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Criminal Defence

General Principles. 

A basic principle of criminal law is that the State are obliged to prove the case against you beyond a reasonable doubt. As the defendant, you -certain exceptions aside - are not required to prove anything. If the Judge has a doubt about the evidence, the Judge must give the benefit of the doubt to you. In practice what this means is that the Judge must strike out the case against you.

This does not mean that the Judge must strike out the case if they have any doubt. Something more than this basic threshold is required. The doubt must be a reasonable one.

Identification Evidence.

Identification evidence is one of the most important aspects of a criminal trial as it invariably involves one witness asserting that they have observed you having committed some criminal act. But it has also been long recognised that visual identification evidence poses a serious risk of a miscarriage of justice because an honest and responsible witness who is certain that they are identifying the correct person, may be wrong.

As a result, identification evidence is notoriously unreliable. In many cases over the years I have heard clients whisper to me in court that something that a witness has said in sworn evidence is either untrue or downright lies. The reality, however, is rarely so dramatic.

The apparently simple act of identification is actually the culmination of a complex memory process comprising three main stages: (a) acquisition of information (b) storage of information and (c) retrieval of information. In the case of identification evidence, which involves the perception, storage and recall of the identity of a person, a potential for error arises at each of these critical stages. As Elizabeth Loftus, the American cognitive psychologist and expert on memory has written: "Eyewitnesses who point their finger at innocent defendants are not liars, for they genuinely believe in the truth of their testimony....That's the frightening part—the truly horrifying idea that what we think we know, what we believe with all our hearts, is not necessarily the truth."—Loftus, Psychology Today, 1996.

What does this mean in practice? What it means is that if a member of the Gardai gives sworn evidence that you know to be wholly incorrect, it does not mean that the Garda is lying. In almost all cases they are not. What has happened is that two witnesses (you and the Garda) have remembered the same incident differently, but each of you honestly believes that they are right.

Is it possible that the Guard is lying? Yes of course. In theory it’s possible that any witness might lie giving evidence. But a difficulty arises here: why would they? What is the benefit to them of giving perjured evidence? To secure a conviction? Yes, that is possible. But against you, a person whom they barely know, have no prior dealings with and have no vendetta against? Hardly.

In fact, it is highly unlikely that they are lying for another quite important reason: if it was found that they had lied in evidence, they would likely be dismissed from their jobs, and no case is worth that.

What has happened is the all too regular occurrence where both the Garda and you have remembered the same set of circumstances, but differently. Is the Garda lying? Almost certainly not as they honestly believe what they are saying in evidence. So, what is the explanation? Simple: the Garda is mistaken. 

How long do Gardai have to issue a Summons?

The first step in the criminal process is the issuing and serving of a summons. For minor matters (most road traffic and public order cases) the Gardai must apply for summonses within 6 months of the date of the offence. For more serious offences there is no time limit.

In theory this could mean that if the Gardai applied - after 6 months - to summons you to court for a minor matter, it could be struck out. In practice, in almost all cases the Gardai get a case to court within the permitted time periods.

The reason for this is quite simple: if a Garda allows a case to become “statute barred” (i.e. too late to prosecute you) they will likely face internal disciplinary sanctions, something they’re obviously very keen to avoid. Internal disciplinary sanctions include fines and a record which stays on their file and acts as a hindrance against future promotion prospects. In more serious matters e.g. drink driving offences, there is significant oversight here from other State bodies.

For example, the Medical Bureau of Road Safety are the government agency tasked with analysing blood and urine samples obtained from drink and drug driving arrests. In all cases the Medical Bureau require an account of the result -in court- of each sample that they have analysed and if samples are unaccounted for, the matter is referred to Garda Management -and the Ombudsman- for investigation.

So as a general rule, barring some exceptional circumstance if you have received a summons to attend court it’s almost certainly been issued within the permitted time allowed.

Wrong Information on Court Summons.

If your name or address is spelled incorrectly on the summons does that render it invalid? No. Slight typographical errors in the spelling of names or addresses (e.g. townlands are frequently misspelled or lack postal exactitude) will not invalidate a summons. 

Neither will recording your date of birth or the registration number of your car incorrectly. In practice defects such as these can be cured in court when the Gardai apply to amend the summons. If the amendment sought is minor then the Judge will normally allow it. However if the amendment is significant (e.g. recording your name, registration number of your car or place where the offence occurred completely incorrectly) then it will be open to the Judge to refuse to amend the summons and strike the case out.  

What Happens in Court.

The first step in the court process is your first appearance in court. The summons you receive will indicate when you must attend court and you should seek legal advice before this date. It is always surprising just how many people appear in court without legal representation. While you can obviously choose to represent yourself in practice this is rarely a good idea and the Judge will likely adjourn your case in order for you to seek legal advice.

