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 >> D.P.P. (People) v. Hickey [2007] IEHC 379 (5 October 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H379.html Cite as: [2008] 2 IR 31, [2007] IEHC 379 |
||
[New search] [Printable RTF version] [Help]
Neutral Citation No: [2007] IEHC 379
[2007 No. 315 SS]
BETWEEN
PLAINTIFF
DEFENDANT
EX TEMPORE JUDGMENT OF MR JUSTICE MCCARTHY delivered on the 5th day of October 2007
In this case this Court has been consulted in this case stated by Judge Patrick Brady, a judge of the District Court assigned to Balbriggan District Court, pursuant to Section 52(1) of the Court (Supplemental Provisions) Act, 1961 on a point of law for its opinion. I do not propose to read out the entirety of the case stated, and I propose to seek to summarise the material before me. In particular, I will refer, however, explicitly to the findings of fact which the learned District Court judge made.
I think it is fair to summarise the facts in the following way. An application was made to what is acknowledged to be the appropriate District Court clerk in respect of the District Court area in question for the issue of a summons charging an offence of common assault being an indictable offence, and accordingly being an offence to which the provisions requiring a complaint within a period of six months did not apply.
In terms of the application for a summons which was made, it was stated that the applicant was one Garda Coyne. She was not, in fact, at the time of the application, a garda at all. She had retired from An Garda Síochána. However, the summons ultimately issued described the Director of Public Prosecutions as the prosecutor, and the application itself, obviously, therefore, resulted in the issue of a summons on the footing that it must have been made on behalf of the Director of Public Prosecutions. It must follow that that was the conclusion which the District Court clerk, or the District Court clerk's office, reached.
Reference has been made to the issue of a summons by computer, but, of course, by definition, a computer will issue only what is entered into it, and it must follow that the entry was an entry for the printing, so to speak, of a document which was ultimately to become a summons in the appropriate form for summonses. So, whatever the state of play was, whatever the reasons for it, the District Court clerk plainly concluded that the appropriate form of summons was one which named the Director of Public Prosecutions as prosecutor.
The question which arises in this case is whether or not the District Court clerk could lawfully issue a summons in those circumstances. It does not actually hinge on the form of the summons itself, but rather the exercise of the administrative procedure which was contemplated originally by the Courts (No. 3) Act, 1986 and now the Civil Liability and Courts Act 2004, whereby Section 49 effectively substitutes a new provision in largely similar terms for Section 1 of the 1986 Act.
Section 49 of the 2004 Act provides that proceedings in the District Court, and I attenuate the provisions slightly, may, "as a matter of administrative procedure", be commenced by a document known as an application for a summons for the prosecutor by the appropriate clerk. So one has to ask: What happened in this case? What happened in this case is that proceedings were issued to the prosecutor, who is described as the Director of Public Prosecutions. In addition, of course, the former, or old procedure remains in being and it is sometimes utilised, which is the procedure for a complaint made as the judge shall think fit, whether on oath or not, pursuant to the Petty Sessions (Ireland) Act, 1851 Adaption Order 1938.
That, of course, is not something with which we are concerned here, but Mr McDonagh has made the point, which I think is a fair point, that it must be considered that, since the parties who may utilise the administrative procedure contemplated in the 1986 and 2004 Acts must be gardaí or other persons authorised to prosecute, or must be made on behalf of such persons, it is only persons whose official status, as it were, might be assumed to confer upon them a sense of responsibility and not to make vexatious complaints, in contradistinction, perhaps, from a layperson who would be a common informer pursuant to the 2004 Act. That, I think, pertains merely to the possible legislative origin, or one of the legislative origins of the provision.
But, in any event, this administrative procedure is in the form of an application made to the appropriate office, that is to say the District Court clerk assigned to the relevant district, by or on behalf of the Attorney General, the Director of Public Prosecutions, a member of the Garda Síochána, or any person authorised by or under an enactment to bring and prosecute proceedings for the offence concerned.
Obviously, I am not in the position of the original fact-finding tribunal, and I am bound by the facts as found by the learned district judge and as set out in the case stated, but I may draw inferences from primary facts which are found by the District Court judge, and in this particular instance, by perusal of the documents and having regard to those findings of fact, it seems clear that the garda in question, or the retired garda in question applied on behalf of the Director of Public Prosecutions, for the issue of the summons, and the Director was a person entitled to avail of, by his servant or agent, that procedure.
