Costello v DPP

JurisdictionIreland
JudgeR. Mackey and P. Moran,Mr. Justice Lynch
Judgment Date03 December 1985
Neutral Citation1983 WJSC-HC 2210,1985 WJSC-HC 1882
CourtHigh Court
Docket NumberNo. 4226P/1980
Date03 December 1985
COSTELLO v. D.P.P. & ATTORNEY GENERAL

BETWEEN:

DONALD PATRICK COSTELLO
Plaintiff

and

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE ATTORNEYGENERAL
Defendants

1983 WJSC-HC 2210

No. 4226P/1980

THE HIGH COURT

Subject Headings:

CONSTITUTION: statute

CRIMINAL LAW: return for trial

1

JUDGMENT of Gannon, J.,delivered the 11th February 1983

2

The relief claimed in these proceedings commenced by the issue of a Plenary Summons is a declaration that section 62 of the Courts of Justice Act 1936is inconsistent with the Constitution and that the provisions of section 3 of the Prosecution of Offences Act 1974, which transferred to the Director of Public Prosecutions the function and powers of the Attorney General under section 62 of the 1936 Act, are repugnant to the Constitution. Consequential restraining orders are alsoclaimed.

3

A statement of claim was delivered setting out the facts showing entitlement as alleged to the relief claimed. These admitted factsare set out as follows:-

4

2 "1. The plaintiff resides at 47 Abbotstown Avenue, Finglas in the City of Dublin.

5

2. On or about the 23rd day of March 1978 the plaintiff was arrested by a member of the Garda Siochana pursuant to section 30 of the Offences Against the State Act 1939 in respect of certain alleged offences set out in the first schedule hereto.

6

3. Subsequent to the said arrest on the said 23rd day of March 1978 the plaintiff was remanded in custody to Mountjoy Prison to appear at District Court No. 2, Morgan Place, Dublin on the 26th day of March1978.

7

4. Pursuant to the remand referred to in paragraph 3 hereof the plaintiff did appear on the said 26th day of March 1978 and subsequently on a number of occasions pursuant to further remands until finally on the 26th day of January 1979 when the appropriate procedure pursuant to sections 5, 6 and 7 of the Criminal Procedure Act 1967having been observed, the learned District Justice O'Sullivan, in exercise of the powers conferred on him pursuant to section 8(5) of the said Act ordered the plaintiff to be discharged as to the said"offences hereinbefore referred to.

8

5. Despite the said discharge by the said District Justice and in purported pursuance of the powers alleged to be conferred upon him by section 62 of the Courts of Justice Act 1936the first-named defendant the Director of Public Prosecutions caused to be served upon the plaintiff a document in the terms set out in the second schedule hereto. The charges set out in the said document are identical with those offences examined by the learned District Justice O'Sullivan and from which the plaintiff was discharged by him.

9

6. The second-named defendant is sued by virtue of order 60 of the Rules of the Superior Courts."

10

The charges set out in the schedules are two charges alleging that the plaintiff had committed two acts of robbery on the 21st December 1977 and on the 21st March 1978. Sub-section (1) of section 62 of the Courts of Justice Act 1936as amended by the Criminal Procedure Act of 1967reads as follows:-

11

2 "62-(1) Where a person is brought before a justice of the District Court charged with an indictable crime, and"such charge either cannot lawfully be or is not disposed of summarily by such justice, and such justice refuses to send such person forward for trial on such charge, then and in every such case it shall be lawful for the Attorney General to direct that such person be sent forward for trial to a specified Court to which such justice could lawfully have so sent such person."

12

Sub-section (2) of section 62 is as follows:-

"(2) Whenever the Attorney General gives a direction under this section that a person be sent forward for trial to any particular Court on any particular charge, the Attorney General shall cause such direction to be communicated to the district court clerk for the district court area in which such person was brought before the District Court on such charge, and thereupon such direction shall have the same operation and effect in all respects as an order of a justice of the District Court sending such person forward for trial to such Court on such charge would have had, and all persons concerned shall actaccordingly."

13

Subsections (3) and (4) of section 62 set out consequential procedural steps which read as follows:-

14

2 "(3) When a direction by the Attorney General under this section has been communicated to the district court clerk in pursuance of the next proceeding sub-section of this section, such district court clerk shall cause to be served on the person to whose trial such direction relates notice in writing stating that the Attorney General has directed under this section that such person shall be sent forward for trial to a particular Court (which shall be specified in such notice) on a particular charge (which shall be similarly specified) and that such person is required to attend before the said Court at a specified time and place and there to stand his trial on the saidcharge.

15

(4) If a person on whom a notice has been served under the next proceeding sub-section of this section fails to attend before the Court at the time and place specified in such notice, it shall be lawful for such Court on proof of the service of such notice on such person not less than seven"clear days before the date on which he is thereby required to attend before the said Court and of the service on such person of copies of the relevant depositions and particulars of all additional evidence intended to be adduced by the prosecution on the trial of such person, to issued a bench warrant for the arrest of such person and the bringing of such person before the said Court in custody."

16

In addition to the definitions in section 1 of the Prosecution of Offences Act 1974 the following provisions of that Act were also referred to on the hearing namely:-

17

2 "2-(1) There is hereby established the office of Director of Public Prosecutions and the holder of the office shall be known as the Director of Public Prosecutions and is referred to subsequently in this Act as the Director.

18

(2) The Director shall be appointed by the Government.

19

(3) (a) A person shall not be appointed to be the Director unless at the date of his appointment he is a practising barrister or a practising solicitor and has"practised as a barrister or a solicitor for at least tenyears.

