Criminal Law in Ireland: An overview for security operatives

Tony Security Leave a Comment

Following on from last weeks article on civil law and liabilty I’m going to do a series of articles on areas of Irish law and how it affects the role of the security operative. In this industry knowledge is power and blindly following the instruction of a supervisor or SOP when it comes to matters of law is not good enough. To apply legal principles at work we must have an underlying understanding much deeper than the law we are applying. In this article I’m going to take a look at the fundamentals of criminal law. The defining criteria for an act to be a crime and the various classifications of crime and their meaning to the security operative. This is not going to delve into specific parts of criminal (I’ll do that later) but it is an overview of the basic principles of criminal law and how it differs from civil law.
Principle features of criminal law
To explain the principles of criminal law we must first be able to define that to which criminal law refers, ‘a crime’. Defining a crime in a general sense may seem simple but in a legal sense it is a more technical matter. To define a crime, we can first look at the ingredients required for an act to be considered criminal:
  1. The act must constitute a wrongdoing against the public at large. A crime isn’t committed against another person despite how aggrieved the injured party may feel. The crime is committed against the public.
  2. The act must be one which attracts a punishment. The punishment of the guilty of is one of the central tenets of our society. Those who do wrong against society deserve punishment on behalf of society.
  3. The person must possess ‘mens rea’ the guilty mind at the time of committing the act. The Latin phrase “actus reus non facit reum nisi mens sit rea” which means “the act is not culpable unless the mind is guilty” is a central maxim of criminal law. There are some exceptions to this in statute and strict liability cases.

Criminal Case Law – Melling v Ó Mathghamhna

In this case (Melling v Ó Mathghamhna [1962] IR 1) the definition for a crime was laid out by the court. The criterion established above in the principle features was set out as result of this case. The case involved the plaintiff, Peter Melling who was charged in the District Court in relation to the smuggling of butter into the State. The court had to determine if this amounted to a criminal charge. The Supreme Court held it did as it fit the three criteria above. The defendant was aware of the law as it was in place. The act constituted a wrong against society at large as it lost money to the state. The final criteria as decided by the court was that the act warrants a punishment. The significance of this ruling by Kingsmill J in the Supreme Court was to devise the criteria above which are used to this day to clarify whether an act is a crime and is still regularly referenced in difficult criminal cases.

Constitution and crime

Where an act meets these three criteria it can be considered criminal and therefore a crime. Crimes are dealt with in the criminal courts and the procedural differences between these and the civil court processes will be discussed later. The criminal law processes are guided by Article 38 of the Constitution which provides every person with rights including that:

  1. no person shall be tried on any criminal charge save in due course of law
  1. minor offences may be tried by courts of summary jurisdiction (District Court)
  1. save in the case of trial of offences under section 2 no person shall be tried on any criminal charge without a jury

In simple terms this provides that a person accused of a serious crime is entitled to have their guilt determined by a jury of his or her peers. Summary (minor) offences may be determined solely by a judge.

While criminal law has its roots in common law in modern times most of criminal law cases are statute based. Statute law is legislation passed by the Houses of the Oireacthas and placed in statute. They then become a rule of the state. When this written rule is breached a criminal case is taken against the alleged perpetrator by the state.

Classification of crimes

When discussing criminal law, it is important to note that not all crimes are equal. There are various types and classifications of crime ranging from the minor to the most serious:
  1. Summary offences- these are minor crimes dealt with in the district court by a judge and no jury. Examples of summary offences may be public order offences or motoring offences. The maximum sentence for summary offences is set out by Section 11 the Criminal Justice Act 1984 at two years. It is important that security operatives are aware of this as these offences are not capable of being arrested by a private citizen.
  2. Indictable offences – indictable offences are those which may only be tried in front of jury in the absence of a guilty plea or those in which the state seeks a penalty higher than that which the District Court can dispense.
  3. Arrestable offences- any crime on which the maximum punishment upon indictment is 5 years or more is classified as an arrestable offence. This means that the person accused of the crime may be arrested without warrant by the Gardai or a private citizen (security operative).
  4. Minor and non-minor offences. This classification comes from the Constitution which sets out that minor offences may be tried summarily in the District Court without a judge. There are two set principles laid out which lay out what is minor and non-minor including the severity of the punishment and the moral quality of the alleged offence.
To confuse things further there are also indictable/arrestable offence which are dealt with summarily in the District Court. An example of this is theft (shoplifting). Theft carries a maximum term on conviction of 10 years making it both indictable and arrestable. However theft is almost always tried summarily in a district court due to the low value of the crime.

