Topic: Criminal proceedings in District No. 23
DC12 - Criminal proceedings in District No. 23
1. This Practice Direction shall come into effect on 1 July 2019 and shall replace and supersede any and all other Practice Directions relating to criminal practice and procedure in the district courts within District No. 23.
2. To manage and promote the fair and expeditious hearing of all criminal matters in accordance with the provisions of the Constitution of Ireland.
Participants in the administration of justice
3. Participants in criminal proceedings have a duty to maintain the independent and impartial administration of justice and shall at all times maintain the honour and dignity of their profession when representing the interests of accused persons.
4. Parties to proceedings have a right of audience before the District Court in accordance with Order 6 of the District Court Rules. Barristers who appear unattended by an instructing solicitor must be properly instructed to represent the particular accused in the particular matter.
Attendance in person
5. A summons, or a recognisance entered following charge, requires the attendance of the accused in person whether or not they are represented. Under no circumstances, save pursuant to a court order, should any practitioner or prosecutor inform an accused person that they are not obliged to be present in court to answer a summons or a recognisance.
6. All legal aid applications should be made at the commencement of criminal proceedings. Legal aid will be granted where the accused has insufficient means to privately obtain legal assistance, and owing to the gravity of the offence, the complexity of the case or exceptional circumstances, the interests of justice dictate that the accused should have legal aid to conduct the defence.
7. In appropriate cases the court will inform an accused person of their right to apply for legal aid, and in any case where such application is made the court will generally require the accused person to complete a statement of means and sign the relevant statutory declaration. Where the court determines that it is appropriate to grant legal aid the accused person will nominate a particular solicitor to represent them and in default the court will appoint a solicitor from the panel of solicitors under the legal aid scheme. The name of the individual solicitor to whom the legal aid fees are to be paid shall be written clearly on the statement of means.
8. In general a separate legal aid certificate will be granted in respect of each “set” of charge sheets. The court has no jurisdiction to grant a separate or second legal aid certificate in respect of matters that are already the subject of an existing certificate. In practical terms, if a solicitor does not apply for separate certificates for separate matters and the court assigns a single certificate on all matters then this cannot be undone.
9. Where an assigned solicitor cannot attend court to represent an accused, they must ensure that a colleague or a barrister appears and is instructed to deal with all relevant issues before the court. If the assigned solicitor is not in attendance and has not arranged for another solicitor or barrister with instructions to attend, the court may entertain an application by the accused to assign a different solicitor.
10. Where an accused person is before the court on new charges or on the execution of a warrant, and their nominated solicitor is not present in court, an inquiry may be made as to whether the solicitor has been notified about the court appearance. If the solicitor was notified and cannot attend personally or arrange for a representative to be present in court, then the accused person may be asked to nominate a different solicitor under the legal aid scheme.
11. Adjournments will only be granted for valid reasons. Delay by any party to secure a perceived procedural or other advantage is an abuse of process and undermines the fundamental constitutional right to a fair and expeditious hearing in the District Court.
12. Practitioners should avoid adjournments for the purpose of putting multiple factually unrelated matters into the same court date. In general, offences will be heard separately unless the evidence proposed to be led by the prosecution relates to charges that are founded on the same evidence. Only in exceptional circumstances will the court accede to an application to amalgamate separate unrelated charge sheets or summonses against the same accused.
13. In general, adjournments will not be granted to await the conclusion of proceedings in other District or Circuit Courts unless it is intended to add the summary offence(s) before the District Court to an indictment.
14. In general, adjournments will not be granted to await the outcome of unrelated cases progressing through the superior courts.
15. The court will admit to bail any person charged before it with an offence (other than an offence to which section 29 of the Criminal Procedure Act 1967 as amended applies) if it appears to the court to be a case in which bail ought to be allowed. Whether or not the prosecutor objects to bail is a relevant factor to be considered by the court but it is not necessarily determinative.
16. Prosecuting gardaí should fully inform themselves of all of the circumstances relating to a particular bail application before indicating either consent or objection to bail. If the prosecutor consents to bail she must nonetheless inform the court of any history of bench warrants taken by the bail applicant.
17. Where objections are pursuant to the Bail Act 1997 as amended they must be set out in writing and furnished to the accused at the earliest opportunity. A copy of the objections and/or a schedule of any previous convictions including offences or serious offence committed whilst on bail may also be furnished to court with the consent of the accused. These documents are not evidence and are not a substitute for testimony.
18. Where the prosecutor seeks to attach conditions to bail that are agreeable to the accused those conditions must be clearly indicated to the court for adjudication. There must be an evidential basis for conditions sought and they must not be arbitrary or capricious.
19. When an accused person previously granted bail fails to appear on the next court date a bench warrant may issue. When the case is returned to court following execution of any such bench warrant the circumstances of non-attendance must be outlined to the court in full. In particular the court must be informed if the date upon which the warrant was taken was a hearing date. Estreatment or forfeiture of bail bonds or monies will be considered by the court where there is a failure to appear without reasonable excuse.
Consideration of jurisdiction
20. If a charge is capable of being dealt with on indictment the prosecutor must provide the court with an indication of DPP’s directions and a detailed outline of the alleged facts for the purpose of considering jurisdiction at the earliest opportunity. The statement of the complainant, photographs of injuries, medical reports, CCTV, and other relevant evidence should be available on the first date the matter comes before the court or as soon as practicable thereafter.
21. With a view to avoiding unnecessary court events, on the second remand date the court will expect the prosecutor be in a position to outline: (a) whether and when the file has been submitted to the DPP and (b) the time frame anticipated for the DPP’s directions, so that the court can realistically determine the appropriate period for the next remand date.
