Going to court is a difficult experience for most people. You should speak to your solicitor well in advance of your court date so they can take the time to explain to you exactly what to expect when your case is heard.
Ideally, you should speak with a solicitor who is in court frequently and who has experience in dealing with cases just like yours. It is important that you understand the process step by step.
You need to be advised fully on your options and the likely outcome of each option.
Ultimately, of course, you will decide on how your case will proceed. Solicitors should never tell clients what to do. Only your options. You make the decision.
Most offences are dealt with in the Distrcit Court. The District Court differs from the Circuit Court in two significant ways. Firstly, there is no jury in the District Court. A judge sits alone and determines the outcome of the case by applying the law to the facts. The Circuit Court, however, consists of a judge and a jury of twelve people. The Circuit Court Judge will advise the jury on the law and guide them on applying the law to the facts of the case.
The jury’s role is to decide on the facts of the case. It is the jury and not the judge who ultimately decide if an accused is guilty or innocent.
The second major distinction between the District Court and the Circuit Court is the potential sentences and fines that can be imposed. The District Court may not impose a custodial sentence greater that 12 months for an offence. The one exception to this is when the court imposes a consecutive sentence where a conviction has been recorded for more than one offence. There are certain criteria that apply when a court is considering making a sentence consecutive and they are the exception rather than the rule.
Which Court will my case be heard in?
All cases, even the most serious of charges, commence in the District Court and most cases are determined by that court alone.
Some cases may only be tried on indictment in the Circuit Court, The Central Criminal Court or the Special Criminal Court. More cases may be tried in the District Court if the DPP so directs and the District Court Judge considers the case to be a minor one. There are also a number of cases that may be tried in the District Court if the DPP so directs; the District Court Judge accepts jurisdiction and you ‘elect’ for your case to be tried in the District Court. You may alternatively elect for trial, on indictment, in the Circuit Court. An example of an offence where such a right of election exists, is the the offence of theft which requires the accused person’s consent before the District Court may proceed to hear the case. The accused person has the right to have their case dealt with in the Circuit Court by judge and jury if they so wish.
The District Court
Most cases in the District Court have a lifespan of three court dates. On the first day your lawyer will make various applications to the court. They will, for example, request a copy of all the evidence in the case against you. They may also make an application to the Judge for you to be granted a legal aid certificate entitling you to free legal aid for the duration of your case.
Your case will then be adjourned (or remanded if you are on bail or in custody) to another date. On the second date in court you, or your solicitor, should have by now received the evidence from the prosecution that they intend to rely on. You will have had a detailed consultation with your solicitor to discuss the evidence and you will now be in a position to decide whether you will plead guilty or not guilty to the charge.
If you are pleading guilty, the court will hear an outline of the case. Your lawyer will then address the court in mitigation and the Judge will determine the outcome.
If you plead not guilty then your lawyer will request a date to be set aside for hearing. As contested matters take some time, they are typically assigned a specific day or, as for example in the CCJ, a specific time of the day.
The Trial Courts
Once a decision has been made that your case will be tried in the Circuit Court; the Central Criminal Court or the Special Criminal Court, you will be served with a Book of Evidence. The book of evidence contains the evidence that the State intend to rely on in order to prosecute the case. The BOE typically will contain a list of all witnesses; witness statements; forensic reports; the custody record; memoranda of interview and a list of exhibits.
Once the book of evidence has been served you will be ‘sent forward’ to the appropriate court of trial i.e. the Circuit Criminal Court, the Special Criminal Court or the Central Criminal Court. The Judge will be give you an alibi warning informing you that, if you intend to rely on an alibi in your defence, you must notify the prosecutor, in writing, within 14 days.
If you were in receipt of a legal aid certificate in the District Court, the District Court Judge will assign a barrister, a junior counsel, to your case. In more serious cases, or where there is a particular complexity to your case, you may be assigned two barristers to represent you under the legal aid scheme i.e. a junior counsel and a senior counsel. For more information on legal aid please click here.
On your first day before the court of trial, your lawyer will make various applications to the Judge. They may, for example, request any outstanding disclosure that was not contained in the Book of Evidence. An application for a second barrister may be made if this has not already been done by your solicitor in the District Court and if it is an appropriate case for senior counsel to be assigned under the legal aid scheme.
If, having reviewed all the evidence and following detailed consultations with your legal team, you decide to plead guilty to the charge, your case will be set down for ‘arraignment’. At the arraignment the court Registrar will read out the formal charge, or indictment, to you and ask you how you plead. Once you enter a guilty plea a date will be assigned for sentencing.
If you are pleading not guilty, your lawyer will request a trial date to be set. It may take several months for your trial to commence in the Circuit Court. In the Central Criminal Court there is, at present, a waiting period of at least 12 months from the accused’s first appearance before that court to the commencement of the trial.
On the first date of your trial a jury will be sworn in (unless your case is being tried in the Special Criminal Court where there is no jury). You, or your lawyer (usually your solicitor), may challenge up to seven jurors without showing cause. That is no reason need be given for the challenge. A further 7 jurors may be challenged but only by showing cause. Your solicitor will advise you on the selection process and you will have discussed the type of jury that may be most favourable to your case.
Once twelve people have been selected, the trial judge will then ask the jury to select a foreman (the name given under the juries act but, as some judges will remind juries, it can, of course be a man or a woman.)
The trial will commence with counsel for the prosecution outlining to the jury the nature of the allegation and a summary of the relevant law. Counsel will describe the jury’s role during the trial and that of the trial judge.
The prosecution will then open their case by calling their witnesses and questioning them. The questions posed will, for the most part, be in relation to the witness’s statement as contained in the Book of Evidence. When each witness has finished answering questions by the prosecution counsel, your counsel may cross examine that witness.
At the close of the prosecution’s case, your counsel may make an application to the trial judge, in the absence of the jury, to dismiss the case. This may arise in circumstances where the prosecution have not proven each element of the charge contained in the indictment to the requisite standard of proof. There are several other circumstances where it may be appropriate for counsel to make such an application.
Once the trial judge is satisfied that there is a case to answer the defence present their case. You may or may not decide to give evidence and this is something you will have discussed in great detail with your legal team. It is a very important decision in every trial. Of course you do not have to give evidence at all. It is a fundamental rule of law that the burden of proof is always on the prosecution and the accused person does not have to ‘prove’ anything. It may, however, become apparent at the close of the prosecution’s case that there is sufficient evidence to secure a conviction against you and it may be in your interests to give evidence. This is referred to as an evidential burden rather than a legal burden. The distinction is very subtle but the important point is that, while the legal burden dictates that you have the right to remain silence, once the prosecution have established an evidential burden during the course of the trial, it may be very difficult to discharge it by by remaining silent.
Once all defence witnesses have given evidence and been cross examined by counsel for the prosecution your defence counsel will address the jury. They will attempt to highlight any defects in the prosecution’s case. The trial judge will ‘charge’ the jury i.e. they will give a summary of the evidence they have heard by both sides and will instruct the jury as to the relevant law and how they should apply the law to the facts they have heard.
Counsel for the prosecution or the defence may ‘requisition’ the trial judge in the absence of the jury if they believe an issue needs to be clarified or emphasised. This is very common at the end of a trial and there can be much debate over a particular phrase or word and how a jury may interpret it.
Once the prosecution, the defence and the trial judge are satisfied that the jury have been properly charged, the jury will retire to consider their verdict which will be delivered by the foreman of the jury.
You may be either acquitted or convicted. If the jury return a verdict of acquittal, then that is the end of the matter. If a conviction is recorded, you will be remanded, in custody or on bail, to a further date for sentencing.