Garda and DPP need proper resources to bring serious cases before Circuit Court
Last week, the Public Accounts Committee was told by a senior Department of Justice official that most burglaries are dealt with by the District Court and that it was the perception of the department that the judiciary didn't view burglary as a serious offence.
Assistant Secretary General Jimmy Martin said that while it was feared judges had treated burglary as a non-serious offence, the department was not in a position to confirm this, due to the separation of powers.
The official has since apologised to the President of the District Court, Judge Rosemary Horgan.
In a letter circulated to all District Court judges, Mr Martin said that he never meant to criticise the judiciary.
He said that he only intended to explain to deputies - during a discussion on offences committed by repeat offenders on bail - that the grounds for refusing bail are limited.
Although the controversy was quickly subdued, Mr Martin's initial remarks hit a raw nerve at a time when burglaries, especially in rural areas, have become a major pre-election issue.
Under our criminal justice system, a lot of offences can be dealt with before the District Court, where the maximum penalty that can be imposed is 12 months.
In theory, this is for less serious offences. And given that some assaults, burglaries, robberies and so on are less serious than others, this makes perfect sense.
Prosecuting less serious cases before the District Court saves a lot of time and money.
More serious cases are (in theory) sent forward to the Circuit Court. This is a more elaborate and expensive procedure, as it involves trial by jury.
If convicted, the defendant faces a much more severe penalty - in the case of burglary, for example, a sentence of up to 14 years can be imposed upon conviction.
The decision, therefore, to prosecute in the District or Circuit Court has a major impact on the sentence imposed.
Judges, however, do not make the decision where to prosecute.
Burglary, like some other offences, can only be prosecuted before the District Court, where the defendant, the DPP and the District Judge agree to it.
It is generally only after the defence and the prosecution has had their say that the District Judge decides whether the case should be tried in the District Court.
However, if the judge thinks the case is too serious, it will be sent forward to the Circuit Court.
As a general rule of thumb, judges will allow cases to be dealt with in the District Court, where both the defence and prosecution want it to stay there.
Unsurprisingly, the overwhelming majority of defendants choose to stay in the District Court.
After all, why would a burglar want to increase his exposure on sentence fourteen-fold?
The DPP also has an incentive to keep cases in the District Court - it's cheaper and speedier to prosecute them there rather than going to the expense of a less streamlined jury trial.
Given the savage cuts to the DPP's budget, it is hardly surprising that the DPP has opted to prosecute most cases before the District Court.
Indeed, one of the remarkable features of the austerity measures of recent years has been the reduction in the number of cases that the DPP has prosecuted before the Circuit Court.
More and more cases have been left to be dealt with by the District Court.
Even some that would be considered to be very serious cases.
This does not reflect an equivalent fall off in the number of serious crimes being committed.
Rather, it reflects the reality that the current DPP, Claire Loftus, must face if she is to stay within the budget given to her.
The simple reality is that the office of the DPP has been forced to leave serious offences to be dealt with before the District Court because Government has not provided the resources to prosecute those cases before the Circuit Court, where they belong.
Over the last number of years, the District Court has dealt with cases which would never have been countenanced as non-serious. It is now quite commonplace for stabbings, random sexual assaults (even on minors) and substantial frauds to be dealt with before the District Court.
The slashing of Garda resources in recent years has also meant that the profile of cases coming before the courts generally is very much skewed in favour of more serious offences - minor offences are prosecuted much less frequently now.
We can hardly be surprised that lighter sentences are imposed by the District Court (which, after all, has much more limited sentencing powers) if we do not provide sufficient resources to allow the Gardaí and the DPP to bring serious cases before the Circuit Court.
As long ago as 2010 the former DPP, James Hamilton, in his annual report commented that resources were so stretched that further pressure would mean that "something would have to give". Since then, the budget of the DPP has been cut by a further 20pc.
The political response to concern over the rise in burglaries has been entirely predictable - more legislative change.
After all, it costs nothing to amend the law.
The more obvious solution is to properly fund the prosecution system that is already there, rather than seeking to transfer blame to others.
Remy Farrell is a Senior Counsel