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1. This case is a challenge to the constitutionality of the proviso contained in Section 4 of the Summary Jurisdiction Act, 1857 whereby a District Judge may not refuse to state a case where application for that purpose is made to the District Judge by or under the direction of the Attorney General or the Director of Public Prosecutions.

2. The Applicant appeared before the District Court on the 12th February, 1998 to answer a complaint pursuant to the provisions of the Road Traffic Act, 1961, Section 49(3) and (6) (a), relating to driving a mechanically propelled vehicle in a public place while under the influence of alcohol in excess of the permissible level.

3. Garda Michael Fenlon of Santry Garda Station gave evidence that on the 7th March, 1997 at 10.50 p.m. while on motorcycle duty he attended the scene of a road traffic accident near the Comet public house on the Swords Road in Co. Dublin. Two cars were involved, one of which was owned by the Applicant. He emerged from the Comet pub to inform the Garda that he was the owner and driver of one of the vehicles. Garda Fenlon noted that the Applicant seemed unsteady on his feet and enquired if he had been drinking. The Applicant stated he had consumed two pints of Guinness before the accident, but had gone back into the pub after the accident where the Manager had given him a large whiskey to “calm his nerves”.

4. Garda Fenlon formed the opinion that the Applicant had consumed intoxicating liquor to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place and arrested the Applicant who was conveyed to Santry Garda Station where the Applicant provided a urine sample. A certificate was received from the Medical Bureau of Road Safety, showing a concentration of 216 milligrams of alcohol per 100 mls of urine.

5. In the course of the hearing, Garda Fenlon stated that he knew the Applicant had consumed a large whiskey after the accident as he had spoken with the bar owner who had confessed to him that he had given this whiskey to the Applicant who was in shock after the accident. The Applicants wife had also been given an alcoholic beverage.

6. Counsel for the Applicant sought a dismiss of the case on the basis that the Applicant would not have been over the limit but for the extra drink which he had taken in the aftermath of the accident.

7. The District Judge took the view that the Applicants high reading was due to the large whiskey which the bar Manager had given to him. He also expressed himself satisfied that there was no evidence to suggest that the Applicant was attempting to frustrate the prosecution. In the circumstances he dismissed the charge.

8. No application was made either during the hearing or immediately upon its determination to the learned District Judge to state a case to the High Court on any point of law.

9. However, on the 25th February, 1998, the DPP served an application on the District Judge requiring him to state a case to the High Court pursuant to Section 2 of the Summary Jurisdiction Act, 1857 and Section 51 of the Courts (Supplemental Provisions) Act, 1961. The opinion of the High Court was to be sought on whether the District Judge was correct in law in dismissing the said charge “on the grounds that the prosecuting Garda had given evidence that the Applicant had been given a large alcoholic beverage after the driving complained of and before the specimen was subsequently taken from him”.

10. On the 20th July, 1998 the Applicant sought and obtained leave to bring judicial review proceedings on various grounds set out in the Order of the President of the High Court made on that date. By Order of Kelly J. made on the 13th day of March, 2001 the Applicant was granted liberty to amend the Statement for Judicial Review to seek the following declaration:-

11. In the course of the hearing before this Court the various reliefs sought and the grounds relied upon boiled down to the net issue as to whether Section 4 of the Summary Jurisdiction Act, 1857 was incompatible with the provisions of the Constitution.

12. Mr. Hogan on behalf of the Applicant submits that the stating of a case by District Judge is an exercise of judicial discretion relating to a matter of justiciable controversy. The section complained of, by stripping the District Judge of any discretion when requested to state a case by the DPP, amounts to an unwarranted interference in the judicial domain. Furthermore, this power avails one party to the proceedings only, and is thus discriminatory.

13. The relevant provisions of the Summary Jurisdiction Act, 1857 provide as follows:-

14. On behalf of the Applicant, Mr. Hogan eventually accepted that these statutory provisions were not “impliedly repealed” by the Courts of Justice Act, 1924, given that in AG (Fahy) -v- Bruen (1936) IR 750, the Supreme Court held that the type of case stated provided for by the Summary Jurisdiction Act, 1857 was continued in force by the Courts of Justice Act, 1924 as adapted by that Act.

15. During the course of the hearing before this Court, it was or became the common position of the parties that Section 4 of the 1857 Act survived the various amendments and repeals outlined above and provides the statutory basis for the provision contained in the District Court Rules at O. 102, R. 15 which provides:-

16. Mr. Hogan argues that the statutory proviso, as reflected in Rule 15, is objectionable. It is, he says, an unwarranted interference in the judicial domain. He submits it is both unnecessary and discriminatory to vest a power of such considerable importance is one side only. Further, the effect of the proviso is to supplant the District Judge entirely, so that the DPP, in effect, becomes the arbiter of what may be considered “frivolous”, thereby reducing the District Judge to no more than a cipher who is mandated to exercise his discretion in only one way. This situation, he argues, cannot be compatible with the constitutional requirement of separation of powers and the exercise of judicial discretion in justiciable controversies by Judges alone. The decision whether or not to state a case is quintessentially a judicial decision. In support of his submission, Mr. Hogan relied upon the decision of the Supreme Court in the State (McEldowney) -v- Kelleher and Another (1983) IR 289.

