inducement to plead guilty...

JoeB-

Hi

Is it correct that people can't be offered incentives to plead guilty to a crime or break their silence?

The reason I'm asking is because with motoring and penalty points people are offered a incentive to plead guilty and not go to court. They get reduced penalty points. Is this not unfair?
If people feel they have a legitimate cause for concern and must go to court to resolve it, if they lose they will receive mandatory increased punishment simply because they required the case to be proven against them?

Is it because motoring offences aren't criminal offences?

I don't have any cases or anything, just wondering about this...
Cheers
Joe

Thirdfox

I think for some (if not all) cases pleading guilty will be a mitigating factor in the sentencing e.g. in rape cases pleading guilty means that the victim will not be subjected to traumatic cross-examination by the defence team.

So it isn't really a case of being offered an incentive to plead guilty but rather knowing that the judge will take a guilty plea into consideration when sentencing.

Whether this practise is right or not is another case though.

To the best of my knowledge (I haven't studied this at all) motoring offences are also criminal offences... e.g. drink driving, not wearing seatbelt etc.

However my knowledge of jurisprudence and motoring offences are quite limited - hopefully someone else will have concrete information

besty

Thirdfox wrote:

To the best of my knowledge (I haven't studied this at all) motoring offences are also criminal offences... e.g. drink driving, not wearing seatbelt etc.

However my knowledge of jurisprudence and motoring offences are quite limited - hopefully someone else will have concrete information

To the best of my memory, motoring offences aren't criminal. They come under tort when dealing with negligence (obviously) and strict liability in some instances. They are akin to misdemeanors, but certainly not criminal unless it can be proven that the driver was grossly negligent.

Thirdfox

well for anyone who wants to find out the Irish statute site is listed below:

http://www.irishstatutebook.ie/

Sangre

The minimum penalty isn't increased if you go to court. Its the fact that its decreased if you pleaded guilty.
Its just to avoid pointless, time consuming court cases.

I seriously doubt motoring offences are tort though besty. Links?

JoeB-

Hi

I have a story to tell... about 18 months ago I did receive a speeding ticket on the N11... however I didn't receive a written record of the speed and from my reading of the relevant acts on www.irishstatutebook.ie I reckoned a written record was definitely required... so I didn't pay the speeding ticket, I intended to plead not guilty in court.

However the next thing that happened was that I recieved a letter saying that I had been convicted in my absence of the above offence... I was shocked, I hadn't recieved a summons... I thought the case had gone away because the DPP had decided I would defend on the written record thing which was publicized in the papers...

So I went straight to the district court and asked about the conviction... and lodged a motion to set the proceedings aside on the basis I hadn't recieved a summons. With the help of the head district court clerk I filled in the documentation and lodged the appeal, it was due to be heard in the district court.

On the day in the district court I applied for legal aid, denied because there was no possibility of prison time... then the garda who delivered the summons said that he had delivered it to my house, not to me personnelly or anybody but to the house.... the judge accepted this and denied my appeal, original conviction stood and that was that. Total court time 2-3 minutes...

So I felt I had no choice but to appeal this decision to the Circuit Court... on the grounds that I felt I had been steamrollered into a conviction and it didn't feel like justice to me? surely Europe wouldn't allow that conviction to stand? The actual point was that delivering a summons to a location doesn't mean that I recieved it even if I live there...

Anyway so I lodged the appeal to Circuit Court (about judge not setting proceedings aside, not on original conviction as I was out of time on that)... I filled out the forms myself this time and hoped a letter would come telling me the date of the appeal... It did come, I turned up, no legal aid but it worked out OK... the state choose not to contest the case and I got off, no conviction... some months later the High Court case was decided about the written record on speeding tickets thing and everybody who pleaded not guilty to such offences on this basis got off...

The point is that many people probably just payed the tickets because they were afraid of the increased penalties if they went to court... surely they have a right to have the case proven against them with no threats of increased penalties????

Cheers
Joe

hullaballoo

Wow, that's some story. Fair play to you for battling it out. I think you have a good point as well; most people don't know or understand the law that they are being held accountable to and that's a fairly major problem. I suppose we just have to acknowledge that there's a trade-off between ensuring that all of the technicalities of the law are conformed to and ensuring the safety of road-users ie absolute justice versus lawlessness.

besty

Sangre wrote:

I seriously doubt motoring offences are tort though besty

Negligence is the mens rea for careless driving.
In R V. Gosney The accused had driven their car the wrong way up the dual carriageway. She said she was doing this because the road layout at the junction was deceptive. She said even a reasonable person could have been confused. Court said that she was negligent. I know that the negligence aspect refers to the mens rea of the act but this is not far removed from tort.

