Aaron Judge v Judge Scally and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 04 November 2005
• Neutral Citation: [2005] IEHC 366
• Date: 04 November 2005
• Court: High Court
• Docket Number: [2004 No. 146 JR]

[2005] IEHC 366

THE HIGH COURT

[No. 146 J.R./2004]

JUDGE v DISTRICT JUDGE SCALLY & ORS

JUDICIAL REVIEW

BETWEEN

AARON JUDGE

APPLICANT

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

RESPONDENTS

DCR O.17 r1ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S3

DCR O.23 r3

ROAD TRAFFIC ACT 1961 S49(8)

DCR O.16 r5

DCR O.16 r1

DCR O.16 r2

DCR O.15 r10

PETTY SESSIONS (IRL) ACT 1851 S11

DUNPHY v CROWLEY UNREP SUPREME 17.2.1997 1997/3/901

DCR SCHED B FORM 15.3

PETTY SESSIONS (IRL) ACT 1851 S41

O'FLAHERTY, STATE v O'FLOINN 1954 IR 295

PETTY SESSIONS (IRL) ACT 1851 S4

DUBLIN POLICE DISTRICT ACT 1808

DUBLIN POLICE DISTRICT ACT 1824

DUBLIN POLICE DISTRICT ACT 1836

CONSTABULARY IRELAND DUBLIN POLICE DISTRICT ACT 1837

DUBLIN POLICE DISTRICT ACT 1837-8

DUBLIN POLICE DISTRICT ACT 1839

DUBLIN POLICE DISTRICT ACT 1840D

UBLIN POLICE ACT 1842 S49

DUBLIN POLICE ACT 1842 S51DUBLIN POLICE ACT 1842 S79

COURTS OF JUSTICE ACT 1924 S78

PERFORMANCE OF THE DUTIES OF JUSTICES OF THE PEACE OUT OF QUARTER SESSIONS IN IRELAND WITH RESPECT TO SUMMARY CONVICTIONS & ORDERS ACT 1849 S23

SUMMARY JURISDICTION (IRL) ACT 1851

SUMMARY JURISDICTION (IRL) ACT 1862

INTERPRETATION ACT 1889 S2(9)

INTERPRETATION ACT 1937

O'CONNOR IRISH JUSTICE OF THE PEACE 2ED 133

O'BRIEN v BRABNER 1885 49 JUSTICE OF THE PEACE 227

SANDS CRIMINAL PRACTICE PROCEDURE & EVIDENCE IN EIRE 1939 31

WALSH CRIMINAL PROCEDURE 2002 212

CONSTITUTION ART 40.4.1

CONSTITUTION ART 38

PETTY SESSIONS (IRL) ACT 1851 S11(2)

COURTS OF JUSTICE ACT 1924 S91

CRIMINAL JUSTICE ADMINISTRATION ACT 1914 S27

AG v HEALY 1927 IR 460

AG v BRUEN 1935 IR 617

WELCH v BOWMAKER (IRL) LTD 1980 IR 251

HOLLOWAY v BELENOS PUBLICATIONS LTD 1988 IR 494 1987 ILRM 790

HUTCH v GOV OF WHEATFIELD PRISON UNREP SUPREME 17.11.1992 1992/11/3737

NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY & HEALTH v FINGAL CO COUNCIL 1997 2 IR 547 1997 1 ILRM 128

GREAT SOUTHERN & WESTERN RAILWAY CO v LEYDEN 1907 2 IR 160

CLARKE v MEMBER IN CHARGE OF TERENURE GARDA STATION 2001 4 IR 171 2002 2 ILRM 11

CRIMINAL LAW

warrant

Arrest - Sworn information - District Court - Road traffic offences - Offences not of "very serious nature" - Distinction between cases heard in Petty Sessions districts of Ireland and those heard in police district of Dublin Metropolis - Discretion of District Judge - Whether District Judge acted within jurisdiction - Issuing of warrant instead of summons - Good grounds - Whether warrant should be issued when summons equally effectual in securing appearance of accused person - Whether warrant lawful - O'Brien v Brabner (1885) 49 JP 227 applied - Dublin Police Act 1842 (5 & 6 Vict, c 24), ss 49 and 51 - Petty Sessions (Ireland) Act 1851 (14 & 15 Vict, c 93), ss 11 and 41 - District Court Rules 1997 (SI 93/1997), O 16 - Certiorai granted

1 JUDGMENT of Mr. Justice Herbert delivered the 4th day of November, 2005

2 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.

3 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.

4 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.

5 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"

6 District Court Area of Dublin Metropolitan District

7 Warrant Pulse HD 12805

8 District No.

9 Prosecutor Garda Diana Campbell

10 Accused Aaron Judge

11 The Information then continues as follows:-

"THE INFORMATION of Garda Diana Campbell of Harcourt Terrace, who says on oath;

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."

12 Section 49(8) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994, (as amended), provides that:-

"A member of the Garda Síochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section."

13 By Order 16 rule 5 of the District Court Rules, 1997, it is provided that:-

"Where at common law or under any statute there is power to arrest a person without a warrant, a warrant for his or her arrest may be issued in accordance with the provisions of rule 1 of this Order."

14 It is provided by Order 16 rule 1 that a complaint should be made to a Judge and should be made by information on oath and in writing. Rule 2 of Order 16 goes on to provide that having received such complaint, the Judge may issue a warrant if the offence is stated to have been committed or if such person resides within the Judge's district. It was accepted on behalf of the Applicant and the Respondents that Order 15 rule 10 and Order 16 of the Rules of the District Court 1997, derive their authority from and, the source of the powers of the first named Respondent are ultimately to be found in Section 11 of the Petty Sessions (Ireland) Act, 1851, 14 and 15 Victoria, Chapter 93. The decision of the Supreme Court in the case of Dunphy v. His Honour Judge Timothy Crowley and The Director of Public Prosecutions, (unreported û 17/ 2/1997) was cited as authority for this proposition.

15 Section XI of the Act of 1851 provides as follows:-

"XI The Manner in which Persons against whom any such Informations or Complaints as aforesaid shall have been received by any Justice shall be made to appear to answer to the same shall be subject to the following Provisions:"

16 1. In all Cases of Indictable Crimes and Offences (where an Information that any Person has committed the same shall have been taken in Writing and on Oath) the Justice shall issue a Warrant (Bb.) to arrest and bring such Person before him, or some other Justice of the same County, to answer to the Complaint made in the Information (and which Warrant may be issued or executed on a Sunday as well as on any other Day); or if he shall think that the Ends or Justice would be thereby sufficiently answered, it shall be lawful for him, instead of issuing such Warrant, to issue a Summons in the first instance to such Person, requiring him to appear and answer to the said Complaint; but nothing herein contained shall prevent any Justice from issuing a Warrant for the Arrest of such Person at any Time before or after the Time mentioned in such Summons for his Appearance; and whenever such Person shall afterwards appear or be brought before any such Justice he shall proceed according to the Provisions...