Clarke v Hogan

JurisdictionIreland
JudgeMr. Justice Barron
Judgment Date02 May 1995
Neutral Citation1995 WJSC-HC 1935
CourtHigh Court
Docket Number[1994 No. 110 J.R.],1994/110 J.R.
Date02 May 1995

1995 WJSC-HC 1935

THE HIGH COURT

1994/110 J.R.
CLARKE v. DISTRICT JUDGE HOGAN
DAVID CLARKE
APPLICANT

AND

DISTRICT JUDGE DESMOND HOGAN
RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY

Citations:

BOYLAN, R V LONDONDERRY JUSTICES 1912 2 IR 374

MULHOLLAND, R V MONAGHAN JUSTICES 1914 2 IR 156

SHELDON V BROOMFIELD JUSTICES 1964 2 QB 573

TANNER, EX PARTE JUDGMENTS OF THE SUPERIOR COURTS IN IRELAND 190, 364

CRIMINAL JUSTICE ADMINISTRATION ACT 1914 S43(13)

Synopsis:

CONSTITUTION

Personal rights

Fair procedures - Order - Witness - Peace - Keep - Witness bound to keep the peace without opportunity to make submissions - Spent order quashed - (1994/110 JR - Barron J. - 2/5/95) [1995] 1 I.R. 310

|Clarke v. Hogan|

CONSTITUTION

Personal rights

Liberty - Order - Validity - Witness - Peace - Keep - Procedures - Fairness - Witness bound to keep the peace without opportunity to make submissions - Spent order quashed - (1994/110 JR - Barron J. - 2/5/95) - [1995] 1 I.R. 310

|Clarke v. Hogan|

CRIMINAL LAW

Jurisdiction

Inherence - Witness - Peace - Keep - Procedures - Fairness - Witness bound to keep the peace without opportunity to make submissions - Spent order quashed - (1994/110 JR - Barron J. - 2/5/95) - [1995] 1 I.R. 310

|Clarke v. Hogan|

DISTRICT COURT

Order

Validity - Witness - Peace - Keep - Procedure - Fairness - Summary trial of defendant for assault - Defendant and witness bound over to keep the peace - Witness without opportunity to make submissions - Spent order set aside - Whether order bad on its face - Criminal Justice Administration Act, 1914, s. 43 - Constitution of Ireland, 1937, Article 40 - (1994/110 JR - Barron J. - 2/5/95) - [1995] 1 I.R. 310

|Clarke v. Hogan|

ORDER

Validity

Witness - Peace - Keep - Procedures - Fairness - Witness bound to keep the peace without opportunity to make submissions - Spent order quashed - (1994/110 JR - Barron J. - 2/5/95) [1995] 1 I.R. 310

|Clarke v. Hogan|

1

Judgment of the Honourable Mr. Justice Barron delivered on the 2nd day of May 1995

2

These proceedings arise out of a prosecution heard in the Bray District Court on 29th September, 1993. One Phyllis Curley was charged with common assault against one Carmel Flood. Having heard the evidence the Respondent bound the Defendant to the peace and also made similar orders in relation to four witnesses of whom the Applicant was one.

3

Before binding over the witnesses the Respondent gave no indication that he intended such a course nor did he give such persons any opportunity to address the court in relation to such an order.

4

The Applicant now seeks an Order of Certiorari to quash the order so far as it affects him. The court has had the benefit of written submissions. The Applicant submitted that the order was bad on its face since it did not show jurisdiction, and, that since the Applicant had not been warned that the order might be made or given an opportunity to contest it, there had been a failure on the part of the Respondent to observe the principles of natural justice.

5

Relief was opposed essentially upon the ground that the jurisdiction is preventative and that, although it may be regarded as punishment, the law has never so regarded it.

6

The Applicant accepted the validity of the jurisdiction but sought to impugn the manner of its exercise in the particular case.

7

In reliance upon his first submission Counsel for the Applicant referred to R (Boylan) v. Londonderry Justices 1912 2 I.R. 374. In that case it was held that the order requiring the prosecutor to find sureties to keep the peace was bad on its face since it did not set out the grounds upon which jurisdiction was being exercised. Palles C.B. said at page 379:-

"Every order of a Justice must not only be one within his jurisdiction, but must show on its face the facts which brought the matter within the jurisdiction."

8

That was an unusual case since the court held that the only jurisdiction of the Justices in the particular case was to bind over and that accordingly it was necessary for them to set out the facts upon which they were relying in exercise of that jurisdiction.

9

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2 cases
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    ...FOODS LTD & MALLON v EAGLE STAR INSURANCE CO (IRL) LTD 1995 1 IR 526 1995 2 ILRM 474 1995/16/4172 CLARKE v DISTRICT JUDGE HOGAN & DPP 1995 1 IR 310 1995/6/1935 PHILPOTT, STATE v REGISTRAR OF TITLES 1986 ILRM 499 1985/9/2684 GARVEY v IRELAND & ORS 1981 IR 75 1979 113 ILTR 61 HOGAN & WHYTE ......
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