17. In that case, a District Judge was directed under Section 13(4) of the Street and House to House Collections Act, 1962 to disallow an appeal brought before him if, at the hearing, a police officer stated on oath that he had reasonable grounds to believe that the proceeds of the collection would be used for the benefit of an illegal organisation. The Supreme Court found that the particular section constituted an impermissible invasion of the judicial domain by requiring that justiciable proceedings, within the exclusive competence of the Courts established under the constitution, be determined by the legislator.

18. In the course of delivering the Courts judgment, Walshe J. stated at p.303:-

19. Mr. Gaffney for the Respondent argued, firstly, that while a decision to state a case was a judicial function and part of the administration of justice, it fell short of being the determination of a justiciable controversy. No facts of a determinative nature were resolved in the context of a decision to grant or refuse a case stated.

20. On the main issue Mr. Gaffney relied upon the State (O’Rourke) -v- Kelly (1983) IR 58 as good authority for the proposition that a District Judge may be required by law to make a mandatory order. In that case the Supreme Court considered certain provisions of the Housing Act, 1966, dealing with the recovery of possession of local authority dwellings. Where there was no tenancy in such dwellings, the local authority could issue a demand for possession and then apply to the District Court for an Order directing the issue of a warrant empowering the Sheriff to put the local authority in possession of the dwelling. A mandatory obligation to issue the warrant was imposed on the District Judge once he was satisfied that certain formalities had been complied with and that a demand for possession had been duly made. That mandatory obligation was challenged in O’Rourke as being an invasion of the judicial domain because, it was said, it deprived the District Judge of any real discretion in the matter. The Supreme Court dismissed that objection and held that the impugned provisions of the Act of 1966 were constitutionally valid. In delivering the judgment of the Supreme Court in O’Rourke, the Chief Justice stated:-

21. The first point in defence argued by Mr. Gaffney can be quickly dealt with. I do not believe that the issue before the District Judge, in order to be a justiciable controversy, necessarily implies that the particular decision will be determinative of the entire matter. It is sufficient if it be a step in a process the end result of which may affect the legal rights of a citizen. One has only to note that in the State (C) -v- The Minister for Justice a statutory provision which permitted the adjournment of a preliminary investigation on the grounds that an accused person was of unsound mind was regarded as a “significant intrusion” upon the Courts discretion. The very statutes creating the case stated remedy themselves expressly recognise that the decision to refuse is reviewable by a higher Court.

22. Even decisions of tribunals which do not give rise directly to any legally enforceable rights or liabilities can, if one step in a process to that end, be subject to certiorari. As was stated by Diplock LJ. in R -v- Criminal Injuries Compensation Board, ex parte Lane (1967) 2 QB 864 at p.884:-

23. I accordingly reject this submission made by the Respondents.

24. Turning to the main issue, Article 34 (1) of the Constitution provides:-

25. There can be no doubt but that the proviso completely removes the discretion of the District Judge to decide whether or not to state a case. The resolution of the present issue therefore hinges on whether or not a statutory provision which mandates a District Judge to exercise his discretion in a particular way can ever be constitutional.

26. The Supreme Court in McEldowney distinguished that case from the State (O’Rourke) -v- Kelly , holding (at p.305) that O’Rourke’s case:-

27. The Court did not find in O’Rourke any question of a District Judge being compelled by the Act of 1966 to be satisfied that certain formalities were observed simply upon a statement on oath to that effect. Furthermore, the Act of 1966 did not provide any form of appeal to the District Court against an application to recover possession of the premises; the procedure provided for was a “safety device” to ensure that, before there was any recovery under the terms of the Act, the statutory formalities had been observed.

28. At p.304 Walshe J. stated:-

29. I think Mr. Hogan is correct in suggesting that the very element of “offensiveness” identified in McEldowney is present under the proviso contained in Section 4 of the 1857 Act, and that offensiveness is, in my view, only heightened by the fact that the power to make such a demand of a District Judge is confined to the DPP and is not available to the other party to the litigation.

30. It is not as though the striking down of the proviso would deprive the DPP of any remedy where a District Judge, wrongly in his view, refused to state a case when exercising his discretion. A District Judge must state a case unless, in the exercise of that discretion, he deems the application frivolous. It is hardly to be expected that applications brought under Section 2 (as amended and expanded) by or on behalf of the DPP will frequently stumble or fall on this particular ground.

31. Indeed, as pointed out by Mr. Hogan, the decision of Blayney J. in Sports Arena Limited -v- O’Reilly (1987) I.R. 185 makes it clear that where a District Judge refuses to hear a case before him on the grounds that he has no jurisdiction to hear it, he may not refuse to state a case on that issue. The High Court retains full discretion to determine whether or not it is proper to direct a District Judge to state a case.

32. In these circumstances, the discriminatory provision contained in the proviso in Section 4 is hard to justify. Other than the authority cited by Mr. Gaffney, no other reasons of policy or necessity have been advance on behalf of the Respondent to justify what can only be seen as a superfluous and discriminatory statutory provision.

33. In making the declaration sought, I also reject one further submission made by Mr. Gaffney: that the Applicant is disentitled to relief because of delay. True it is that the application was brought some two months after the time limit indicated in O. 84 R. 21 for the bringing of an application seeking prohibition. However, as Mr. Hogan points out, had the application been brought following the signing off of the case stated by the District Judge, the application would have been for certiorari, rather than prohibition, in which circumstances the application would certainly have been within the time provided. Furthermore, he submits, and I believe correctly, that there has been no question of any prejudice suffered by the Respondent.