20

3 (b) For the purposes of this sub-section service for any period in a position in the civil service for appointment to which practice as a barrister or a solicitor was a necessary qualification shall be deemed to be practice as a barrister or a solicitor as the case may be, for that period and a person, while holding such a position, shall be deemed to be a practising barrister or a practising solicitor as the case maybe.

21

(4) The Director shall be a civil servant in the civil service of the State.

22

(5) The Director shall be independent in the performance of hisfunctions.

23

2 3-(1) Subject to the provisions of this Act, the Director shall perform all the functions capable of being performed in relation to criminal matters and in relation to election petitions and referendum petitions by the"Attorney General immediately before the commencement of this section and references to the Attorney General in any statute or statutory instrument in force immediately before such commencement shall be construed accordingly.

24

(2) The functions capable of being performed by the Attorney General immediately before the commencement of this section in or in relation to any criminal matters, or to election petitions or referendum petitions, to which the Attorney General is a party and which have not then been concluded shall, upon such commencement, be performed by the Director and references to the Attorney General in those proceedings shall be construed as references to the Director and any act or thing done or step taken by or on behalf of the Attorney General in or in relation to those proceedings shall be deemed to have been done or taken by or on behalf of the Director."

25

In the State (Shanahan) .v. The Attorney General 1964 I.R. 239the question of whether or not section 62 of the Courts of Justice Act 1936 is inconsistent with the Constitution was considered by the Supreme Court whose judgment thereon ruled that it is not.

26

In justification of this instant claim notwithstanding that decision it is submitted on behalf of the plaintiff that the Supreme Court then left open the question of whether or not the function vested in the Attorney General by section 62 was of such judicial nature that it could be exercised consistently with the Constitution only by the Courts. It was further submitted that since the decision of the Supreme Court in that case the subsequent enactments of the Criminal Procedure Act 1967 and the Prosecution of Offences Act 1974 created significant changes of pre-trial procedures which make necessary a further consideration of the constitutionality of section 62 as affected by the Prosecution of Offences Act 1974.

27

The contentions in support of the claim as made by Mr. Mackey and Miss Moran may be summarised shortly as follows: the investigation of charges against an accused person, to whom the presumption of innocence extends until conviction, is a judicial process within thecompetence, under the Constitution, only of the Courts established by the Constitution and in accordance with principles of justice. The process of bringing an accused person before the Courts on a charge triable by jury is vested by the Constitution in the Attorney General who is a person designated in the Constitution to be independent of the Executive. The procedure for initiating a trial by jury of a person accused of a criminal offence has always been of a nature which afforded the accused person an opportunity of knowing the nature of the charge and of the intended evidence in support...

To continue reading

Request your trial
12 cases
  • O'C v Judges of the Dublin Metropolitan District
    • Ireland
    • Supreme Court
    • 1 Enero 1994
    ......v. Judges of Dublin Metropolitan District| Citations: CRIMINAL PROCEDURE ACT 1967 COSTELLO V AG 1984 ILRM 413 C, STATE V MIN FOR JUSTICE 1967 IR 106 . 1 Ex-tempore judgment of Finlay C.J.delivered the 11th day of November, 1992. . . 2This is an appeal brought by the Applicant against the refusal of his application for an Order of Prohibition ......
  • O'Connell v DPP
    • Ireland
    • High Court
    • 30 Julio 1993
    ...... OF PUBLIC PROSECUTIONS AND THE HONOURABLE MR.JUSTICE FRANCIS SPAIN, PRESIDENT OF THE CIRCUIT COURT RESPONDENTS Citations: MISUSE OF DRUGS REGS 1979 SI 32/1979 REG 4(1)(c) CRIMINAL PROCEDURE ACT 1967 S18 CRIMINAL PROCEDURE ACT 1967 CONSTITUTION ART 38 COSTELLO V AG 1984 IR 441 CUSTOMS CONSOLIDATION ACT 1876 S186 MISUSE OF DRUGS ACT 1984 S7(1)(a)(ii) WILLIAMS V DPP 1991 3 AER 651 COURTS OF JUSTICE ACT 1936 S62 C, STATE V MIN FOR JUSTICE 1967 IR 106 O'SHEA V DPP 1988 IR 655 CUSTOMS ACT 1956 S2 DCR r88(2) MISUSE OF ......
  • Kelly v Anderson
    • Ireland
    • Supreme Court
    • 30 Enero 2004
    ...... LAW (JURISDICTION) ACT 1976 S10 CRIMINAL LAW (JURISDICTION) ACT 1976 S10(1) CRIMINAL PROCEDURE ACT 1967 S6 CRIMINAL PROCEDURE ACT 1967 S7 CRIMINAL PROCEDURE ACT 1967 S8 CRIMINAL PROCEDURE ACT 1967 S8(5) O'CONNELL V DPP 1994 3 IR 554 COSTELLO V DPP 1984 IR 436 COURTS OF JUSTICE ACT 1936 S62 MISUSE OF DRUGS REGS 1979 SI 32/1979 MISUSE OF DRUGS REGS 1988 SI 328/1988 CRIMINAL PROCEDURE ACT 1967 S18 CRIMINAL PROCEDURE ACT 1967 S8(2) Synopsis: JUDICIAL REVIEW Criminal law ......
  • O'Connell v DPP
    • Ireland
    • Supreme Court
    • 24 Marzo 1994
    ......White's objections that he had no jurisdiction to do this, decided against this course and discharged the applicant on both of these charges. . . 13 Keane J. held that the case was indistinguishable from Costello v. Attorney General 1984 I.R. p. 346 and on that ground held that it was ultra vires the Director of Public Prosecutions to introduce the two additional counts in the indictment. He held that the introduction of the two counts rendered nugatory the decision of the district judge. . . 14 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT