The Purpose of the Criminal Law

Criminal Law governs the society we live in by deeming what citizens living within its jurisdiction can and cannot lawfully do. Criminal Laws consists of statutes and common laws put in place by ruling governments or can based on previous case law. The laws are in place to help societies function in a fair and peaceful way and should be applied equally and if there should be a violation of a law there may be a penalty as defined by legal statutes based on the seriousness of the offence. A great deal of laws that have been created have a common feature which is that of an action performed by a person would be strongly disapproved of by society. Any person who has breach of a law will be brought before a judge to answer the allegation.

Outline the relevant articles of the constitution that protect citizens in society against crime.

The Bunreacht na hÉireann also known as the Irish Constitution was created after the British occupation of Ireland. The Constitution put in place the framework of how the country and its organs should be organised governed and the also stated the rights of citizens living in the state. It was ratified in 1937.

Article 38 of the Irish Constitution refers to the Trial of Offences. For example, no citizen of the state can be tried for a charge if it’s not written into law. The same article also makes an allowance for minor offences to tried in the district court where the penalties are less severe than in any other higher court. Article 38.1 also provides the state the option to create special courts in which the standard court model may not be the best setting for justice to be administered, i.e. the special criminal court sits with 3 judges and no jury. They may deal with subversives and gang members, who may have the means available to them to tamper with a case in a normal court setting.

The fundamental rights of citizens are covered in Article 40 of the constitution. In the eyes of the law all citizens should be treated equally without pre-judgement. However due regard will be given those based on capacity, physical and moral and social function.

In relation to victims of crime, the constitution make a guarantee to respect all citizens and will defend and vindicate the personal rights of all citizens.

A tort is a civil wrong doing from one person/group to another person/group of people where damage, injury, loss, distress or harm is said to have taken place and the circumstances have led to Court where the plaintiff is looking damages/compensation to be paid.

The Merriam-Webster defines a crime as “an illegal act for which someone can be punished by the government” (www.merriam-webster.com, 2019) Crimes are acts by a person or persons which violate statutes and common laws of the land and can be punishable by various means including, imprisonment, fines and community service.

As an example of tort law could be the following, ‘a cleaner mops the entrance to supermarket and does not place any signage to warn customers. A customer then walks in and slips on the wet floor breaking their wrist’. The cleaner has been negligent in their actions by not providing the signage and the company who owns the store could be now to taken to Court for compensation.

An example of criminal law is if two people were having an argument and one of the parties involved strikes the other in the face without a lawful reason. This is an assault contrary to Section 2 of the Non-Fatal Offences Against the Person Act, 1997 (www.irishstatuebook.ie, 1997) The injured party in this case could also take civil case against the suspected offender.

Tort Law is usually of civil liability and Criminal Law of criminal liability and there can be crossover between both.

Explain the structure of the criminal justice system including the hierarchy, jurisdiction and functions of the Court and also the role of other functions of other institutions within the criminal justice system.

The function of the criminal justice system is to hold someone to account should they commit a wrong that violates common and statute laws. Should that be the case the person may be prosecuted within the Irish Court system.

Before 1922 the Irish Court system was based on the British model, but in 1922, provisions were made in the constitution for the Republic of Ireland to legally create their own Court system as per The Courts of Justice Act 1924 (www.irishstatutebook.ie, 1924). The Court system that we used today in the state is based The Court (Establishment and Constitution) Act 1961 pursuant to Article 43 of the Irish constitution. (www.irishstatutebook.ie, 1961) (www.gov.ie, 2018)

The structure of the Irish Court system consists of District Court, the Circuit Court, the High Court and the Supreme Court. Each one serves a different purpose in relation to location, seriousness of offence and type of offences.

The District Court is usually local to a town/city within Ireland. This Court will mainly deal with summary offences and can deal with some indictable offences based on the DPP’s directions.

When it comes the District Court, Ireland is split in to 23 districts. There are usually one or more sitting judges attached to the district. The District Court is made up fifty-four judges and a President. Cases are generally heard in Court houses, but they can also be heard in other public buildings, i.e. hotels, community centres…

People who have been charged/summoned before this Court will attend in either the location in which they were arrested, they location in which the offence took place or the locality of where the person lives or carries out their daily business.

