BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Judge v District Judge James Scally & Ors [2005] IEHC 366 (04 November 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H366.html Cite as: [2006] 1 IR 491, [2005] IEHC 366 |
||
[New search] [Help]
|
Judgment Title: Judge v District Judge James Scally & Ors Composition of Court: Herbert J. Judgment by: Herbert J. Status of Judgment: Approved |
2005 IEHC 366 THE HIGH COURT [2004 No. 146 J.R.]JUDICIAL REVIEW BETWEEN AARON JUDGE
AND DISTRICT JUDGE JAMES SCALLY AND THE SUPERINTENDENT OF AN GARDA SÍOCHÁNA AT PEARSE STREET AND THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE DISTRICT COURT RULES COMMITTEE AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
In this matter an Order granting leave to the Applicant to seek judicial review was made by this Court, (Mr. Justice O’Neill) on the 23rd day of February, 2004, and the Court reserved the costs of that application to this hearing. On 31st August, 2003, the Applicant was arrested and brought to Pearse Street Garda Station and there charged, under the procedure recognised by Order 17 Rule 1 of the District Court Rules, 1997, with an offence under Section 49 subsection (4) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994, as amended by Section 23 of the Road Traffic Act, 2002. He was released on station bail under the provisions of Section 3 of the Criminal Justice, (Miscellaneous Provisions) Act, 1997, to appear at District Court No. 45 on 5th day of September, 2003. On that occasion he was remanded on continuing bail to the 3rd October, 2003. The Applicant appeared on that date but the prosecuting Garda, as stated in her affidavit in these proceedings, sworn 15th June, 2004, was unable to attend the court. She stated that she was completing a training course at the Garda Training College in Templemore, “and was unable to get a Garda to represent [her] in court on that date”. In exercise of his jurisdiction under Order 23 Rule 3 of the District Court Rules, 1997, the first named Respondent struck out the case. At paragraph 7 of her said affidavit, the prosecuting Garda states that following a report sent to the office of the third named Respondent on 15th January, 2004, she received directions on 31st January, 2004, to re-enter the matter without delay. At paragraph 8 of her said affidavit, the prosecuting Garda avers that she did so at 10.30am on 10th February, 2004, by way of sworn information before the first named Respondent and applied for the issue of a warrant for the arrest of the Applicant. It appears to me that this averment must be incorrect as to the date of the application because the warrant issued by the first named Respondent, which is exhibited in the affidavit grounding this Application, is dated 5th February, 2004. An unsigned and undated copy of the Information sworn before the first named Respondent by Garda Diana Campbell is exhibited at paragraph 5 of the Grounding Affidavit of Micheál Corry, Solicitor, sworn on 23rd February, 2004. It is accepted on all sides of this Application that it is a copy of the Information as sworn. It is entitled, “INFORMATION FOR ARREST WARRANT” District Court Area of Dublin Metropolitan District Warrant Pulse HD 12805 District No. Prosecutor Garda Diana Campbell Accused Aaron Judge The Information then continues as follows:-
I am a member of the Garda Síochána of Harcourt Terrace. On the 31st/8/2003 the accused Aaron Judge while driving a mechanically propelled vehicle registered number 01 D 85388 was stopped and arrested under suspicion of committing an offence under Section 49 of the Road Traffic Act, 1961 on the Shellburn Road at 5.10am and was conveyed to Pearse Street Garda Station where the accused Aaron Judge was requested to give two samples of his breath. The specimens the accused Aaron Judge provided had a concentration of 56 Microgrammes of alcohol per 100 Millilitres of Breath committing an offence under Section 49(4) of the Road Traffic Act, 1961. He was later charged on charge sheet No. 204257 and was handed a true copy of the charge sheet and bail bond. The Accused Aaron Judge had no reply after caution. On the 3/10/03 the case was struck out because there was no Garda present to deal with the case when called. This case is now being re-entered before the courts. I therefore apply for the issue of a warrant of arrest of the accused Aaron Judge of 37 Portersgate Gate, Cres, Clonsilla, Dublin 15.”
Section XI of the Act of 1851 provides as follows:-
2. In all Cases of Summary Jurisdiction the Justice may issue his Summons (Ba.) directed to such Person, requiring him to appear and answer to the Complaint, and it shall not be necessary that such Justice shall be the Justice or One of the Justices by whom the Complaint shall be afterwards heard and determined; and in all Cases of Offence where such Person shall not appear at the required Time and Place, and it shall be proved on Oath either that he was personally served with such Summons or that he is keeping out of the Way of such Service, (the Complaint being in Writing and on Oath,) the Justice may issue a Warrant to arrest and bring such Person before him or such other Justice of the same County, to answer to the said Complaint; and when such Person shall afterwards be arrested under such Warrant, the Justice before whom he shall be brought may either by Warrant (Eb.) commit him to Gaol, until the Hearing of the Complaint or may discharge him upon his entering into a Recognizance (C.), with or without Sureties, at the Discretion of the Justice, conditioned for his Appearance at such Hearing;
Section 41 of the Petty Sessions (Ireland) Act, 1851, provides as follows:-
These “provisions and enactments”, referred to in Section 4 of the Act of 1851 are in my judgment to be found contained in ‘An Act for Improving the Dublin Police’, 1842, 5 and 6 Victoria. chapter XXIV, (as amended). This Statute provides, by the words of enactment, that the Dublin City, - Dublin Police District Act, 1808, the Dublin Police District Act, 1824, the Dublin Police District Act, 1836, the Constabulary Ireland, - Dublin Police District Act, 1837, the Dublin Police District Act, 1837-8, the Dublin Police District Act, 1839, the Dublin Police District Act, 1840 and, that Act should be construed together as One Act. Section 49 of the Act of 1842, provides as follows:-
It was provided by Part III, Section 78 of the Courts of Justice Act, 1924 as follows:-
This important distinction between cases heard in the Petty Sessions Districts of Ireland and those heard in the Police District of Dublin Metropolis is clearly reflected in, for example, the preamble to the Summary Jurisdiction (Ireland) Act, 1851, 14 and 15 Victoria. chapter 92, (the Petty Sessions (Ireland) Act, 1851, being 14 and 15 Victoria. chapter 93), and the Summary Jurisdiction (Ireland) Act, 1862. Section 2(9) of the Interpretation Act, 1889, as applied by the Interpretation Act, 1923 and restricted by the Interpretation Act, 1937, provides the following definition:-
The legal position with regard to the exercise of this discretion by a Judge of the District Court is well summed up at page 133 of, “The Irish Justice of the Peace”, James O’Connor, (E Ponsonby Limited, Dublin, 1915) Part I as follows:-
…What is meant by proper exercise of discretion is that the justice must hear the application and reasonably and judicially determinate it, without misdirecting himself in law or allowing himself to be influenced by improper or extraneous considerations”.
This note of the decision in O’Brien v. Brabner was cited by Smyth, J. in an ex tempore judgment delivered by him on 17th February, 2004, (unreported), in the Matter of a consultative Case Stated, Director of Public Prosecutions v. Gary Dwyer, at p. 7 of the decision. This case is also cited at p. 31 of the second edition of, “Criminal Practice Procedure and Evidence in Eire”, by Robert L. Sands, (Sweet and Maxwell, London, 1939) and, by Professor Dermot Walsh in, “Criminal Procedure”, (Thomson/Roundhall, Dublin, 2002), at p. 212 note 259 at p. 653 note 98. In my judgment that decision of the Divisional Court should be applied in this jurisdiction with even greater rigour by reason of the right to personal liberty guaranteed by Article 40 s. 4 subs. 1 of the Constitution. In my judgment an offence contrary to Section 49(4) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994, as amended by Section 23 of the Road Traffic Act, 2002 having regard to the fact that it is made triable summarily, having regard to the moral quality of the Act involved and, having regard to the maximum penalty which the Oireachtas has seen fit to provide by the section, must be regarded as a “minor” offence for the purposes of Article 38 of the Constitution. While fully accepting the utter undesirability of a person driving or attempting to drive a mechanically propelled vehicle in a public place with an unlawful concentration of alcohol in his or her body, it would be straining language to describe an offence charged under this Section as being, “of a very serious nature”, in the sense in which this expression was used by the Divisional Court. I am satisfied that this is so despite the statutory power of arrest without warrant given to a member of the Garda Síochána who forms an opinion that such an offence is being or has been committed. I believe that it would be singularly inappropriate for this Court to endeavour to formulate any general definition of what