Photo by Conal Thomas

It was the day before Christmas Eve when Kelly Ann Jennings, a homeless, pregnant woman was arrested and charged with theft – for taking a packet of candles from a church near the Mater Hospital.

She was living in a squat at the time and, according to the Herald, she said she took the candles as she “was trying to keep herself safe”.

That was in 2014, and the case came before the courts in April of this year. The judge put back sentencing, waiting for a probation report.  

Anthony O’Connell was also in court in April, accused of stealing three Cadbury Creme Eggs from Lidl on Moore Street, according to the Independent, a charge he denied.

The judge expressed surprise that he was there at all. “Three state witnesses, him, a judge and a solicitor, for a Cadbury’s Creme Egg?” Judge Halpin asked, according to the article.

O’Connell was before the court again on Monday last, but the case was struck out because the Garda witness didn’t appear.

Is prosecuting cases like these a good use of resources? A Garda Press Officer said he couldn’t discuss individual cases, but he spoke generally about how decisions are taken on whether to prosecute for minor offences.

“Each case is taken on its merits,” he said. “Gardaí deal every day with vulnerable people and liaise with other agencies in relation to any assistance available.”

Who Decides?

“The decision to prosecute is a serious one. It can have a lasting effect on both the victim of the crime and the accused person,” said the Garda spokesperson.

“Only the DPP or one of his/her lawyers may decide whether to prosecute in serious cases for example, murder, sexual offences or fatal road accidents,” he says.

With minor offences, though, the Gardai can take the case themselves. They take it in the name of the DPP, and the DPP can instruct them on how to deal with the case, the spokesperson said.

Gardai can also decide to give an adult caution to someone for a minor offence, rather than prosecuting them, but this is usually only for first-time offenders.

A first-time offender who does come before the courts for a minor offence will normally get probation if they plead guilty, says Ivana Bacik, a criminologist at Trinity College Dublin. This means they won’t have a criminal record.

Garda Discretion

Gardaí can and do exercise discretion in deciding whether to bring cases to court, says Bacik.

There has been no significant research examining Garda discretion in Ireland, as far as she is aware. But there may be warning signs in the Garda Inspectorate Report on policing from 2015.

“There is a strong concern in that report that the Guards aren’t being trained to be consistent in the exercise of powers generally, so that would affect discretion,” she says.

In the UK, there is a large body of researching examining policing discretion, she says.

There they have found that race was a factor in stop-and-searches, she says. Non-white people were stopped more often, and this resulted in minorities having a disproportionate number of convictions. (A 2009 EU-MIDIS survey in Dublin found that 59 percent of Sub-Saharan Africans reported being stopped by police in the previous 12 months.)

That could also be a concern here in terms of the Traveller community, says Fíona Ní Chinnéide, the acting executive director of the Irish Penal Reform Trust.

“Certain minority groups are more targeted. You will probably find that Travellers are more policed and then end up with more convictions,” she says.

The Garda Press Office didn’t respond to a query about how they can be certain that personal bias doesn’t come into decisions to prosecute for minor offences.

Social Class

“Social class is undoubtedly a factor in the Irish criminal justice system, and it would be odd if it wasn’t, because it is in every other criminal justice system,” says Bacik who has done research into bias in sentencing.

She led a major piece of research in 1998, which looked at the effects of social class, or deprivation, on sentences in the district courts in Ireland.

They used the address of the accused person and the deprivation score for that area.

“We found that people were much more likely to be sent to prison, for the same offence, if they lived in very deprived areas,” says Bacik.

They also found there was a sharp increase in the likelihood of a custodial sentence being handed down when it came to people living in the most deprived areas.

“It wasn’t a gradual increase. In fact, what we found was a tipping point. When the level of disadvantage tips into seriously deprived, your risk of imprisonment goes way up,” she says.

This was in line with what researchers discovered in the US too, she says.

Repeat Minor Offenders

The biggest factor in deciding whether someone is prosecuted for a minor offence, is their previous convictions, says Bacik.

In the case of persistent repeat minor offenders, there may be some public benefit to prosecuting small crimes, she says.

“There is some quite strong evidence that taking a tough line on minor crime does actually have a beneficial effect for neighbourhoods,” Bacik says.

If there is an ongoing problem with public order in an area, some prosecutions, and policing that is seen to be effective, can be helpful, says Bacik. (Although there are better ways to tackle public order like public investment, she says.)

The big problem isn’t when minor cases go to court, but when they result in custodial sentences, says Bacik. “There are far too many people in jail in Ireland for short sentences for minor non-violent offences. That is where the public good is clearly not being served,” she says.

Imprisoning people for minor offences is counter-productive, she says, and we need to tackle disadvantage if that is the cause of the crime.

Ní Chinnéide of the Irish Penal Reform Trust says some people who offend have a string of very minor charges, but they are persistently offending and other people are fed up with that, such as shopkeepers or their neighbours.

These cases are very different from serious offending, she says. “For people who are living in poverty, a lot of punitive approaches only compound those issues and don’t address the offending behaviour,” she says.

Alternative Approaches

“There are a range of alternative approaches, but they require investment up front and the political will to do that,” says Ní Chinnéide.

The youth justice system is really successful, she says. The Garda Diversion Programme has been working well, according to a 2011 report.

The programme aims to support young people not to re-offend, by assigning a garda to the case and putting supports in place that might be educational, or counselling, or recreational activities.  

Ní Chinnéide would like to see a similar programme rolled out for adults who are involved in minor offences.

Although she says, “Judges are not wildly punitive of people with low level of offending”, she would like to see more community-service orders in place.

These can be positive, and some even provide an opportunity for the offender to get involved in work, she says.

Repeat low-level offenders should be dealt with in a community court, rather than criminal  justice court, she says.

In community courts, “there may be a punitive element, but it is mainly about putting in place services and treatment to deal with offending behaviour”, she says. Unfortunately, these are expensive to set up, she says.

Community courts, restorative justice, mentoring, integrated community service orders, which include treatment for addictions or mental health, these are the way to tackle minor offending, says Ni Chinnéide.

There are excellent pilot projects that should be rolled out nationally, says Bacik. One is a restorative justice project, and another is for people with mental-health problems.

“An awful lot of the people on recurrent public-order charges actually have psychiatric issues, says Bacik. “There is a pilot diversion project running in Dublin District Court, where the court diverts people to psychiatric services.”

This needs to be rolled out nationally, she says.

Laoise Neylon is a reporter for Dublin Inquirer. You can reach her at

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