Bennett v DPP

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 09 July 2018
• Neutral Citation: [2018] IECA 237
• Date: 09 July 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 237 [2017 347]

[2018] IECA 237

THE COURT OF APPEAL

Birmingham P.

Birmingham P.

Edwards J.

Hedigan J.

Neutral Citation Number: [2018] IECA 237

[2017 347]

BETWEEN

STEPHEN BENNETT

APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Summary proceedings – Statutory interpretation – Water services – Appellant seeking to challenge the decision and power of the respondent to prosecute him summarily for breaches of s. 12 of the Water Services Act 2007 – Whether the Act suggests that the prosecutor will either be a water service authority or a person designated under s. 9(2)

Facts: The appellant, Mr Bennett, appealed to the Court of Appeal from a decision of the High Court of 20th May 2017 rejecting a challenge by the appellant to the decision and power of the respondent, the Director of Public Prosecutions, to prosecute him summarily for breaches of s. 12 of the Water Services Act 2007, the section that makes it an offence to obstruct a water services authority when exercising its statutory powers. The appellant contended that the plain and ordinary meaning of the Act was that the Oireachtas was stipulating that summary proceedings could be brought by water services authorities and also, prior to repeal of s. 9(2), by individuals specified by the Minister. The appellant argued that if, contrary to his submission, the view is taken that the section does not, by its plain and ordinary language, support the interpretation contended for, then the same result would be achieved by a holistic interpretation.

Held by the Court that the Director of Public Prosecutions was entitled to commence summary proceedings.

The Court held that it would dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 9th day of July 2018 by Birmingham P.

1 This is an appeal from a decision of the High Court (White J.) of 20th May 2017 rejecting a challenge by the appellant to the decision and power of the Director of Public Prosecutions to prosecute him summarily for breaches of s. 12 of the Water Services Act 2007. This section that makes it an offence to obstruct a water services authority when exercising its statutory powers. It is agreed that the case raises a net point of statutory interpretation. The point arises in these circumstances.

2 Section 9(1) of the Water Services Act 2007 provides as follows:

‘Summary proceedings for an offence under this Act may be brought by a water services authority (whether or not the offence is committed in its functional area).’

The appellant submits that this is a case where the well-known Latin legal maxim expressio unius exclusio alterius – to express one thing is to exclude another – applies. The appellant suggests that the force of that argument emerges with particular clarity if regard is had to the provisions of s. 9(2) of the Act as originally enacted, though now subsequently repealed. This section had provided:

‘Notwithstanding subsection (1), the Minister may, by regulations, provide that summary proceedings for an offence specified in the regulations may be brought by such person (including the Minister) as is so specified.’

Section 9(2) was deleted by s. 45(1) of the Water Services (No 2.) Act 2013.

3 The appellant contends that the plain and ordinary meaning of the Act was that the Oireachtas was stipulating that summary proceedings could be brought by water services authorities and also, prior to repeal of s. 9(2), by individuals specified by the Minister. The appellant argues that if, contrary to his submission, the view is taken that the section does not, by its plain and ordinary language, support the interpretation contended for, then the same result would be achieved by a holistic interpretation. Attention is drawn to s. 11 which provides as follows:

‘(1) Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under this Act, it shall, on the application of the water services authority which brought the prosecution, or person specified under regulations made under section 9(2) as the case may be (made before the time of such imposition, affirmation or variation), provide by order for the payment of the amount of the fine to the water services authority or other person.

(2) Payment to be paid under subsection (1) may be enforced by the water services authority or person specified under regulations made under section 9(2) as if it were due on foot of a decree or order made by the court in civil proceedings.’

The appellant submits that the language of the section clearly suggests that the prosecutor will either be a water service authority or a person designated under s. 9(2) of the Act. The appellant...