Charles Flanagan (Laois, Fine Gael) | Oireachtas source

-----reflection of the picture.

The right of election was still provided for in the Criminal Justice (Theft and Fraud Offences) Act 2001 but provisions of that legislation must be considered in light of the law regarding the matter of theft offences that preceded that - the earlier Act. At least some of the offences contained in the Act were previously contained in the Larceny Act 1861 and were specified in the Schedule to the Criminal Justice Act 1951, which granted a right of election. The approach adopted in 2001 effectively maintained the status quoinsofar as those types of offences are concerned.

A few weeks ago, Senator Norris made the point that we should follow tradition in respect of criminal offences. The text of the Bill relating to corruption offences follows tradition and follows the style of our anti-corruption legislation to date - legislation that is very much in existence and that provides for hybrid offences. I am not aware of any instance where the structure of the offences has caused the difficulty but I accept what Senator McDowell said in respect of potential difficulty or challenges. It is important to be clear on what the effect of the amendment would be, which is why I have given the matter the type of consideration I was asked to afford it by Senator Boyhan on the previous occasion. One Senator said he would be happy to support the amendment as it would allow the District Court to hear minor corruption cases and this could take the pressure off the higher courts but the Bill, as currently constructed, provided for that. It was a reasonable point and I accept it. It is important that we consider that in the context of this debate.

However, the amendment does not provide for that. It would allow the accused to veto a summary trial in the District Court and to insist on a jury trial even in the case of the most minor offence. I acknowledge Senator Ó Donnghaile has put his hand up and I welcome the support for measures that might take the pressure off the higher courts for numerous reasons, all of which will be familiar to Senators and, in particular, the proposer of the amendment. The Bill can achieve that insofar as it allows summary prosecutions to be heard in certain circumstances in the District Court. Were I to accept the amendment, that process would be stymied by allowing the accused at every remove to reject a summary trial in a lower court.

The hybrid offences I have set out in the Bill would be much more common on the Statute Book in recent years and they are entirely appropriate. Providing a veto for an accused over which court a case might be heard in is not necessarily required and I do not accept that there is a right to a jury trial in all cases. I refer to offences that can be regarded on our Statute Book and by our courts as minor offences. Giving an accused an option to insist on a jury trial for a most minor offence could have adverse consequences for the prosecution even proceeding, much less being a success. The benefits of securing a conviction for a minor offence would have to be balanced against all of the resource implications that are consequent on a jury trial. The accused has such a veto in the theft and fraud offences legislation. If the amendment is accepted, there is a risk that a person accused of a minor offence could exercise a tactic to opt for jury trial in the hope that the State might turn around and say this is too onerous a task and too great a burden, and this it puts a greater obligation on the State than in the circumstances might be warranted. We would have the consequence of the prosecution of many minor offences in one of the higher courts. Where the accused is up for trial by jury and the State proceeds, this adds another layer to the court process and may frustrate the expeditious conclusion of many otherwise minor cases that would be dealt with summarily by the District Court under the jurisdiction of a District Court judge.I remind Senators that Article 38.2 of the Constitution provides: "Minor offences may be tried by courts of summary jurisdiction." This should be read in conjunction with Article 38.5 of the Constitution, which recognises that "save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury". As such, it is clearly recognised that minor offences are an exception to the constitutional provision for a right to trial by jury. In a recent case in 2015, DF v.Commissioner of An Garda Síochána in 2015, the court held that the only right to trial by jury is in respect of a non-minor criminal offence; in other words, a serious or major criminal offence.

There are essentially two styles of prosecution here, and both are referenced in the general 2001 guidelines for prosecutors of the Director of Public Prosecutions. The first style is as set out in this Bill, creating hybrid offences that may be tried summarily or on indictment. The DPP decides, based on the gravity of the offence and whether it should be heard in the District Court or in a higher court. Should the prosecutor decide to prosecute summarily, that decision will be subject to the District Court judge being satisfied that the offence is really a minor offence, a less serious offence.

This approach has been widely used in the Statute Book, and I invite Senator McDowell to agree with me. More than any of us, he has the practical experience here. He will acknowledge that this is the widely used norm as far as the Statute Book is concerned, particularly over the last decade. The second style is the one that is broadly set out in the amendment. I am assuming it is the intention of the Senators to follow the Criminal Justice Act 1951, and the Criminal Justice (Theft and Fraud Offences) Act of 2001. All offences are created as scheduled or indictable offences. Some, in certain circumstances, may be heard summarily in the District Court. The key difference here is that those provisions relate to offences that are specified in the various pieces 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. Where the District Court is nominated in the case of a minor offence the accused, as I said earlier, would enjoy a veto, and may opt for a trial by jury, which would have the consequences that I referred to earlier.

In drafting this Bill I have given due consideration to the construction of the offences, and I am strongly of the view that the hybrid approach chosen is the optimal one. Indeed, I refer to the 2007 Supreme Court case of Reade v. Reilly, which expressed a clear view that an election by the Director of Public Prosecutions to try a case summarily does not bind the District Court to do so. The court explained that this was in order to ensure that the rights of the accused to a trial by jury for a non-minor offence would not in any way be adversely interfered with. As I mentioned previously, the provisions in section 2 of the 1951 act and in section 53 of the 2001 act relate to indictable offences only.

Even if I accepted that these two Acts provided the only path to follow, I would have to point out that the wording of the amendment is somewhat flawed, and is not consistent with the 1951 Act or the 2001 Act. For a start, a body corporate is a legal person, and does not require to be listed separately from "person". More important, the amendment states: "The District Court may try summarily a person or body corporate charged with a summary or indictable offence under this Act." The two earlier Acts, the 1951 Act and the 2001 Act, do not offer a right of election in the event of either a summary or indictable offence. They simply allow for indictable offences to be heard summarily in certain circumstances that I have gone into. The Senators seem to be accepting the concept of summary offences under this Bill by proposing the amendment in the way that they have done. I will conclude by saying that it could well be that Senator McDowell wishes to find a form of wording that would fit into section 17 of this Bill, but the legal advice available to me is that the section would have to be amended further to create only indictable offences, and would require a further provision to allow for the summary prosecution of those indictable offences in certain circumstances.

I acknowledge a reality and invite Senators to agree with me, in particular Senator McDowell because of his experience on a day-to-day basis outside of this House. He will acknowledge that for a corruption case to proceed through the Irish courts is a rare event. Even though the cases are few and far between, the vast majority of them will in no circumstances be considered minor offences. That is the difference between a corruption offence and a bar of chocolate, which was the analogy used earlier in support of the amendment. I would say that it is in very limited circumstances that the District Court would be used in any event.

I am not in a position to accept the amendment for reasons of consistency, and also for reasons of sound legal construct. I must take into account the Law Reform Commission, previous statutes of a broadly similar nature and the need to ensure that in the event of a minor offence, a very minor offence or a largely minor offence where an accepted procedure and practice is raised for having the matter dealt with summarily in the District Court, which I believe in the circumstances to be in order.