Buckley v Hamill
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 19 July 2016 |
| Neutral Citation | [2016] IESC 42 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 264 of 2011],[Appeal No. 264/2011] |
| Date | 19 July 2016 |
[2016] IESC 42
THE SUPREME COURT
O'Malley J.
[Appeal No. 264/2011]
MacMenamin J.
Laffoy J.
O'Malley J.
AND
Committal warrants – Reissue of warrants – Road traffic offences – Appellant seeking orders of?certiorari?– Whether respondent properly reissued committal warrants
Facts: The first respondent, District Judge Hamill, reissued committal warrants, originally issued on foot of the failure of the appellant, Ms Buckley, to pay fines imposed in respect of a number of Road Traffic Act convictions. The orders reissuing the warrants were made on the 12th August, 2008, and the 28th September, 2009. It was intended by the officer responsible for them, to the knowledge of the appellant, that they would be executed in January 2010, a move that was forestalled by the application for leave to seek judicial review. The reliefs sought, primarily orders of?certiorari?in respect of the reissue of the warrants, were ultimately refused in the High Court. The appellant appealed to the Supreme Court against that High Court judgment. The primary argument made on behalf of the appellant was that there is no general discretion to postpone the execution of a warrant and no general power to renew; s. 33 of the Petty Sessions (Ireland) Act 1851 and O. 26 of the District Court Rules set out the only basis for renewal of a warrant – that the person cannot be found. The appellant submitted that the garda certificates furnished to the first respondent did not therefore comply with the statute or the Rules. The appellant relied in that regard upon the Supreme Court decision in?Brennan v Windle?[2003] 3 IR 494.
Held by O?Malley J that the key point in the instant case was whether the first respondent was entitled to renew the warrant where the only circumstance contemplated by s. 33 and the District Court Rules – that the person cannot be found – manifestly did not apply. O?Malley J noted that the certificates placed before the District Court on each occasion made it perfectly clear that the Garda? knew where the applicant was, and that she had not lodged an appeal and entered into a recognisance. O?Malley J noted that apart from a case where an appeal has been lodged there is no statutory discretion to postpone execution where the whereabouts of the person are known, at the request of that person or otherwise (save perhaps for a limited period in exceptional circumstances). O?Malley J held that it is, therefore, a prerequisite to the renewal of a warrant that it has not been executed because the person cannot be found; if the Court is not satisfied of that fact it should refuse to renew the warrants. O?Malley J held that since that criterion was manifestly not satisfied in this case, it followed that the renewals were invalid. In the circumstances, O?Malley J held that it was unnecessary to determine whether?O?Rourke v Judges of the District Court & Ors [2009] IEHC 309?and?Daly v Judge Coughlan?[2006] IEHC 126?are good authority for the proposition that a defendant should be put on notice of an application to renew; if the person cannot be found, that possibility should not arise.
O?Malley J held that she would therefore allow the appeal.
Appeal allowed.
This appeal primarily involves the question whether the respondent District Judge properly reissued certain ?stale? committal warrants, originally issued on foot of the failure of the appellant to pay fines imposed in respect of a number of Road Traffic Act convictions. The orders reissuing the warrants were made on the 12th August, 2008, and the 28th September, 2009. It was intended by the officer responsible for them, to the knowledge of the appellant, that they would be executed in January 2010, a move that was forestalled by the application for leave to seek judicial review. The reliefs sought, primarily orders of certiorari in respect of the reissue of the warrants, were ultimately refused in the High Court.
It should be noted that the events in question predate the coming into force in January of this year of the Fines (Payment and Recovery) Act 2014 and the associated regulations and District Court Rules. However, while the legislative provisions under consideration in this judgment are now to be read subject to that Act, they have not been repealed.
The case involves 12 warrants in total, all of which relate to minor road traffic matters. The total amount imposed by way of fines was ?4,600. In each case a period of imprisonment was ordered in default of payment. It is accepted that the appellant did not attend court and was not represented in respect of any of the charges.
