Classification of Offences

Felony v Misdemeanour

Historically, the two kinds of offences were felonies and misdemeanours. This distinction has been abolished in Ireland by s 3 of the Criminal Law Act 1997. Felonies were punishable by death and forfeiture. The common law recognised a class of less serious offences, known as misdemeanours which were punishable by imprisonment and/or a fine. The difference in classification was important having regard to punishment ancillary disqualifications and forfeiture, degrees of participation, modes of accusations, procedures at trial and powers of arrest. 

Arrestable Offence v Non-Arrestable Offence 

It is advised to Delia that Section 2 of the Criminal Law Act 1997, as amended by section 8 of the Criminal Justice Act 2008, defines an arrestable offence as one, 

“for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes any attempt to commit any such offence.

A person may be arrested without a warrant if they are suspected with reasonable cause of committing or having committed an arrestable offence. This distinction is significant concerning powers of arrest, entry and search of premises to affect an arrest, detention, inchoate offences, participation in crime, concealment of a crime and the definition of some crimes such as burglary. Even if the circumstances of the offence are trivial and unlikely to merit sanction approaching the five-year imprisonment threshold, it will still fall within the arrestable classification provided that the offence is punishable by the term of imprisonment for five years or more the offence. 

Minor Offence v Non-Minor Offence 

The importance of the distinction between minor and non-minor offences emanates from Article 38.5 of the Constitution, which provides that 

“save in the case of the trial of offences under ss 2 and 3 (which refers to trials by Special Courts) or s 4 (which refers to trials by military tribunals) of the Article, no person shall be tried on any criminal charges without a jury.”

Section 2 states that “minor offences may be tried by courts of summary jurisdiction.” This ensures that most individuals accused of crimes that are non-minor have a right to a jury trial. The term “minor” has been defined through case law. Melling v Mathghamhna [1962] set out the criteria:

First: in the construction of a statute and, at least equally in construing a provision in a constitution as a fundamental law, it is necessary to consider how the law stood when the statute was passed.

Second: the severity of the penalty.

Third: the moral quality of the Act.

Fourth: its relation to common law crimes.

Kingsmill Moore noted;

Regarded from the point of view of the citizen offender, the difference between a minor offence and a major offence depends chiefly on the punishment which is meted out to the convicted criminal…From a moral point of view, the offence of smuggling varies enormously. The importation of a pair of silk stockings for personal use would not be too sternly reprobated even by strict moralists, but large-scale smuggling of valuable articles organized and conducted as a profitable business has not only been reprobated in severe terms by judges but would be regarded by most people as involving moral delinquency.

The severity of punishment is the most relevant criterion in determining whether an offence can be characterised as minor. This was affirmed in Conroy v AG [1965]. State (Sheerin) v Kennedy [1966] affirmed Melling, identifying that an offence punishable by imprisonment up to six months is generally considered minor. If the imprisonment exceeds this period, particularly up to three years, the offence is classified as serious. 

Regarding fines, Conroy assessed the offence of drunk driving by reference to the maximum penalty rather than the penalty imposed. However, in O’Sullivan v Harnett [1983], the court focused on the penalty actually imposed. The Law Reform Commission states the current position on the deciding criterion used by District Court Judges is the penalty actually imposed.

In State (Rollinson) v Kelly [1984], it was held that to assess the severity of the penalty in a given case, the relevant time for calculating the monetary value of the fine is the time when the fine was imposed, rather than the date when the statute was passed.

Summary Offence v Indictable Offence

It is advised to Delia that there are two ways in which a criminal offence can be tried in Irish Law - summarily or on indictment. 

Summary trials are restricted to minor offences and take place using a fairly informal procedure in the District Court before a judge without a jury. Generally, they must be commenced within 6 months from the date of the alleged offence. The jurisdiction of the District Court to conduct a summary trial is exclusively derived from statute. A summary mode of procedure is characterised by its speed, informality and absence of safeguards, such as a jury trial and pre-trial disclosure rights. In Clune v DPP [1981] it was noted that the purpose of the summary procedure for minor offences is to ensure the recollection of witnesses and presentation of evidence may be gathered without difficulty and delay. DPP v Doyle [1994] confirmed that despite the absence of some safeguards, a District Court judge is still required to ensure that an accused gets a fair trial.