might be regarded as a ‘very serious charge’ in the context of the decision in O’Brien v. Brabner (above cited). In my judgment there is nothing in the Information which was stated on Oath by Garda Diana Campbell before the first named Respondent which could constitute, “good Grounds”, for his issuing his Warrant for the arrest of the Applicant in this case. There were, for example, no circumstances pointing to an intention on his part to abscond. The nature of the charge in itself, for the reasons which I have already stated, could not have justified the first named Respondent, actually exercising his discretion, in issuing his warrant, for to do so would run contrary to the principle of Law as stated in O’Brien v. Brabner (above cited). I find that the first named Respondent in issuing his Warrant unfortunately misdirected himself in Law and acted ultra vires his powers in failing to remain within the limits of the jurisdiction conferred upon him by Sections 49 and 51 of the Dublin Police Act, 1842. In my judgment the first named Respondent issued his Warrant for the arrest of the Applicant in this case without any evidence being sworn before him, other than as to the nature of the alleged offence charged and, the reason why the case was struck out. In such circumstances he could not “have really and bona fide exercised [his] discretion”. I find that the first named Respondent clearly failed to address at all the essential question which Section 51 of the Act of 1842 required him to address. This resulted in his making an order which he had no jurisdiction to make. There was simply nothing in the sworn information before him to enable the first named Respondent to be satisfied that there were any, much less any sufficient, “good grounds” to justify the issuing of a Warrant in this case. Unfortunately, the very plain impression which I have formed from what is averred at paragraphs 9 and 12 of the Affidavit of Garda Diana Campbell is that both the Prosecuting Garda and the first named Respondent operated on this occasion what had in all probability become an established practice of convenience in cases of this nature. This enabled the case to be reinstated expeditiously on a mutual, even if unexpressed, understanding that the arrest would be effected at such a time and place as to cause a minimum of inconvenience and embarrassment to the party charged so that the arrest when effected bore only the merest semblance to the execution of a Warrant. However convenient, expeditious and even discrete this procedure might have been, in my judgment it flew entirely in the face of Article 40 Section 4 subs. 1 of the Constitution, of Sections 49 and 51 of the Dublin Police Act, 1842, and, of the principles of Law as stated in O’Brien v. Brabner (above cited). It is unnecessary for this Court to consider the argument advanced on behalf of the Applicant in this case that Order 16 rule 5 of the District Court Rules 1997, insofar as it purports to confer on a Judge of the District Court, a power to issue a Warrant in circumstances which are not provided for in Section 11(2) of the Petty Sessions (Ireland) Act, 1851, is ultra vires the powers of the District Court Rules Committee as conferred by Section 91 of the Courts of Justice Act, 1924. This submission, if required to be addressed, would also have raised a preliminary point as to whether this alleged lack of powers should first be established in an ordinary action rather than in the course of Judicial Review proceedings. In regard to the jurisdiction which I find was conferred on the first named Respondent by Section 51 of the Dublin Police Act, 1842, to issue a Warrant “in any event”, - that is, without first having to issue a summons, - in the circumstances stipulated in the Section, I do not have to consider the submission on behalf of the Applicant that the Provisions of Section 27 of the Criminal Justice Administration Act, 1914, Section 49(8) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994 and, Order 16 rule 5 of the District Court Rules, 1997 cannot amend or extend the provisions of Section 11 of the Petty Sessions (Ireland) Act, 1851 so as to entitle a Judge of District Court to issue a Warrant in cases triable summarily where by common law or by statute there is a power to arrest a person without a warrant. The Court will therefore grant an order of Certiorari directing that the Order of the first named Respondent, made 5th February, 2004, be delivered up for the purpose of being quashed. OTHER CASES REFERRED TO IN ARGUMENT Attorney General v. Healy [1927] I.R. 460 Attorney General v. Bruen [1935] I.R. 617
Holloway v. Belenos Publications Limited and Others [1987] I.L.R.M. 790 Hutch v. The Governor of Wheatfield Prison and Others (Unreported – Supreme Court – 17th November, 1992). National Authority for Occupational Safety and Health v. Fingal County Council [1997] 2 I.R. 547 Great Southern and Western Railway Company v. Leyden [1907] 2 I.R. 160 Clarke v. The Member in Charge Terenure Garda Station [2001] 4 I.R. 17 |