This is not because the Judge is being difficult or even demanding that you get a solicitor; they are doing this for your benefit, because they know what the sanctions are in your case and they are not comfortable handing down penalties, many of which carry either penalty points, disqualifications from driving, fines or even the possibility of a jail sentence, to people who are not legally represented. 

Where do I sit? Do I say anything? What do I do when my name is called? Before the current pandemic if you had been summoned to court you had to be there at 10:30a.m. With the requirements for social distancing people are now being allocated specific times e.g. 10:30am, 11:30am, 2:30pm etc. This is to avoid large gatherings of people simultaneously.

When you arrive at the courthouse you will likely be met by a member of the Courts Service who will ask you for your name and check it off against the list that they have. You will then be allowed enter the courthouse. If you arrive before your allotted time you will not be allowed to enter.

Once you have entered the courthouse you should wait outside the courtroom. These courtrooms are well signposted. You cannot enter the courtroom until your name is called by a Garda. When it is, you can enter the courtroom. The Judge will ask you to identify yourself, so that they know that the person named on the summons before them is the person who has entered the courtroom. They will ask you whether you understand the charges against you before the court and whether you are legally represented.

Should I represent myself in Court?

The majority of Judges dislike dealing with criminal matters where a person is unrepresented. This is not because they have a desire to generate business for solicitors present in court -I have heard this notion advanced by people before- but for more pragmatic reasons: time.

Time is precious in courts. Most District Court Judges have lengthy lists every single day and don’t ever seem to have enough time to deal with them all. They dislike having to stay in court beyond 5pm, but because the number of District Court Judges is insufficient to deal with the number of cases in the country (at least 40 more district court judges would need to be appointed nationally to cover the volume of work), they frequently have to stay in court past 6pm and even 7pm. Some have been known to work until 9pm just to clear their daily lists. Some even later. 

Most cases can be dealt with and adjourned quickly. But there are many cases that will require significant time to dispose of and these are what slow down the court business e.g. contested bail applications (which individually can take 20-30 minutes to resolve) and cases that are listed for hearing (any one of which can take between 1 and 3 hours). These are matters that are given priority. Judges therefore want to clear their lists quickly because like you, they too have lives outside of court and want to spend it with their families.

A person who comes to court unrepresented automatically slows down the court list. They do this because their case must be explained to them by the Judge. The Judge will have to ensure that you understand the charge against you and ask you preliminary questions about whether you are seeking legal representation and whether your wish to enter a plea of guilty or not guilty. From my experience this aspect is frequently accompanied by either bewildered expressions on the faces of people who are unrepresented (because they cannot understand what is being asked of them) or requests by them that the Judge repeat what they have said (because they cannot hear what is being asked of them). The result is usually confusion and a slowdown in the court business.

You should always seek legal advice before coming to court. You may feel that you can conduct the case on your own and this may well be the case. But the Judge’s role is not to give you legal advice and you cannot ask the Judge to assist you in your own defence (you’d be surprised by how many people ask the Judge what they should do). You need to be aware of the phenomenon I describe as “unintended consequences”.

Unintended consequences are outcomes from actions that we take, that are not intended or are unforeseen. For example, you might believe that you are fully competent to represent yourself in an NCT offence. If the Guard gives evidence of having stopped you without having an NCT disc displayed, the court will likely record a conviction against you.

If you had been represented, your solicitor might have approached the Guard, might have told them about your personal circumstances -people who come to court have often been through fraught emotional events – might have asked that the case be possibly adjourned to allow you to rectify the NCT matter so that it could ultimately be resolved, thereby allowing the Garda to feel justified in striking the case out at the adjourned date.

This is a hypothetical scenario but one that is played out in courts across the country every day. This involves an element of bartering, negotiation, pleading or an appeal to reason and common sense between the solicitor and Guard. In some cases, this does not work, but in many cases it really does.

The reason that it does is precisely because while the Guard has a job to do, they inherently realise and accept that that “job” does not extend to making people’s lives harder. Therefore, if an option can be floated and presented to court that allows the Guard to present their case while giving you a chance, they will almost always take that option. This of course is dependent on the nature of the charge, but this element of sheer humanity is present within nearly all members of the Gardai and it is an enduring credit to the Force.

If the Guard decided to adjourn your case to see if you got your car tested in the NCT test centre and ultimately struck the case out, this means that your solicitor has successfully negotiated this result for you. The unintended consequences of representing yourself in court? Along with the likely conviction and penalty points for driving without an NCT certificate - which you may have anticipated- comes the hike in your insurance premium next year, which you probably hadn’t.

Patrick Horan, 2020.