Conroy v Attorney General and Another

• Jurisdiction: Ireland
• Judgment Date: 11 December 1965
• Date: 11 December 1965
• Court: Supreme Court

Conroy v. Attorney General and Another.

PATRICK CONROY

Plaintiff

and

THE ATTORNEY GENERAL and MICHAEL J. KEAVENEY

Defendants.

Supreme Court.

Constitution of Ireland - Criminal law - Road traffic - Charge of driving a motor vehicle while under the influence of drink - Whether a minor offence - Constitution of Ireland, 1937, Art. 30 - Road Traffic Act, 1961 (No. 24 of 1961),s. 49, sub-s. 1.

The provisions of s. 49 of the Road Traffic Act, 1961, which purport to enable a person, charged under the section with driving a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle, to be tried in a Court of summary jurisdiction and to provide that such person may be tried and sentenced to imprisonment and/or fined, and declared by order of such Court to be disqualified from holding a driving licence, without a jury, are not repugnant to the Constitution of Ireland.

So held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery, Kingsmill Moore, Haugh and Walsh JJ.).

Plenary Summons.

Patrick Conroy, the plaintiff, was charged in the District Court, Dublin Metropolitan District, with an offence "for that he did between 8 p.m. and 9 p.m. on the 19th May, 1964, at Ranelagh, a public place . . . drive a mechanically propelled vehicle, to wit, motor car KYI—359, while under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle, contrary to s. 49 of the Road Traffic Act, 1961." The charge was laid against the plaintiff by the second-named defendant, a member of the Garda Síochána, and particulars of the charge were entered on charge sheet, no. 129 of 1964, Donnybrook Garda Station. The charge came on for hearing on the 20th May, 1964, when the hearing was adjourned to the 8th June, 1964, and on the latter date the hearing was adjourned to the 29th June, 1964, the plaintiff being remanded on bail. On the 23rd June, 1964, the plaintiff commenced proceedings in the High Court in which he claimed 1, a declaration that the provisions of the Road Traffic Act, 1961, which enable a person charged under s. 49 of that Act to be tried by a Court of summary jurisdiction are repugnant to the provisions of the Constitution, and 2, an injunction to restrain the second-named defendant from proceeding in a summary way against him for such an offence. On the 29th June, 1964, the hearing of the charge in the District Court was adjourned to the 8th October, 1964. Prior to that date the District Justice had refused an application for an adjournment of the charge until the proceedings in the High Court had been determined and informed the parties that he would proceed with the summary hearing on the 8th October, 1964. The plaintiff then applied for a conditional order of prohibition against the District Justice to prevent him from hearing the charge pending the determination of the constitutional issue in the High Court. Cause against making this conditional order absolute was shown and the hearing of the application to make it absolute was adjourned pending the decision of the Court in these proceedings.

From the above judgment the defendants appealed to the Supreme Court (3), on the grounds that the High Court Judge misdirected himself in law in finding (a) that s. 49 of the Act of 1961 contravened the provisions of the Constitution; (b) that the offence created by the said section was not a minor offence as provided for in Art. 38 of the Constitution of Ireland, 1937; (c) that the provision for disqualification was a punishment; (d) that the punishments provided by the Act for contravention of the section are such as to render the offence more than a minor offence.

Cur. adv. vult.

Kenny J.:—

Sect. 49, sub-s. 1, of the Road Traffic Act, 1961, provides that a person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle. Sub-sect. 2 provides that a person who contravenes sub-s. 1 is guilty of an offence and is liable on summary conviction to imprisonment for any term not exceeding six months or, at the discretion of the Court, to a fine not exceeding £100 or to both such imprisonment and such fine. There is also, in the section, a provision that sub-s. 1 of s. 1 of the Probation of Offenders Act, 1907, is not to apply to such an offence. Sect. 26 of the Act provides that where a person is convicted of an offence specified in the Second Schedule to the Act (and this Schedule includes an offence under s. 49), the Court shall make an order declaring him to be disqualified for holding a driving licence, and sub-s. 2 provides that such a disqualification disqualifies the convicted person for holding any driving licence whatsoever during a specified period. Sub-sect. 3 provides that the period of disqualification shall be not less than one year in the case of a first offence, and not less than three years in the case of a second or any subsequent offence when the accused is convicted of an offence under s. 49 or an offence under s. 53 when the offence against s. 53 causes death or serious bodily harm to another person. Sect. 53 makes it an offence to drive a vehicle in a public place at a speed or in a manner which, having regard to all the circumstances of the case, is dangerous to the public. There is thus no limitation on the length of time for which a disqualification order may be made by a Court when a person is convicted of an offence against s. 49 or against s. 53 when the dangerous driving caused death or serious bodily harm to another person. I propose to refer to the offence created by s. 49 as "a s. 49 offence" throughout this judgment.

On the 20th May, 1964, the plaintiff was charged in the District Court in Dublin with a s. 49 offence. The prosecutors in the complaint were the People at the suit of the Attorney General (the first-named defendant) and the second-named defendant who was a member of the Garda Síochána. The hearing of this charge was adjourned to the 8th day of June and, on that day, it was again adjourned to the 29th June. On the 23rd June, 1964, the plaintiff began this action in the High Court in which he claimed a declaration that the provisions of the Road Traffic Act, 1961, which enable a person charged under s. 49 to be tried by a Court of summary jurisdiction are repugnant to the Constitution and an injunction to restrain the second-named defendant from proceeding in a summary way against the plaintiff for such an offence. On the 29th June, 1964, the hearing of the charge in the District Court was adjourned to the 8th October: before that day the District Justice refused an application for an adjournment of the charge until this action had been determined and informed the parties that he would proceed with a summary hearing of the charge on the 8th October. The plaintiff then applied for a conditional order of prohibition against the District Justice to prevent him hearing the charge. I was taking the Common Law list on the day when the application for this order was made and said to counsel that I thought that an injunction to restrain the District Justice from hearing the charge pending the determination of this action seemed to me to be the appropriate remedy but Mr. Conolly persuaded me that a conditional order of prohibition was the correct procedure. Cause against making this conditional order absolute was shown and the hearing of the application to make it absolute has been adjourned until this case has been decided. I am still of opinion that an injunction to restrain the District Justice from hearing the charge against the plaintiff until this action had been determined would have been the appropriate remedy: it is impossible to decide the matter in prohibition proceedings without deciding the constitutional issue which is the issue involved in the High Court action. Sect. 27, sub-s. 5, of the Judicature (Ireland) Act, 1877, abolished the power of the Court of Chancery to grant injunctions to restrain parties from proceeding with actions in other divisions of the High Court but did not affect the jurisdiction of the High Court to grant injunctions to restrain proceedings in inferior Courts. When a defendant is charged with an offence under a section of any Act of the British Parliament or of the Oireachtas and when he begins proceedings in the High Court to have it declared that the section is unconstitutional, a conviction in the District Court under such a section could produce an injustice if the section were subsequently held to be unconstitutional. In such circumstances, all considerations of convenience and the proper administration of justice seem to me to require that the proceedings in the District Court should be restrained until the action in the High Court has been determined.

The plaintiff's case is that a s. 49 offence is not a minor offence and that it cannot be tried by a District Justice but must be tried by a judge sitting with a jury. As the plaintiff relies on Article 38 of the Constitution, it is necessary to set out the relevant parts of that Article. It reads:—

"Trial of Offences.

Article 38.

1. No person shall be tried on any criminal charge save in due course of law.

2. Minor offences may be tried by courts of summary jurisdiction.

3. 1 Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order."

"4. 1 Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law...