Thirdfox

But saying mens rea and actus reus just re-inforces the idea that the offence is criminal.

"Actus non facit reum nisi mens sit rea – an act does not make a person guilty of crime unless his/her mind is also guilty ie criminal liability consists of both a physical and a mental element." - my criminal law reading list.

dermot_sheehan

JoeBallantine wrote:

Hi

Is it correct that people can't be offered incentives to plead guilty to a crime or break their silence?

The reason I'm asking is because with motoring and penalty points people are offered a incentive to plead guilty and not go to court. They get reduced penalty points. Is this not unfair?
If people feel they have a legitimate cause for concern and must go to court to resolve it, if they lose they will receive mandatory increased punishment simply because they required the case to be proven against them?

Is it because motoring offences aren't criminal offences?

I don't have any cases or anything, just wondering about this...
Cheers
Joe

You can't be induced to confess to a crime, if an inducement is offered the confession will be excluded. Pleading guilty to a crime is different, it's an acceptance of responsibility for your actions so part of the rehabilitative process and results in a reduced tariff from the court.

Motoring offences are criminal offences under the Road Traffic Act 1963, that's why they are tried in the district court.

Sangre

In some circuimstances remaining silent brings with it a prison sentence.

dermot_sheehan

Thirdfox wrote:

But saying mens rea and actus reus just re-inforces the idea that the offence is criminal.

"Actus non facit reum nisi mens sit rea – an act does not make a person guilty of crime unless his/her mind is also guilty ie criminal liability consists of both a physical and a mental element." - my criminal law reading list.

You should look up crimes without mens rea then such as crimes of strict and/or absolute liability. The actus reus on its own is criminal, no need to prove mens rea. These are mostly restricted to regulatory offences e.g. Shannon Fisheries Board v. Cavan Co. Co., but can include more serious ones such as bigamy and statutory rape.

dermot_sheehan

Sangre wrote:

In some circuimstances remaining silent brings with it a prison sentence.

Yes very limited circumstances, under the Offences Against the State Act 1939 when required to account for your wherabouts, and you refused, you commit an offence, this was upheld by the supreme court in DPP v. Heaney.

Thirdfox

But Heaney was overturned in the ECHR wasn't it?

And I didn't say that a crime is only committed when there is mens rea and actus reus but that when you start mentioning these two terms the act is most likely to be a criminal one rather than a tort based one.

Sangre

The ECHR has no relevance to us though even with the Act being adopted. its mere lip service.

dermot_sheehan

Thirdfox wrote:

But Heaney was overturned in the ECHR wasn't it?

And I didn't say that a crime is only committed when there is mens rea and actus reus but that when you start mentioning these two terms the act is most likely to be a criminal one rather than a tort based one.

ECHR awarded damages against Ireland yes, but even with the incorporation of the convention into irish law it means the only thing an irish court could do in the future if faced with a similar case is to issue a certificate of incombatibility.

Also mens rea is important in some torts, trespass must be committed intentionaly, negligence requires the mens rea of negligence, it's only some obscure torts like the rule in rylands v. fletcher that impose absolute liability regardless of the mental state of the tortfeasor.

kopparberg

JoeBallantine wrote:

Is it because motoring offences aren't criminal

motoring offences are criminal offences and joe is right that the highcourt ruled that the law stated that you should be issued with a "receipt". some courts ruled that the speeding fine was a receipt some ruled that it was not and that the speed gun should issue a receipt.
anyhow before the highcourt got to rule again the goverment changed the law and now you dont get a receipt.

joe by bringing the case to the circuit court you risked having a circuit court conviction(criminal) and that could have effected you getting visa's and garda clearance in the future....

johnnyskeleton

Anything that is an offence is a crime.

If someone has legitimate grounds to contest a charge, they shouldn't lose.

Turner

JoeBallantine wrote:

Hi

I have a story to tell... about 18 months ago I did receive a speeding ticket on the N11... however I didn't receive a written record of the speed and from my reading of the relevant acts on www.irishstatutebook.ie I reckoned a written record was definitely required... so I didn't pay the speeding ticket, I intended to plead not guilty in court.

However the next thing that happened was that I recieved a letter saying that I had been convicted in my absence of the above offence... I was shocked, I hadn't recieved a summons... I thought the case had gone away because the DPP had decided I would defend on the written record thing which was publicized in the papers...

So I went straight to the district court and asked about the conviction... and lodged a motion to set the proceedings aside on the basis I hadn't recieved a summons. With the help of the head district court clerk I filled in the documentation and lodged the appeal, it was due to be heard in the district court.

