Bennett v Minister for Justice and Equality

JurisdictionIreland
JudgeMr. Justice White
Judgment Date10 May 2017
Neutral Citation[2017] IEHC 277
Date10 May 2017
CourtHigh Court
Docket Number[2016 No. 405 J.R.] [2016 No. 607 J.R.]

[2017] IEHC 277

THE HIGH COURT

JUDICIAL REVIEW

White Michael J.

[2016 No. 405 J.R.]

[2016 No. 607 J.R.]

BETWEEN
STEPHEN BENNETT
FIRST APPLICANT
AND
MINISTER FOR JUSTICE AND EQUALITY
FIRST RESPONDENT
BETWEEN
FERDIA O'BRIEN
APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Crime & Sentencing – S. 9(2) of the Water Services Act – S. 45 (1) of the Water Services Act (No.2) 2013 – Jurisdiction of DPP to bring prosecution – S. 9(2) of the Criminal Justice (Administration) Act 1924

Facts: The applicants in two different sets of proceedings sought an order of prohibition to prevent prosecution by way of summons for alleged breaches of s. 12 of the Water Services Act 2007. The applicants stated that the Water Services Authority or the person authorised by the Minister had exclusive right to bring summary proceedings under the Act of 2007 as implied by the repeal of s. 9(2) of the 2007 Act by Water Services (No. 2) Act 2013. The applicants contended that the second respondent/Department of Public Prosecutions (DPP) had no authority to prosecute summary offences under the Act of 2007. The DPP submitted that it had statutory power to prosecute all the summary offences and there was no ouster of jurisdiction of the DPP.

Mr. Justice White refused to grant an order of prohibition to the applicants. The Court held that the words, 'may be brought,' as appearing under s. 9 (1) of the 2007 left no ambiguity in the section. The Court held that the interpretation of those words led to one conclusion that the Water Services Authority was not the only Authority that could initiate summary proceedings for breaches under the Act of 2007. The Court pointed out that under s. 9(2) of the Criminal Justice (Administration) Act 1924, the DPP was authorised to prosecute all the offences where the person authorized by law to prosecute did not initiate a prosecution. The Court held that it was crucial that independent statutory offices should have been vested with powers to conduct impartial prosecution in summary offences unless specifically excluded for safeguarding the administration of the rule of law.

JUDGMENT of Mr. Justice White delivered on the 10th of May, 2017
1

These are applications for prohibition to prevent, prosecutions by way of summons for alleged breaches of s. 12 of the Water Services Act 2007.

2

The First Applicants statement required to ground application for judicial review was filed on 10th June, 2016, with an affidavit verifying the grounds sworn by the First Applicant on 10th June, 2016. Leave was granted on 27th June, 2016. A notice of motion issued on 28th June, 2016, returnable for 10th July, 2016. A statement of opposition was filed and served on 7th October, 2016. An affidavit of Dara Byrne, Solicitor, in support of the statement of opposition was filed and served on 17th October, 2016.

3

The Second Applicant's statement required to ground an application for judicial review was filed on 25th July, 2016. An affidavit in support was filed by David Thompson, Solicitor, sworn on 25th July, 2016. Leave was granted on 25th July, 2016. A notice of motion issued on 26th September, 2016, returnable for 25th October, 2016. The Applicant swore an affidavit on 25th July, 2016, verifying the matter set out in the statement of grounds. The Respondent filed a statement of opposition on 2nd December, 2016, together with a verifying affidavit of Dara Byrne, Solicitor, filed on 5th December, 2016. The matters were at hearing on 1st and 2nd February 2017 and judgment was reserved.

4

There is one common ground between the two applications and a separate ground on the application of the Second Applicant The common ground is a challenge to the power of the DPP to prosecute offences contrary to the Water Services Act 2007.