The Circuit Court is organised geographically, and it split into 8 Circuits. The Circuit Court has thirty-three judges and a President. The President of the District Court is also a judge of the Circuit Court. This Court will deal with indictable offences and is made up of a judge and jury. This Court provides a function in 4 main fields, family law, civil law, criminal law and jury service. The sittings of the Circuit Court vary depending on the location, Dublin and Cork will have recurring sittings throughout the legal season, but other Circuits will differ and may sit one a week, twice a month to once a month.

The High Court has full jurisdiction over civil and criminal matters within the state. It wears many hats. The High Court sits in Dublin but also will hear cases in several provincial location throughout the year. These include personal injury cases, fatal injury cases and civil and family appeals that have come from the Circuit Court.

In Dublin, when the High Court is dealing with civil matters it is not restricted anyway and can award settlements of any amount that the judge feels are necessary according to law.

In relation to appeals the High Court has the power to deal with civil matters. It also will hear cases from a person who has been granted bail from the District Court but wishes to have the conditions of the bail varied. A person who has been charged with the offence of murder can only apply to the High Court for bail. When the High Court hears matters of a criminal nature it will be referred to as the Central Criminal Court.

The Supreme Court is the final stop for appeals in Ireland. The Supreme Court is often used to clear up questions of the validity of a law regarding the Irish Constitution. The Circuit Court may refer a point of law that has been brought into question for a ruling to assist with a case.

The Supreme Court is made of a Chief Justice and 7 judges. One of these judges will be the President of the High Court.

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There are other institutions within the Irish Criminal Justice system which enable it to operate and deal with people who should become involved with it in any way.

One of these institutions is the national police service of Ireland, also known as the An Garda Síochána. The main functions of the Gardaí are as set out in Section 7 of the Garda Síochána Act, 2005 as amended. These range from the preservation of life, the protection of property, detecting and preventing crime, to protecting the security of the state and keeping communities safe.

The Gardaí will operate within the realm of enforcing criminal laws to ensure that society can function in a safe and transparent way. They are responsible for seeking and bringing alleged suspect before the courts, gathering evidence and serving as witnesses in prosecutions. The Gardaí also now serve a heavy role in support victims of crime in according with an EU Directive issued in 2016 and the Criminal Justice (Victims of Crime) Act 2017

There is also the Irish Prison Service whom are responsible for securing and rehabilitating offenders. The Irish Prison Service is organised by a director general and supported by 7 directors.

The Irish Prison Service reports to the Department of Justice and Equality. There are 14 prison systems in Ireland. Some systems are closed, some are semi open, and some are remand centres. Males can be sent to any of the 14 prisons and females can be sent to 2 of them, either the Dochas Centre or Limerick Prison.

There is also a young person’s detention centre named Oberstown, this is in North County Dublin. Oberstown runs its institution around 5 pillars: care, education, health, offending behaviour and preparation for leaving. (www.oberstown.com, 2019) This framework is there to help empower the young people, analyse and reflect on their behaviour and when they are allowed to be released into society, that they can maintain a life within civil norms.

The Probation Service is also an important part of the Irish Criminal Justice System. The service usually gets involved around between the trail and sanction part of the process. The Probation Service may be asked by the judge to prepare a pre-assessment document in relation to the alleged offender, so he/she knows what options are available to him should it warrant a penalty. One part of their role is supervising, and monitoring offenders should they get a community-based sanction, they may also be required to report back to the court to ensure the offender is committing to his obligations.

The probation team will also play an important role in the transition of an offender being released from prison back into the community. Sometimes some offenders may be monitored. However, their focus is primarily about rehabilitating the offender, assisting them to make better choices, and helping them turn away from a life of crime and integrating into society as a law-abiding citizen.

An abortion is where a pregnancy is terminated before the foetus has been fully developed in the womb. The act is a physical one and the termination can be completed using medical or surgical means.

Up until 2018 in Ireland, abortion was illegal except in very limited cases. The 8th Amendment which was inserted into the Irish Constitution in 1983 stated that : “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

The passage protects the rights of the unborn, but some people believed that the rights of the woman carrying the foetus weren’t being protected. For example, if a woman wasn’t able to support a child, the child didn’t have a chance of surviving outside the womb, the woman was pregnant as a result of a sexual assault.

