Practice Direction for Criminal Proceedings in District No. 21

 

Commencement

1. This Practice Direction shall come into effect on the 20^th September 2021. 

 

Objective

2. To facilitate the fair and expeditious hearing of criminal matters within District No. 21 in accordance with the provisions of the Constitution of Ireland.

 

Participants in the administration of justice

3. All professional participants in criminal proceedings have a duty to maintain the independent and impartial administration of justice and to uphold the honour and dignity of their profession when representing accused persons.

4. Participants in criminal proceedings have a right of audience before the District Court in accordance with Order 6 of the District Court Rules. 

5. A solicitor who appears as an agent for a colleague must be properly instructed and must be able to address any issues that may arise.

6. A barrister who appears unattended by an instructing solicitor must be properly instructed to represent the particular accused in the particular matter.

 

Attendance in person

7. A summons or a recognisance requires personal attendance in court.  Practitioners or prosecutors shall not advise any person to the contrary.

 

Legal aid

8. Legal aid applications (including those for a certificate for counsel) should be made at the commencement of criminal proceedings.

9. 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 ought to have legal aid to conduct their defence. 

10. A separate certificate may be granted in respect of each set of charge sheets, but the court cannot grant a separate or second legal aid certificate in respect of matters that are already the subject of an existing certificate.

11. In appropriate cases the court will inform an unrepresented accused person of their right to legal aid.  They may nominate a particular solicitor to represent them or in default the court may appoint a solicitor from the legal aid panel.

12. 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.

13. Practitioners are reminded that Regulation 3(2)(b) of the Criminal Justice (Legal Aid) (Amendment) Regulations, 1978 provides that: “No fees shall be paid … to a solicitor … for an adjournment … made, in the opinion of the Court, for the purposes of the solicitor's convenience.”

 

Adjournments

14. Adjournments will only be granted for valid reasons.

15. There are many uncomplicated summary cases where adjournments are unnecessary.  Examples include: drunkenness in a public place, illegal begging, no insurance, no driving licence, no NCT, failure to produce documents, speeding, non-display of ‘L’ or ‘N’ plates, unaccompanied learner driver, or holding a mobile phone.  In such cases, the Defence solicitor should ascertain the alleged facts, take instructions, and finalise the case on the first return date. If a complexity arises an adjournment may be sought.

16. Only in exceptional cases will the court accede to an adjournment to amalgamate separate unrelated charges against the same accused.

17. In general, adjournments will not be granted to await the conclusion of unrelated court proceedings, save to add summary offence(s) to an indictment.

 

Preferring additional summary charges

18. Court dates should not be used as a convenience to prefer additional summary charges against an accused. Such charges should be preferred at a garda station and the accused bailed to the next court, within 30 days. The additional charge sheets should be lodged in the District Court office at least 4 days in advance of court.

 

Bail applications

19. Bail will be granted to any accused person if it appears to the court to be a case in which bail ought to be granted. The court cannot grant bail for an offence(s) to which section 29 of the Criminal Procedure Act 1967 as amended applies.

20. Whether the Prosecutor consents or objects to bail is a relevant factor but it is not determinative.  Gardaí must fully inform themselves of all of the circumstances relating to a particular bail application, for example, whether the accused has a bench warrant history.

21. Where objections are made pursuant to the Bail Act 1997 as amended (“the Bail Act”) these objections must be set out in writing and furnished to the accused in advance of the application.

22. In the case of applications pursuant to the Bail Act where previous convictions cannot be agreed, practitioners are reminded that section 1A of the Bail Act requires the accused to furnish to the Prosecutor a statutory written statement containing details of the accused’s previous conviction(s) for serious offences and any previous conviction(s) for an offence(s) committed while on bail.

23. Where the Prosecutor seeks to attach conditions to bail there must be an evidential basis for each one. Conditions must not be arbitrary or capricious.

 

Bench warrants

24. When an accused person who has been summoned to attend court, or who was granted bail, fails to appear on the return or adjourned date, a bench warrant may issue.

25. The court may, in its discretion, endorse a bench warrant pursuant to section 8 of the Bail Act.  This permits the accused to be admitted to bail in the bond amount subject to any conditions set out in the endorsement without, being brought before the court.

26. On the execution of a bench warrant the circumstances of non-attendance must be outlined to the court.  In particular, the court must be informed if the warrant was taken was a hearing or sentence date.

 

Consideration of jurisdiction

27. If the DPP’s directions are not available on the first return date the Prosecutor must outline whether and when the file has been, or will be, submitted to the DPP and the timeframe anticipated for the DPP’s directions.

28. Whether the DPP’s directions are available or not, the Prosecutor must provide the court with a detailed outline of the alleged facts for the purpose of considering jurisdiction.

