Criminal Law
Practice Areas
For individuals who have had an encounter with the Gardai and may be facing a possible criminal charge, it is extremely important to seek out the services of a dedicated criminal defence Solicitor. Killian McCarthy is solicitor specialising in all areas of criminal defence litigation.
Killian McCarthy is a member of the Free Legal Aid Scheme and in addition to representing clients in Courts, Killian McCarthy also attends and represents clients in Garda Stations. Killian McCarthy regularly defends clients charged or summons with criminal offences throughout Cork. He handles all matters from minor public order and road traffic matters in the District Court, to serious assault, sexual offences and drugs offences in the Circuit Court and murder or rape charges in the Central Criminal Court.
Legal Practice Areas
Drugs
It is vital that immediate legal advice is sought if you are arrested or charged with an offence under the Misuse of Drugs Acts as a conviction may have a very serious effect on your career and educational prospects and your ability to travel. If you or a family member are arrested for an offence under this Act or the Gardai wish to take a statement from you in relation to any drugs offence or if you receive a summons or are charged in relation to a drugs charges, you should immediately seek advice.
There are a number of different offences including:
Possession of controlled drugs – cannabis or cannabis resin
Under the Misuse of Drugs Acts, anyone found in possession of cannabis or cannabis resin or any other controlled drug is guilty of an offence subject to an exemption. The penalty imposed by a court depends on what type of drug it is, whether it is a first offence and whether the case is dealt with in the District Court or on indictment in the Circuit Court. Penalties include a fine and/ or prison sentence.
Cultivation – Growing cannabis plants
It is also an offence to grow cannabis plants or opium poppies. Cases of this nature are commonly known as ‘Growhouse’ cases. Depending on the quantity of plants involved, your case may be dealt with in the District Court, where there is a maximum term of imprisonment of twelve months or in Circuit Court, where the maximum term of imprisonment is fourteen years.
Possession of controlled drugs for sale or supply
It is an offence to be in possession of a controlled drug with the intention of selling it. Depending on the “street value” of the drug, your case may be dealt with in the District Court where lesser penalties will apply.
Where the market value of the drugs is €13,000 or more, the person, if convicted, is liable to a minimum sentence of 10 years. This does not apply, however, where the court is satisfied there are exceptional circumstances. Similar penalties apply to someone convicted of importing drugs with a value of €13,000 or more. Killian McCarthy has extensive experience in representing clients charged with possession of controlled drugs and offences of this nature. We have successfully defended clients, in the circuit court, who have been charged with these offences. We have represented clients who have entered guilty pleas to charges under section 15A. We have successfully put forward mitigation for our clients which allowed the court to depart from the mandatory minimum sentence of 10 years.
Possession of drugs at music festivals
Killian McCarthy has represented clients throughout the Cork City and Cork County who have been summoned to appear in court having been found in possession of drugs at a music festivals.
Public Order Offences
Public Order offences are second only to road traffic offences in the number of prosecutions coming before the courts. The Public Order Act, 1994 lists a number of offences most of which may only be dealt with in the District Court.
The most frequently prosecuted are for the offences commonly referred to as ‘Drunk & Disorderly’ and ‘Breach of the Peace’. A third offence which is often charged together with these two offences is the offence of failing to comply with a direction of a member of An Garda Siochana.
The penalties for these offences are as follows:
- Section 4 (‘Drunk & Disorderly): a maximum fine of €500
- Section 6 (‘Breach of the Peace’): a maximum fine of €1000 and a maximum custodial sentence of 3 months.
- Section 8: (‘Failing to Comply’): A maximum fine of €1000 and a maximum custodial sentence of 6 months.
There are several essential proofs in each of these offences which the prosecution must prove to the requisite standard in order to secure a conviction. You should discuss your case with a Killian McCarthy at the earliest opportunity.
Assaults
There are three main categories of assaults provided for in the Non Fatal Offences against the Person Act 1997.
They differ in terms of seriousness. Section 2 assault which is considered a minor assault and is dealt with in the District Court. This offence carries a maximum sentence of six months imprisonment.
Section 3 of the Act, is an assault causing harm, and can be tried in either the District Court, which carries a maximum sentence of twelve months imprisonment or in the Circuit Court (depending on the serious of the injuries involved) which carries a maximum sentence of five years imprisonment.
Section 4 assault causing serious harm offence which can only be tried on Indictment in the Circuit Court and carries a maximum sentence of life imprisonment. The Court of Appeal has set out sentencing guidelines for section 4 assaults in DPP v Mark O’Sullivan
There are several potential defences to an assault charge. Perhaps the most frequently argued by an accused is that he was acting in self defence. There is much caselaw on the subject. The defence may only be argued successfully when the amount of force used in self defence was reasonable. What is reasonable will depend on several factors and will vary from case to case depending on the particular circumstances that existed at the time.
Sexual Offences
An allegation of a sexual offence can have serious consequences for a person’s reputation, even before a prosecution commences, and even when a person is subsequently found to be innocent following trial.
With all offences, the interview in the Garda Station is extremely important and can determine the DPP’s decision to prosecute and how the subsequent trial unfolds. It is therefore essential that you receive experienced legal advice before you are questioned in the Garda Station. If you think you may be charged with an offence or that an allegation may be made against you, you should contact Killian McCarthy immediately.
