary or indictable offence, essentially providing that a summary offence may be tried summarily, which seems to be an obvious statement of fact.

I see where the Deputy is coming from but having regard to the construct of the Bill, I am not prepared to accept his amendment because the consequences have not been fully considered. I know Senators feel strongly about it. It was not an issue that arose in the context of Dáil proceedings but I ask Senators, having regard to our carefully constructed body of criminal law and the long-established practice and procedure in the courts for summary offences, indictable offences and the hybrid offence we are dealing with now, to leave matters as they are.