Of course, it would not be appropriate for me to proceed on the basis that that is the case, and it is the case as a fact that the application was made on behalf of the Director, no one seems to dispute it is the case as a fact, unless the learned district judge had found facts which allowed me to draw that conclusion. Having regard to the findings of fact, with special reference to the contents of paragraphs 18 and 19, (which deal with the fact that a summons was prepared in draft form, or an application for a summons was prepared in draft form by one member of An Garda Síochána and furnished to the former member), apparently for the purpose of actually proffering the application itself, but it is plain from paragraph 19 of the case stated that the Director of Public Prosecutions had directed a prosecution and that this was a direction which was furnished to Sergeant Kelly.
As we know, there is authority for the proposition, an unambiguous decision which is the decision of Kelly v District Judge Hamill and the DPP, that it is not necessary for the Director to give his directions to any named or individual person, but that it is merely sufficient if he gives it to a person who will cause the application to be made, if the person making the application on behalf of the Director has authority in that regard from him, and as his agent.
It seems to me that a person who is not, say, a member of An Garda Síochána would be entitled to act as agent for the Director. It is only if a person is applying in his or her own right as one of the class of persons named in the relevant subsection that a difficulty might arise, if that person was outside the class as a matter of fact. That means, of course, that, if the Director had not been the applicant acting by his agent, the position would in truth be that a member of An Garda Síochána, in exercise of that person's freestanding capacity to apply, would be able to do so. But, of course, that would not be available to Ms Coyne, in which event there would have been what I might term a defective application.
This is an administrative procedure, and its purpose, having regard to its legislative purpose or origin as referred to above is to remove the necessity, because of the nature of the persons authorised to apply, for the sieving of complaints giving rise to the commencement of proceedings. But if it is an administrative procedure, and there is no exercise of discretion by the District Court clerk other than the limited need to decide whether or not the applicant is either acting on behalf of or is a person authorised to make an application, the Court is entitled to take the view that when, ultimately, as a fact, the summons is issued describing the Director of Public Prosecutions as prosecutor, naming the relevant person who happened to be a former garda as the applicant on behalf of the Director of Public Prosecutions, nobody could be in any doubt as to the fact that the prosecutor was at all times the applicant.
In relation to the fact that at one stage I enquired as to whether or not the summons, or a draft summons might be furnished with the application, Mr McDonagh very helpfully pointed out to me in fact that that was not the case in recent years, I think he said perhaps for as much as 20 years, and that summonses are retained in draft form on computers. But, as I said earlier, I do not think it matters that that is the manner in which things proceed once the District Court clerk takes the view that a proper person has applied, or the servant or agent of a proper person has applied, or, to put the matter another way, that a proper person has applied by his or her servants or agents, and if that is the fact, then, in my view, that is the end of the matter.
Mr McDermott has also brought to my attention the point that administrative officers are presumed to act in accordance with their duty, and in the light of the fact that the summons is in the form which I have described, I think it is to be presumed, evidence to the contrary not existing, that the District Court clerk performed his duty in accordance with law and issued a summons only on the application of a person acting on behalf of the Director, because it would not have been lawful for him to utilise the administrative procedure which was contemplated, or is contemplated, by the Act in the case of a former garda.
There are a few other points which I think are relevant in the case. The issue of appearing under protest, or the curative effect of appearing, has been canvassed. I do not think that's relevant in this case at all. What we are considering here is the validity of the jurisdiction, or the fact of the jurisdiction of the District Court. I do not accept that one can confer jurisdiction on a Court by acquiescence or by consent when it has no jurisdiction. Certainly the position on indictment is that one can raise a challenge to the jurisdiction at any time, even on appeal, if one were to contend that the conviction was a nullity due to want of jurisdiction.
So there is no question here of anything done, or omitted to be done, on behalf of the accused, giving rise to something in the nature of a cure for any supposed defect. I commented upon this concept of appearing under protest during the hearing. I think that that's a concept about which there has to be grave doubt. If a Court has not got jurisdiction, it does not matter how many times one appears, and if a Court has no jurisdiction, that remains the end of it. An appearance under protest is itself, as it were, somewhat irrational because, if the purpose of the summons is to procure someone's attendance before the Court and they actually attend, absent want of jurisdiction, the fact of their presence will be enough. There may be cases, of course, where there is an abuse of process, extreme cases of that kind, but that is not this case, and they will be very rare indeed.
In relation to the issue raised in the District Court and which was to a degree canvassed in this Court about the question of delegation, I do not think that question of delegation is relevant in this case. I think the authority for that is undoubtedly Mr Justice McCrachie's decision to which I have referred. But as a matter of principle, in any event, absent statutory provisions which require to be approached otherwise, there is no doubt in my mind but that the Director is able to notify any given person who he regards as responsible to make the application, insofar as that might have been done.