Rape
The Law governing this offence is contained in Criminal Law (Rape) Act 1981 or the Criminal Law (Rape) (Amendment) Act 1990. It will all depend on a number of circumstances as to which Act applies, including age of the alleged victim, the evidence and the circumstances surrounding the accusations. The Acts also cover the offence of attempted rape.
Statutory Rape
This is a term commonly used when people are referring to unlawful sexual contact with a person under 17 years of age. Charges in respect of this offence are brought under The Criminal Law ( Sexual Offences) Act 2006 which replaced the Criminal Law (Amendment) Act 1935.
Defilement of a child under the age of 15 years
The Criminal Law (Sexual Offences) Act 2006 as amended by the Criminal Law (Sexual Offences) Act 2017 makes it a criminal offence to engage or attempt to engage in sexual acts with a child under the age of 15 years. Under the Act an accused person may defend themselves on the basis that they believed the child to be 15 years or older. However it will not be a defence to show that the child under 15 years consented to the sexual act.
Defilement of a child under the age of 17 years
Pursuant to Section 3 of the Criminal Law (Sex Offences) Act 2006 as amended by Section 5 of the Criminal Law (Sexual Offences) Amendment) Act 2007 it is an offence to engage or attempt to engage in a sexual act with a child under the age of 17 years. An accused person may argue that they honestly believed that the child was aged 17 years or older. However it is not a defence to show that the child consented to the sexual act. If a person convicted of this offence is less than two years older than the victim they will not be placed on the Sex Offenders Register the Sex Offenders Act 2001.
The legislation in this area was further amended, with the commencement of the Criminal Law (Sexual Offences) Act 2017, to reflect the significant number of cases coming before the courts involving allegations of sexual offending between minors. The 2017 Act now provides a full defence for an accused, subject to certain conditions, where it is alleged that the child consented to the sexual act.
Child Trafficking and Pornography
The Law in this area is relatively new and can be found under The Child Trafficking and Pornography Act 1998, as amended by Section 6 of the Criminal Law (Sexual Offences) Amendment Act 2007 as amended by Section 12 of the Criminal Law (Sexual Offences) Act 2017.
For the purpose of these Acts a child is deemed to be a person under 17 years and the Acts contain a range of offences including:-
- Meeting a child for the purpose of sexual exploitation
- Allowing a child to be used for pornography
- Child Trafficking and taking a child to be used for sexual exploitation
- Possession of child pornography
- Producing, distributing, printing and or publishing child pornography.
Section 8 of the 2017 Act, was enacted to counter offending, where persons send or request sexually explicit material to children via social media, Whatsapp, Snapchat etc,
Firearms Offences
Charges involving gun crime, knife crime or offensive weapons require expert legal advice because of the potential complexity of the charges and the circumstances which may lead to an individual being charged.
Owning a gun without a firearms licence will also likely to lead to prosecution – and carrying a blade or other item to be used in self-defence can also lead to criminal charges.
Other items may also be considered as offensive weapons, depending on the circumstances of arrest or stop and search – for example, a cricket bat, length of wood, DIY tool or a pointed item which if concealed may lead to criminal charges being brought.
Possession of firearm or ammunition in suspicious circumstances
It is an offence for a person to possess or control a firearm in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose
An offence under this section carries a potential maximum term of imprisonment of 14 years and a mandatory minimum sentence of 5 years. The court is allowed to depart from the mandatory minimum sentence if exceptional circumstances exist. It is essential that a person gets experienced legal representation in these matters.
Killian McCarthy can advise at any stage of a charge involving gun and knife crime and offensive weapons – even before a charge has been brought, or if there is a likelihood of arrest or Gardai interview under caution. It is effectively for the person in possession of what is suspected to be an offensive weapon or a knife to demonstrate that they have good reason for so doing. The most effective time for putting forward an explanation will often be at the Garda interview under caution.
It is advisable for clients to uphold their right to remain silent and not discuss the case with the Garda until you have had an opportunity to consult with a solicitor. Killian McCarthy is available to throughout Cork City and County 24/7, 365 days a year and can usually reach a Garda station within 45 minutes to advise on gun/knife/offensive weapons charges.
Theft and fraud Offences
These statutory offences are set out in the Criminal Justice (Theft & Fraud Offences) Act, 2001. The offences range from simple theft of a single item of very little value to large scale robberies and ‘white collar’ crimes involving several million euros.
Offences under this Act may be tried in the District Court or the Circuit Court. The Director of Public Prosecutions (the DPP) will initially give ‘a direction’ as to which Court the case is to be tried in. If the Director of Public Prosecutions directs the case is to be heard in the Circuit Court, then the case will be ‘sent forward’ on indictment to the Circuit Court. If the Director directs that the case is fit to be tried in the District Court, the District Court Judge will hear a brief outline of the facts and, if he or she considers the case to be ‘minor’, they will ‘accept jurisdiction’ and the matter can be tried in the District Court with the accused’s consent. The requirement that the accused gives their consent is almost unique to Theft & Fraud Offences (there are others). The accused has a right to have his case tried in the Circuit Court notwithstanding that the DPP and the District Court Judge considers the offence suitable for the District Court.
Most accused persons will ‘elect’ for their case to be tried in the District Court as the advantages are obvious. However, it may, in certain circumstances, be more prudent to have your case tried in the Circuit Court. It is clearly an extremely important decision and legal advice from an experienced lawyer is essential.