Indictable offences are tried in the Circuit Criminal Court, the Special Criminal Court, or the Central Criminal Court before a jury, ensuring more elaborate safeguards for the accused. Some offences, such as murder or rape are always tried on indictment. However, not all indictable offences are tried before a jury. Indictable offences are divided into categories:

1. Offences which must always be tried on indictment:  The offences which must be tried before a judge and jury are listed in s 13(1) (a) of the Criminal Procedure Act 1967 and s 10 of the Criminal Law (Rape) (Amendment) Act 1990. These include treason, murder, attempted murder, conspiracy to murder, piracy, genocide, organised crime, rape and aggravated assault. There are also offences which do not make any provision for summary disposal. An example can be found in the Non-Fatal Offences Against the Person Act 1997 (assault causing serious harm) which provides that an accused shall be liable on conviction on indictment to a fine or to imprisonment for life or to both. 

2. Offences which, although indictable, may be tried summarily with the consent of the accused and the DPP: Section 2 of the Criminal Justice Act 1951, as amended, provides that scheduled offences listed in the First Schedule of the 1951 Act can be dealt with in the District Court if three conditions are met. Additionally, other statutes confer a jurisdiction on the District Court to try indictable offences summarily. S 53(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001, for example, provides for the summary trial of indictable under the Act if:

   1. The court is of the opinion that the facts proved or alleged amount to a minor offence fit to so be tried, and

   2. The accused person, on being informed of his right to be tried with a jury, does not object to being tried summarily and

   3. The DPP consents to the accused being tried summarily for such offence. 

Examples of some of the offences listed include perjury, obstructing the administration of justice, fraud in obtaining vehicle insurance and offences under the Criminal Law Act 1997.  

Matters which can be considered in determining whether or not an offence can be tried summarily were discussed in Gifford v The DPP [2017]. The issue was whether a District Judge was entitled to consider an accused’s previous criminal record when deciding whether an offence is a minor offence fit to be tried summarily. The Court held that the determination of whether an offence is fit for summary trial should be based on the facts.

(c) Offences which may be tried summarily on a plea of guilty: s 13(2)(a) of the Criminal Procedure Act 1967 applies to all indictable offences except those in (a) and other offences such as rape, rape under s4 and aggravated sexual assault, revenue offences under section 1078(4) of the Taxes Consolidation Act 1997 and s15A or s15b offences under the Misuse of Drugs Act 1977. This section provides that where the District Court ascertains that a person who is charged with a qualifying offence wishes to plead guilty and the court is satisfied that the person understands the nature of the offence and the facts alleged, the court may, with the consent of the DPP deal with the offence summarily. The maximum penalty can be imposed in a term of imprisonment for 12 months and or a fine of 5000 euros.

(d) Pleas of guilty in the District Court with sentence in Higher Courts: s 12(2)(b) of the Criminal Procedure Act 1967, as amended by s 10(3) of the Criminal Justice Act 1999, outlines the procedure in which a written plea of guilt may be entered in the District Court with a view to the defendant being sent forward to a higher court for sentence. The consent of the prosecutor is required and the District Judge must be satisfied that the accused understood the nature of the offence and the fact. 

(e) Hybrid offences: There are statutory offences for which an offender can be prosecuted either summarily or on indictment. Two conditions must be satisfied before the offence may be tried summarily:

(i) The DPP must consent

(ii) The District Court must be satisfied that the offence is minor.

In Reade v Judge Reilly and the DPP, the court noted that if the offence is non-minor the district court is not entitled to try such an offence and has no jurisdiction to dispose of non-minor offences and is obliged to decline jurisdiction in respect of any such offence.

Serious Offence v Non-Serious Offence

A new classification of offences, created by the Bail Act 1997 defines a serious offence as an “offence specified in the schedule for which a person of full capacity and not previously convicted may be punished by a term of imprisonment for a term of five years or by a more severe penalty.” This includes assault, assault causing serious harm, syringe offences, rape, murder and more. The Act provides that where a bail application is made by a person charged with a serious offence, a court may refuse the application if the court is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence by the person. In AG v O’Callaghan, the Court held that bail could not be refused to an accused on the grounds that there is a likelihood that the defendant could commit further offence.