Reference has been made to a number of other decisions, and, for the sake of completeness, I think that it is appropriate that I refer to them. Reference is made to DPP v McQuaid. That was a decision of Murphy J. in the High Court and was relied upon to some considerable extent by Mr McDonagh, and he drew my attention to particular portions of the judgment. At page 9 of the unreported judgment, which was a judgment of 26th October 1984, Murphy J. says, by reference to the facts of that particular case:
"It seems to me that the defect of which the respondent complains relates to the substantive condition precedent to the issue of the summons: namely, that it should have been received and processed by a person who had the appropriate authority to issue a summons in respect of the complaint, and that the failure to fulfil this condition is not merely a want of form or lack of procedural correctness in the summons but a defect going to the root of the matter."
What one has to remember about that case is that the summons application was made to someone who was not a District Court clerk in the relevant district. It might as well have been made to the man in the street. And, of course, then, a complaint was not made in time. The complaint, to put the matter shortly, was not a valid complaint and it gave rise to a legitimate basis for a defence of those proceedings.
I will not further quote from that decision, but I will refer to what Mr McDonagh builds upon it. He says that the application was undoubtedly received and processed by a person who had the appropriate authority to issue a summons in respect of the allegation, but it had not been received and processed lawfully, in the sense that the person making it was not authorised to make it, and the clerk, therefore, had no power to issue it. I have to say I do not accept their proposition for the reasons which I have outlined.
Reference has been made to Payne v Brophy [2006] 1 IR 560, a decision of Clarke J. Again, in that instance, it was sought to challenge the validity of the summons. Again, issues arose as to appearances under protest, but Clarke J., at page 566, stated in the context of that particular case, there were grave defects in that summons. It was unsigned, for example. Clarke J., in any event, commented as follows:
"It is, therefore, clear that a fundamental distinction needs to be made between :-
1. defects which go to the jurisdiction of the Court and
2. defects which are purely procedural in nature."
If there was a defect, the only defect was the erroneous reference to the occupation of the person described as the applicant, and that hardly amounts to a defect in procedure.
But even if I am wrong, let us say I am wrong in the view I have taken, and let us suppose that one is confined to the face of the document, and in particular the District Court clerk was confined to the face of the document, it remains lawful to issue a summons on behalf of the Director of Public Prosecutions where an administrative procedure is invoked. What I do say, in any event, is the District Court clerk, in my view, once, as it were, he appreciates the true state of affairs, and he did in this case, by reference to the document on its face and issues a summons, then there is no basis for objection in law to it.
I do not have to go into the issue of whether or not there are legal consequences if the procedure was initiated in an irregular fashion, and in particular whether or not any such defect was capable of being cured or ignored on the basis of what Mr McDermott says, that there were no adverse consequences. In fact there are always, per se, adverse consequences if persons are not dealt with in accordance with law, and everybody has a freestanding and absolute right to be dealt with in accordance with law, and there is no such thing as a technical point, and in an entirely neutral sense I use the term "exploitation" when I say everybody is entitled to insist on being dealt with in accordance with law, even if or perhaps, an uninformed person, that constitutes an exploitation of a so-called technicality. But in this instance I am satisfied that this accused person was dealt with in accordance with law, in that the error, and it was an error, in the document which was furnished or proffered as the application might have given rise to a misconception, but it does not appear to have arisen in this case.
So I will answer the questions posed by the learned District Court judge in the following manner. At paragraph 1, I will say that the construction and proper application of the procedures contained in Section 49(3) of the Civil Liability and Courts Act 2004, which amends Section 1 of the Courts (No. 3) Act 1986 to the application for the summons herein, is that a party may apply for the issue of a summons by using the procedure contemplated by an Act if that party falls into one of the categories contemplated by Section 49(3) of those statutes, and in particular if such person is either the Attorney General, the Director of Public Prosecutions, a member of An Garda Síochána, or any other person authorised by or under any enactment to bring and prosecute proceedings, and, of course, that includes by or on behalf of the Attorney General or the Director of Public Prosecutions, or, in this case, on behalf of the Director.
The maxim delegatus non potest delegari has no relevance to these proceedings, having regard to the authority to which I have referred. In answer to the question, I will simply say it has no relevance to the proceedings. I will say, thirdly, that the summons was validly applied for in the circumstances of this case; I do not need to answer the last question, having answered the earlier three questions as aforesaid. It will appear, in any event, from my judgment, which the parties may or may not see fit to furnish to the District Court judge, what my thinking was in relation to paragraph 4.
Approved: McCarthy J.