The first set of warrants
The five charges underlying these five warrants were dealt with in the District Court on the 16th May, 2007. The appellant was convicted and fined in respect of each offence.
The fines were ordered to be paid within 28 days, with 28 days imprisonment in default of payment.
It is common case that the fines were not paid. The five warrants of execution, committing the appellant to prison in default, were issued by the District Court on the 19th October, 2007. Some ten months later, on the 12th August, 2008, they were reissued by the first named respondent for a further period of six months from that date.
These warrants were again re-issued by the first named respondent on the 28th September, 2009 – approximately thirteen months after the first renewal.
The second set of warrants
The second set of warrants concerns six offences which were dealt with in the District Court on the 7th August, 2007. Again, fines were imposed, with a period of 90 days to pay and five days imprisonment in default.
The six warrants of execution issued on the 10th January, 2008, two months after expiry of the time to pay. They were reissued by the respondent on the 12th August, 2008, some eight months after originally issued. They were again re-issued by him on the 28th September, 2009, some 13 months after the first renewal.
The final warrant
The last warrant relates to an offence committed on the 18th November, 2007. It was dealt with in the District Court on the 11th December, 2008. A fine of ?150 was imposed, to be paid within 30 days, with five days imprisonment in default. The fine was not paid within that time.
The warrant of execution issued on the 30th March, 2009, and was reissued by the respondent on the 28th September, 2009. In contrast to the manner in which the other warrants were dealt with, this renewal took place before the date upon which the warrant would have expired.
On the 3rd November, 2009, the appellant's solicitor sent a cheque for ?150 in respect of this warrant but it was returned by the garda dealing with the matter.
Until 1991 the time within which committal warrants for non-payment of penal sums in respect of criminal convictions had to be issued was prescribed by s.23 of the Petty Sessions (Ireland) Act, 1851. This provision required that such warrants be issued directly upon expiry of the time fixed for payment of the fine, or at the latest on the next court day after such expiry.
The Courts (No.2) Act 1991 is, in effect, a single-section Act. Section 1 provides in relevant part as follows:
1.?(1) Subject to subsection (2) of this section, in all cases of summary jurisdiction whenever an order has been made, upon the conviction of any person for an offence, for the payment of a penal sum or the performance of a condition and the penal sum has not been paid or the condition has not been performed, a warrant of committal to imprisonment for the non-payment of the penal sum or the non-performance of the condition may be issued by a justice of the District Court?
(a) not later than six months from the expiration of the time fixed by the said order for the payment of the penal sum or the performance of the condition where?
(i) the said order was made after the passing of this Act, ?
(b) (Omitted)
(2) This section shall apply notwithstanding either –
(a) the references in section 23 of the Petty Sessions (Ireland) Act, 1851, to the times for the issue of any warrant, or
(b) (Omitted).
Section 32 of the Petty Sessions (Ireland) Act, 1851 deals with certain aspects of the power to issue warrants to levy penal sums by way of distress and warrants to commit to gaol in default of payment. Section 33 continues as follows:
?Whenever the person to whom any warrant shall be so addressed, transmitted, or endorsed for execution shall be unable to find the person against whom such warrant shall have been issued, or his goods, as the case may be, or to discover where such person or his goods to be found, he shall return such warrant to the Justices by whom the same shall have been issued within such time as shall have been fixed by such warrant (or within a reasonable time where no time shall have been so fixed), and together with it a certificate of the reasons why the same shall not have been executed; and it shall be lawful for such Justice to examine such person on oath touching the non-execution of such warrant; and to re-issue the said warrant again, or to issue any other warrant for the same purpose from time to time as shall seem expedient.?
Both the Act of 1851 and O. 25 r. 9 of the version of the District Court Rules applicable in this case provide that if the person has lodged an appeal and has entered into a recognisance, a warrant of execution is not to be issued pending either the outcome of the appeal or a breach of the recognisance.
Order 26 r.11 deals with unexecuted warrants of this type. Mirroring the language of s. 33 of the Petty Sessions Act it...
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