22. Where the DPP consents to an accused person being sent forward for trial on indictment but with the option a signed plea, disclosure should be furnished as soon as practicable so that the accused may properly consider this option in advance of the preparation of a book of evidence, as a book of evidence may not be necessary and the accused may wish to raise this as a mitigating factor in the event of a guilty plea.
Disclosure in general
23. In summary prosecutions disclosure, where relevant, should be made at the very earliest opportunity to facilitate the fair trial rights of the accused. The factors to determine whether disclosure is required at all and to what extent include: (1) the seriousness of the charge; (2) the importance of the disclosure sought; (3) whether the accused has already been adequately informed of the nature and substance of the accusation; and (4) the likelihood of a risk of injustice by non-disclosure.
24. There is an ongoing duty of disclosure on the prosecutor. There is also an onus on the accused to seek such disclosure as may be required, in particular where specific items are sought that would not be furnished in the ordinary course of events. Any deficiencies in disclosure should be raised in writing by the accused before the next remand date so that the court can rule thereon.
25. Ideally disclosure should be available on the first return date, particularly in summons matters, or charge sheet matters where there has been a relatively lengthy recognisance period. If this is not achieved then disclosure must be furnished to the defence within the time period specified by the court. Furnishing disclosure outside of the period of the court order may result in the summons or charge being struck out.
26. Practitioners must ensure that a consultation is organised in a timely manner to consider the disclosure and to be in a position to indicate a plea or seek a hearing date within the time period specified by the court.
Disclosure in drink and drug driving related cases
27. In drink and drug driving related cases the disclosure should include copies of: (1) the contemporaneous notes of the investigating garda and the garda who operated the breath-alcohol device at the garda station, (2) statements of evidence, if any, or a detailed précis of the proposed evidence, (3) the custody record, (4) the doctor’s certificate, (5) the statement of analysis of the sample provided, and (6) postage documentation, if any. If the defence require items of an atypical nature, e.g. operation manuals, service records, then such request must be put in writing to the prosecutor at the earliest opportunity.
Disclosure in documents cases
28. In road traffic documents cases the accused should be in a position on the first return date to inform the court whether a hearing date is sought. In such cases the summons or charge sheet typically sets out the nature and substance of the accusation in sufficient detail to enable the matter to be properly defended. If not, then the prosecutor must be in a position to give an oral précis of the proposed evidence and the matter may be left stand for instructions to be taken from the accused on the same date. In exceptional circumstances, which must be outlined to the court, a written précis may be ordered, and if so ordered should be furnished to the accused within the time period specified by the court.
Disclosure in misuse of drugs cases
29. In misuse of drug related matters where a certificate of analysis is required as part of the disclosure then the proceedings will be adjourned for a relatively lengthy period. If the certificate is not available on the adjourned date then the summons or charge sheet, as opposed to the complaint, may be struck out unless the accused consents to a further adjournment.
30. An accused person is prohibited from calling an expert witness or adducing expert evidence unless leave to do so is granted by the court pursuant to section 34 of the Criminal Procedure Act 2010.
Setting a case down for hearing
31. A hearing date shall not be taken for tactical reasons; indeed to do so is an abuse of process. In general, the same credit will not be given for a guilty plea on a hearing date as could have been given at an earlier stage.
32. In contested cases the prosecutor must inform the court of the number of prosecution witnesses and the accused should then accurately estimate the time of the hearing. If the hearing lasts unreasonably longer than the estimate then the hearing may be adjourned for conclusion on a different date. The reason for this is to ensure fairness to all accused persons before the court on a particular hearing date.
33. Where a hearing is likely to take more than two hours it may need to be specially fixed. Such cases will be put in for mention two weeks before the assigned hearing date, when the representative for each party must appear and confirm that the case is ready to proceed. In such cases the parties must be in a position to indicate whether there are any requirements concerning the running and presentation of the case that need to be addressed by the court or the Courts Service in advance.
34. Any directions for the preparation of trial should be applied for in advance of the hearing to ensure that all matters are addressed. These include but are not limited to: (1) timetable for the proceedings; (2) attendance of the parties; (3) service of documents and compliance with disclosure; (4) securing the attendance of an interpreter; (5) playing CCTV footage, (6) arrangements for vulnerable persons (7) testimony by video link; (8) any other relevant matters.
35. Where an accused person has taken a hearing date but subsequently changes their mind and wishes to enter a guilty plea the solicitor for the accused should immediately inform the court office so that the time allotted for the hearing may be reallocated to a different case.
Vacating hearing dates
36. Only in wholly exceptional circumstances will an adjournment or remand be granted once the case has been fixed for hearing. Any application must be on written notice to the applicant’s opponent and to the court.
37. Any application to vacate a hearing date must be made not less than 14 days prior to the allocated hearing date, or such other period as in the opinion of the court will allow time to list other matters for hearing on the date(s) to be vacated.
38. Where urgent and unforeseen circumstances arise requiring an application to vacate a hearing date, the application should be made as soon as practicable after the applicant has become aware of grounds for such application. A party wishing to make an urgent application should advise their opponent of the application and the grounds for such application at the earliest opportunity.
39. Upon an application to vacate a hearing date on the grounds of illness, the party making the application will be required to produce a medical certificate within a period specified by the court.
40. A weekend court will not be convened unless requested by a member of An Garda Síochána not below the rank of Inspector.
Judge of the District Court
16 June 2019