 

Disclosure - duty to disclose

29. There is an ongoing duty of disclosure on the Prosecutor.  Prosecutors should follow the latest edition of the DPP Guidelines for Prosecutors.

30. There is also an onus on accused persons to seek such disclosure as may be required, in particular where unusual items are sought.

31. Whether disclosure is required at all, and to what extent, depends on: (1) the seriousness of the charge, (2) the importance of the disclosure, (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.

32. Ideally disclosure should be available on the first return date.  This is so irrespective of the manner of disposal of the case.  If this is not possible, disclosure must be furnished to the Defence within the time period specified by the court.  Failure to comply with a disclosure order may result in the summons or charge sheet being struck out.

33. Practitioners must ensure that a timely consultation occurs to consider the disclosure and be in a position to indicate a plea or to seek a hearing date.

 

Disclosure - uncomplicated cases

34. In uncomplicated cases (see paragraph 15) 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, 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.

 

Disclosure - drink and drug driving cases

35. In drink and drug driving related cases the disclosure should include: (1) contemporaneous notes of the all investigating gardaí, (2) witness statements or a detailed précis of the evidence, (3) custody record, (4) doctor’s certificate, (5) statement of analysis, and (6) postage documentation.  Atypical disclosure must be requested in writing at the earliest opportunity.

 

Disclosure - misuse of drugs cases

36. Where a certificate of drug analysis is required then the proceedings will be adjourned for a relatively lengthy period.  If the certificate is not available on the adjourned date the summons or charge sheet may be struck out.

37. Where a presumptive test is relied on to prove a drug is cannabis the Prosecutor must furnish all relevant disclosure.

 

Expert reports

38. An accused person is prohibited from calling an expert witness or adducing expert evidence unless leave to do so is granted by the court.

39. There may be a limited number of cases (e.g., pursuant to planning, environmental protection, or anti-pollution legislation) where reports may be forwarded to the court in advance by consent and ‘without prejudice’.

 

Setting a case down for hearing

40. A hearing date should not be taken unless the case will in fact go to trial.

41. In the event that an accused person takes a hearing date but subsequently wishes to enter a guilty plea, their solicitor should immediately inform the Prosecutor and the District Court office.  In such circumstances, where appropriate, a victim impact statement should be taken without delay.

42. In cases where an accused person must be put on their election a hearing date shall not be assigned until the accused has presented in court, in person, and exercised their right of election.

43. The Prosecutor must inform the court of the witnesses to give evidence at trial and the parties must estimate the duration of the hearing.  If it becomes obvious at trial that a hearing will last unreasonably longer than the estimate, it may be adjourned for conclusion at the end of the list or to a different date.

44. When a case is being assigned a hearing date the parties must indicate any special requirements concerning the running and presentation of a trial, for example, CCTV, video link, vulnerable witness measures, interpreter, and so on.

45. Prosecutors should seek insofar as practicable to utilise the provisions of section 21 of the Criminal Justice Act 1984 as amended.

46. It is inappropriate to inform the Prosecutor that all of the witnesses in a particular case are required to attend for trial if in fact they are not.  If a prosecution witness is not required by the Defence the Prosecutor should be notified without delay.

47. If an accused person wishes to raise an issue such as delay, or other matters that would require the attendance of additional witnesses, the Prosecutor should be put on notice.  This will ensure that Prosecutors are not required to seek adjournments on the trial day to bring witnesses to court that could have been present had they been notified.

 

Plea offers

48. Plea offers should occur as early as possible in the criminal process. If an accused intends to offer a plea to some charges on the basis that others may be withdrawn this should be done on a without prejudice basis as soon as possible and before a hearing date is assigned.  Similarly, if the Prosecutor is willing to accept a plea to a charge(s) on the basis of withdrawing others she should contact the Defence in advance of a hearing date being assigned.

 

Vacating hearing dates

49. Only in wholly exceptional circumstances will an adjournment or remand be granted once a case has been fixed for hearing.  

50. Save for urgent and unforeseen circumstances, an application to vacate a hearing date must be made, in writing, not less than 14 days prior to the allocated hearing date.

51. Where an application to vacate a hearing date is based on illness, the applicant may be required to produce a medical certificate within a specified period.

 

Emergency sittings

52. Out-of-hours or weekend courts are for urgent matters that require an emergency sitting of the court.

53. A sitting of an emergency criminal court must be sought by a member of An Garda Síochana not below the rank of Inspector.

54. A member of An Garda Síochana not below the rank of Inspector must deem each individual case to be presented at an emergency court to constitute an urgent matter. Non-urgent matters must not be included in an emergency court list simply because the court is sitting anyway.

55. In each instance the Registrar should record the name of the Inspector.

56. If the presiding judge (or their nominee) decides a court sitting is unwarranted, no other judge shall be contacted by the Registrar.

 

Brian O’Shea
Judge of the District Court
Assigned to District No. 21