5

Paragraph. 6 of the First Applicant's statement required to ground application for judicial review states:-

'The power given to the Minister under s. 9(2) to designate other persons as competent prosecutors of summary proceedings under the Act no longer exists since the repeal of s. 9(2) by s. 45(1) of the Water Services (No. 2) Act 2013. It is the submission of the Applicant that the only person entitled to prosecute summary proceedings under the Act is the Water Services Authority. The Respondent is the Director of Public Prosecutions and not a Water Services Authority. As such, it is the Applicant's submission that the prosecutions referred to herein are without a lawful basis and their continued prosecution should be prohibited. The legislation properly construed indicates that a Water Services Authority is the only party with competence to prosecute summary proceedings under the Act.' This ousts any residual power of the Respondent to prosecute summary offences under s. 9(2) of the Criminal Justice (Administration) Act 1924.

The statement of grounds of the Second Applicant submits that

'(i) The Respondent has no power to prosecute the Applicant for an offence of interference or obstruction contrary to s. 12 of the Water Services Act 2007 (as amended). The power to prosecute under the Water Services Act 2007 as it was enacted was set out at s. 9(1) and (2) of the Act.

"(1) 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.

(2) Notwithstanding subsection 1 the Minister may by regulations provide that summary proceedings for an offence specified in the Regulations may be brought by such a person (including the Minister) as is so specified."'

Section 9(2) of the Water Services Act 2007 was repealed by section 45(1) of the Water Services Act (No. 2) 2013.

(ii) 'Only the Water Services Authority is competent to prosecute the applicant. Section 9(1) Water Services Act 2007 (as amended). Expressio unius exclusio alterius. The Respondent's power to prosecute summary offences is statutory rather than constitutional in nature; section 9(2) of the Criminal Justice (Administration) Act 1924.

'Save where a criminal prosecution in a court of summary jurisdiction is prosecuted by a Minister, Department of State or person (official or unofficial) authorised in that behalf by the law for the time being in force, all prosecutions in any court of summary jurisdiction shall be prosecuted at the suit of the Attorney General of Saorstat Éireann.'

(iii) The repeal of s. 9(2) of the Water Services Act 2007, taken together with the Respondent's general statutory power to prosecute criminal offence summarily, elucidates that the Respondent does not have jurisdiction to prosecute the Applicant for an offence contrary to section 12(1)(a) of the Water Services Act 2007 (as amended) in District Court case No. 2016/36184.'

6

The Second Applicant in the separate ground on his application for judicial review has argued,

'(i) the Applicant is charged with an offence of obstructing 'the exercise of a prescribed person of the powers vested in him by virtue of the Water Services Act 2007 contrary to s. 12(1)(a) of the Water Services Act 2007 and s. 8(4) of the Water Services Act 2007'. The said charge is invalid because it does not disclose an offence known to law...........

(viii) as there is no prescribed person or powers vested in such person known to law for the purpose of the 2007 Act, the prosecution of the Applicant on the charges in District Court case No. 2016/ 36184 by the Respondent would be a breach of the Applicant's constitutional right to be tried on a criminal charge in due course of law as the offence for which he is charged is invalid because it does not disclose an offence known to law........

3.(iii) 'It appears that persons may be authorised in writing by the Minister to carry out certain functions under the relevant legislation without such authorisation being promulgated as law in the form of a statutory instrument or regulation and there appears to be no obligation under the relevant criminal legislation to inform the accused that a particular person has been prescribed and/or authorised to carry out certain functions and that obstruction or interference or a continuation of same would amount to a criminal offence with penal sanctions. Having regard to the above circumstances, the said criminal provisions are unconstitutional on the grounds that they are vague and uncertain and on the grounds that it is not possible for a person to known in advance that particular conduct amounts to a criminal offence.'

7

The First Applicant is charged before the District Court on five separate summonses for offences contrary to s. 12 of the Water Services Act 2007.

8

The Second Applicant is charged before Tallaght District Court by summons for one offence where it is alleged he obstructed the exercise of a prescribed person of the powers vested in him by virtue of the Water Services Act 2007, contrary to s. 12(1)(a) of the Water Services Act 2007.

Submissions by the Parties
Jurisdiction of the DPP to bring Prosecution
9

The relevant section of the Water Services Act 2007, as originally enacted is Section 9 which states:-

'(1) 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).

(2) 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.'

10

Section 9(2) was subsequently deleted by the provisions of the Water...

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1 cases
  • Bennett v DPP
    • Ireland
    • Court of Appeal (Ireland)
    • 9 July 2018
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