Presumption of innocence

In both criminal and civil proceeding there is a presumption of innocence on the defendant throughout. In both areas the state or private party who begins proceeding has the onus of proof. They must prove their case in court and the defendant has no onus to prove their innocence. Exceptions to this may be found both in statute and common law but the general principle holds for most instances.

Crossover between criminal and civil law

There can be times where an issue can be of both a criminal and a civil concern. In circumstances such as these the criminal concern takes priority over the civil issue however once the criminal issue has ben completed there may still be civil liability to be decided upon. Cases such as these arise around intentional torts. An intentional tort is one that arises from the intentional act (criminal or otherwise) of a wrongdoer. These can include subjects such as trespass, assault or false imprisonment. In each of the cases above a person who is alleged to have committed these acts may face criminal charges from the state for breaches of statute law in relation to each. Whether the outcome of these criminal charges is successful or not there may still be civil liability issues in respect of injury, harm or damage done by the person responsible.

So for example a door supervisor might be charged with assault on a patron. They may be cleared of that assault or it might not even have enough evidence to proceed to a court. However there may still be a civil claim of assault afterwards.

The desired outcomes

One of the primary differences in criminal and civil law is the desired outcome of the case.

One well known quotation on the differences in outcome comes from William Geldart who wrote “The difference between civil law and criminal law turns on the difference between two objects which law seeks to pursue – redress or punishment”. (Geldart,1984).

When dealing with cases of civil law the goal of the court is to assess if a wrong has taken place, the defendants role in that wrong and the correct level of redress required to remedy the wrong.

Once that redress has been made in the form of compensation the case is answered. However, the redress is always only measured to ensure that the person who has suffered a loss is no longer disadvantaged and there is no additional punishment to the defendant above and beyond this level.

In a criminal case however, the desired outcome is to punish the person who has done wrong to society. To satisfy society that the person will suffer for the wrong that they have done. There is no element of making right the guilty person actions. There is only the notion of what is in the public good. The punishments seek not only to make the individual suffer for his/her crime but to serve as a deterrent to others who may be considering a similar act. Many in the security industry will argue that the justice system has lost its way in this area but it’s still theoretically the case.

Burden of proof

This is perhaps the greatest difference in criminal and civil law. The burden of proof can be described as the required standard to which the evidence must rise to prove one’s case. In this regard criminal and civil law differ greatly. In criminal law the states case must reach a burden of proof known as ‘beyond a reasonable doubt’. This requirement which is in line with many other developed countries requires a very high level of evidence. In jury trials the judge will give a clear explanation to the jurors as to what beyond a reasonable doubt means. It means that where there are two versions of events given by the state and the defence and there is a doubt as to which one is true then the person cannot be found guilty as there is reasonable doubt. Only where there is no reasonable doubt in the mind of the juror can a person be found guilty. This results in a lot of criminal cases in Ireland not getting anywhere near a court.

In civil cases the burden of proof is the balance of probability. The balance of probability is a much lower standard of proof then beyond a reasonable doubt. The difference between both is often shown in the crossover cases mentioned above relating to intentional torts. There are numerous cases where the burden of proof in for example an assault case does not meet the beyond a reasonable doubt standard in a criminal case however a follow up civil case taken by the victim can result in compensation being awarded based on the balance of probability.

Summary

This article was never meant to be a detailed look through various criminal laws and their application in the security industry. It’s meant to be an overview and something that provoked thoughts and questions. I don’t claim to be a legal expert but I do my research and ask the right questions. I advise everybody else out there to do the same. I’m going to do a few more of these on specific pieces of law that security should know about in the coming weeks so if there any you want to talk about please ask. Until next week enjoy my legal ravings and stay safe.

Leave a Reply

Your email address will not be published. Required fields are marked *