On the day in the district court I applied for legal aid, denied because there was no possibility of prison time... then the garda who delivered the summons said that he had delivered it to my house, not to me personnelly or anybody but to the house.... the judge accepted this and denied my appeal, original conviction stood and that was that. Total court time 2-3 minutes...

So I felt I had no choice but to appeal this decision to the Circuit Court... on the grounds that I felt I had been steamrollered into a conviction and it didn't feel like justice to me? surely Europe wouldn't allow that conviction to stand? The actual point was that delivering a summons to a location doesn't mean that I recieved it even if I live there...

Anyway so I lodged the appeal to Circuit Court (about judge not setting proceedings aside, not on original conviction as I was out of time on that)... I filled out the forms myself this time and hoped a letter would come telling me the date of the appeal... It did come, I turned up, no legal aid but it worked out OK... the state choose not to contest the case and I got off, no conviction... some months later the High Court case was decided about the written record on speeding tickets thing and everybody who pleaded not guilty to such offences on this basis got off...

The point is that many people probably just payed the tickets because they were afraid of the increased penalties if they went to court... surely they have a right to have the case proven against them with no threats of increased penalties????

Cheers
Joe

Thats why gardai are promoting high visibility.

Nobody wants to go through what you did, the simple way to do so is keep under the speed limit. Everybody knows in the back of their mind that if they get caught it could bring aload of strees and trouble.

Its how the system works.


By the way what address did you give the garda when he asked? and how did you not receive the summons when it was delivered by hand in an envelope to that address by a garda?

CantGetNoSleep

my constitutional law lecturer feels that this is open to challenge

edit: just checked the reasons, he feels that you waiver your right under Art 34.1 to have this heard in court if you accept the punishment, but he said that the double points which one could expect if they took the case to court means that the motorist did not freely renounce the right to go to court consequently meaning there was no true waiver, and this could be challenged under Art 34.1

JoeB-

Chief--- wrote:

Thats why gardai are promoting high visibility.

Nobody wants to go through what you did, the simple way to do so is keep under the speed limit. Everybody knows in the back of their mind that if they get caught it could bring aload of strees and trouble.

Its how the system works.

Not in my case, the Garda was hiding in a bush.

There are several ridiculous speed limits on certain roads in Ireland, should we obey them? I know people are supposed to but if the law is an ass I will happily ignore it. There is also the issue of bushes and trucks obscuring signs, and signs missing altogether, should the motorist be penalized for this? Of course if you dare to go to court because the sign was missing you run a very real risk of an increased penalty, that simply isn't fair.

In general, along with most Irish people I have very little respect for authority, expecially when the position they take is unreasonable.

Chief--- wrote:

By the way what address did you give the garda when he asked? and how did you not receive the summons when it was delivered by hand in an envelope to that address by a garda?

I don't recall the address I gave, probably the one on my drivers license. Delivering a summons to an address is a joke... there are many reasons why you may not recieve it. They should be delivered by hand to an individual, not to a house. I can't prove a negative, i.e I could never prove I didn't recieve something.. but the Garda says he delivered it to my house and that's fine... I must have recieved it then... ridiculous.

Victor

Thirdfox wrote:

To the best of my knowledge (I haven't studied this at all) motoring offences are also criminal offences... e.g. drink driving, not wearing seatbelt etc.

The distinction in Irish law is between offences and crimes. Crimes generally have sentences of 2 years or more, offences less.

dermot_sheehan

Victor wrote:

The distinction in Irish law is between offences and crimes. Crimes generally have sentences of 2 years or more, offences less.

There is no such distinction

There is a dictintion between indictable offences and summary offences, many offences are hybrid and can be dealt with in a summary or indictable manner.

There is also a distinction between arrestable and non-arrestable offences.

johnnyskeleton

CantGetNoSleep wrote:

my constitutional law lecturer feels that this is open to challenge

edit: just checked the reasons, he feels that you waiver your right under Art 34.1 to have this heard in court if you accept the punishment, but he said that the double points which one could expect if they took the case to court means that the motorist did not freely renounce the right to go to court consequently meaning there was no true waiver, and this could be challenged under Art 34.1

I would disagree with that line of reasoning. The HC does have original jurisdiction to hear all matters of law, but the HC's jurisdiction may be delegated by legislation where it would be appropriate to do so. In my view, the decision to send out a fixed charge offence would be a judicially reviewable decision (notwitstanding any practical difficulties such as not exhuasting alternative remedies) which is, I would argue, the safeguard that goes with every delegation of the HC's jurisdiction. (Tormey v. Ireland [1985] IR 289).