Brigina Joyce, (a minor suing by her mother and next friend Bridgid Joyce) v District Judge Ann Watkin and DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Clarke
• Judgment Date: 08 November 2005
• Neutral Citation: [2005] IEHC 461
• Court: High Court
• Docket Number: [2005 Nos. 341 & 342 JR]
• Date: 08 November 2005

[2005] IEHC 461

THE HIGH COURT

[No. 340 JR/2005]

[No. 341 JR/2005]

JOYCE (A MINOR) v DISTRICT COURT JUDGE WATKIN & DPP & CLINTON v DISTRICT COURT JUDGE BRADY & DPP

BETWEEN

BRIGINA JOYCE (A MINOR) AT THE SUIT OF HER MOTHER AND NEXT FRIEND BRIDGID JOYCE

APPLICANT

-and-

DISTRICT JUDGE ANN WATKIN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

AND

STEPHEN CLINTON

APPLICANT

-and-

DISTRICT JUDGE PATRICK BRADY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CRIMINAL PROCEDURE ACT 1967 S24(2)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S4

BARRY v FITZPATRICK & HOGAN & DPP 1996 1 ILRM 512

R v BIRMINGHAM CHILDREN'S COURT 1988 1 WLR 337

R v BROMLEY MAGISTRATES' COURT, EX-PARTE SMITH & ANOTHER 1995 1 WLR 944

R (SACUPIMA & ORS) v NEWHAM LONDON BOROUGH COUNCIL 2001 1 WLR 653

SOUTHERN PACIFIC TERMINAL COMPANY v INTERSTATE COMMERCE COMMISSION 1911 219 US 498

ROE v WADE 1973 140 US 113

CRIMINAL LAW: remand order

Remand on bail - Power of District Court to remand accused on bail - Statutory requirement that both prosecutor and accused should consent before accused can be remanded for period longer than eight days - Criminal Procedure Act 1967 (No 12), s 24 - Certiorari refused

JUDICIAL REVIEW: certiorari

Discretionary nature of remedy - Refusal of remedy where force of order which applicant seeks to have quashed is spent - Discretion where real risk of repetition of wrong order - Costs where no order granted - Certiorari refused

1 Mr Justice Clarkedelivered on the 8th day of November, 2005

2 The applicants seek relief in respect of separate but similar orders made by the two respondent District judges on, respectively, the 1 ^st and 4 ^th April, 2005.

3 In both cases the orders concerned purported to remand the respective applicants on continuing bail in relation to certain District Court proceedings, for a period of two weeks, in circumstances where there was no consent to the proposed order. There is no dispute as to the underlying legal position in relation to those orders. Section 24 (2) of the Criminal Procedure Act, 1967, as amended by section 4 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, states as follows: "Where the court remands a person on bail it may remand him for a longer period than eight days if he and the prosecutor consent." Leave to proceed by way of judicial review was granted by MacMenamin J. on the 4 ^th April, 2005. It is clear, therefore, that the application for leave was moved within the impugned remand period of two weeks and on the first occasion when such leave could have been sought in the ordinary way in the Monday list.

4 It has been conceded by the first-named respondent that the orders made by the respondents District judges on, respectively, the 1 ^st April 2005 and the 4 ^th April, 2005, were made in excess of jurisdiction. In Barry v. Fitzpatrick and others [1996] 1 ILRM 512 the applicant therein instituted judicial review proceedings which sought orders of certiorari quashing the remand orders of a number of District judges, on the grounds that there was no jurisdiction to remand the applicant concerned on bail for a period exceeding eight days in circumstances where he did not consent to being so remanded. The Supreme Court took the view, by a majority of 2:1, that orders of certiorari did not lie, notwithstanding the fact that the orders concerned had been make in excess of jurisdiction. I am, of course, bound by that decision. The issue in this case therefore concerns the exercise of the court's discretion in circumstances where the Supreme Court has already laid down the parameters within which such discretion should be exercised. While it is, therefore, a discretionary matter, that discretion needs to be exercised in a consistent manner and in accordance with established principles.

5 Therefore, unless there is good reason for departing from the manner in which the Supreme Court indicated that discretion should be exercised in cases like this, as identified in Barry, the discretion should be exercised in the same way in this case. In...