The 1992, the 13th Amendment stated the even though protection of life is vital, it would not restrict the freedom to travel in and out of the state. This amendment came off the back of the X Case in 1992 in which a pregnant teenager was believed to be a high risk and suicidal due to becoming pregnant after being raped. This amendment now allowed the teenager to travel to another nation, which having an abortion may be legal.

In May 2018, Ireland held a referendum to repeal the 8th amendment and for a new wording to be inserted for the legalisation of abortions in Ireland. This was based on vindicating the rights of pregnant women. The votes were in favour of repealing the 8th amendment from 66% voting in favour and 34% of votes voting againsе. This new legislation, Health (Regulation of Termination of Pregnancy) Act 2018. was signed into law on the 20th December 2018.

Euthanasia is an intentionally ending of a life to relief the suffering of that person. For many people the belief on whether is right or wrong all comes down to their personal ethics.

Voluntary Euthanasia is where a person is aided by a 3rd party to end their life in a painless way. In countries such as Belgium and the Netherlands this is a legal practice if a person chose to end their life. In Ireland this would be considered illegal.

Assisted Suicide is when someone wishes to take their own life and they have been deliberately guided or encouraged by another person to take end their life. This would be an offence contrary to Section 2 of the Criminal Law (Suicide) Act 1993 and a person assisting someone with suicide could be punished with a term of imprisonment of up to 14 years

Palliative Sedation is the act of a physician relieving pain for a terminal patient who is at the end of life, which generally results in death. For example, if a patient is undergoing end of life care for motor neurons disease, they doctor may provide a high dose of morphine, which will relieve any pain that patient is suffering mentally and/or physically however this could compromise the breathing ability of the patient which will result in them passing away.

Non-Voluntary Euthanasia is when a suffering person is not a position to make their consent regarding the termination of their life. This could be due to the person being too young, in a coma, suffering from severe brain damage etc…Usually the decision is based on previous expressed wishes if that conversation was ever had occurred pre-becoming terminal.

Infanticide is the intentionally killing of an infant. According to the Infanticide Act 1949, an infant is defined as a child under 12 months of age.

The 1949 law seems to be in relation to when the offence is committed by a woman. For example, Section 1 (1) states “On the preliminary investigation by the District Court of a charge against a woman for the murder of her child, being a child under the age of twelve months, the Justice may, if he thinks proper, alter the charge to one of infanticide and send her forward for trial on that charge.” (www.irishstatute.com, 1949). We can assume this was due to when the law was created in 1949, that the women would generally be the homemakers and the ones who spends most time with the children hence they would be more susceptible to committing this offence.

If a person is a found guilty of Infanticide due to a wilful act or an act of omission, they could be guilty of the offence which amounts to the same as Murder.

Section 22 of the Criminal Law (Insanity) Act 2006 (www.irishstatute.com, 2006) is an amendment to the 1949 act, which updates the definition from the original act of a ‘mental disorder’ and allows a conviction of manslaughter on the grounds of diminished responsibility.

Analyse the two types of homicide. What are the elements of and categories of murder and manslaughter? Discuss their definitions from statute law and from case law.

Section 4 (1) of the Criminal Justice Act 1964, titled ‘Malice’ is the legal statute in Ireland regarding the offence of Murder. The wording in legislation is as follows “Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.”.

In order to prove the offence of murder, the evidence should prove that the killing of a person was unlawful, meaning that there is not a good defence available that could help rebut the charge. The Actus Reus and Mens Rea of the offence must also be proved beyond a reasonable doubt. The Actus Reus in murder, would be the action that caused the death of a person. i.e. the suspected offender pulled the trigger of a gun that shot a person who subsequently died because of the offender’s action. The Mens Rea is about proving the intent of the suspected offender. In the wording of the legislation it is vital to prove beyond a reasonable doubt that the offender ‘intended to kill or cause serious injury’. The Mens Rea could be proved in several ways, in relation to someone being shot, the police would look for any motives, they would interview the offender and witnesses, they would establish if any preparations have been made, anything at all that could assist with proving the person intending on killing another.