Cumann Lúthchleas Gael Teo.v Windle

• Jurisdiction: Ireland
• Judge: O'Hanlon J.,
• Judgment Date: 01 January 1994
• Neutral Citation: 1992 WJSC-HC 1596
• Docket Number: No. 10/1991
• Court: High Court
• Date: 01 January 1994

( H.C., S.C.)

Cumann Lúthchleas Gael Teoranta

and

Windle

- Private prosecution - Common informer - Whether body corporate entitled to private prosecution without express statutory authorisation - Nature of right to bring private prosecution or act as common informer - Statute - Offence of contravening ministerial regulations on fire safety - Public stadium - Large crowd - District Court empowered to try indictable offences summarily in certain circumstances - Whether District Court erred in exercise of discretion by not trying offence summarily - Whether words of statute too inexact for purpose of creating indictable offence - Fire Safety in Places of Assembly (Ease of Escape) Regulations, 1985 (S.I. No. 249), art. 4 - Fire Services Act, 1981 (No. 30), ss. 4, 5, 6, 9, 18, 37.

Section 4 of the Fire Services Act, 1981, provides that any person who contravenes any requirement of Part III of that Act or of any regulation under that Act or of any notice to which that Act applies, "shall be guilty of an offence". Section 18 of the Act of 1981, which is contained in Part III thereof, applies to premises or any part thereof' which are used for inter alia "purposes of entertainment, recreation or instruction or for the purpose of any club, society or association" or for "any purpose involving access to the premises by members of the public, whether on payment or otherwise". Section 18, sub-s. 2 imposes a duty on every person having control of such premises "to ensure as far as is reasonably practicable the safety of persons on the premises in the event of an outbreak of fire". Section 37 of the Act of 1981, contained in Part IV thereof, empowers the Minister for the Environment "to make regulations providing for the precautions to be taken in premises to which section 18 applies for the protection of persons and property against risk by fire". Article 4 of the Fire Safety in Places of Assembly (Ease of Escape) Regulations, 1985, made pursuant to s. 37 of the Act of 1981, provides as follows:- "Every person having control over a place of assembly shall take the following precautions, that is to say, he shall ensure that while the place is in actual use as a place of assembly (1) subject to paragraph 2 all escape routes are kept unobstructed and immediately available for use, and (2) doors, gates and other like barriers across escape routes are not secured in such a manner that they cannot be easily and immediately opened by persons in the place of assembly." By virtue of art. 3 of the Regulations of 1985, "place of assembly" includes a stadium. Section 5 of the Act of 1981 provides inter alia:- "(1) A person guilty of an offence under this Act (other than an offence to which subsection (2) applies) shall be liable on summary conviction to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding six months, or to both the fine and the imprisonment. (2) A person guilty of an offence by reason of a contravention of section 18 (2), 20 or 37 shall be liable on conviction on indictment to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding two years or to both the fine and the imprisonment". By virtue of s. 5, sub-s. 3 of the Act of 1981, "a justice of the District Court shall have jurisdiction to try summarily an offence to which subsection (2) relates" if he is "of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily", the Director of Public Prosecutions consents and the defendant, on being informed of his right to be tried by a jury does not object. A person convicted under s. 5, sub-s. 3 is liable to the same punishment as a person convicted under s. 5, sub-section 1. Section 6 of the Act of 1981 provides that "summary proceedings for an offence to which section 5 (1) applies may be brought and prosecuted by the fire authority for the functional area in which the offence is alleged to have been committed or by any other person." By virtue of s. 9 of the Act of 1981, the notice party was the fire authority for the functional area in which a stadium in the control of the applicant was situate. By virtue of s. 11 of the Interpretation Act, 1937, the word "person" imports a body corporate and an incorporated body of persons as well as an individual, unless the contrary intention appears. A prosecution was brought against the applicant by the notice party, as complainant. The summons alleged that the applicant, "being the person having control over the said premises at Croke Park, being a stadium and place of assembly", failed to ensure "(i) that all escape routes were kept unobstructed and immediately available for use, and (ii) that all doors and gates were kept secured in such a manner that they could easily and immediately be opened by persons in the said place of assembly." The matters complained of were said to be in breach of "art. 4 of the Regulations of 1985, and 'contrary to sections 4 and 5' of the Act of 1981." When the summons came before the respondent for hearing, it was alleged by the notice party that the offences had occurred on the day of the All-Ireland hurling final, when there was a large crowd in the stadium, and that the hindrance to escape from the stadium had been significant. The respondent ordered that the applicant be sent forward for trial in the Circuit Court on the first charge only. The applicant sought to have that order quashed by the High Court. The applicant contended that the offence in respect of which it had been sent forward for trial was not an indictable offence, and in particular, that the provisions of s. 5, sub-s. 2 referring to "an offence by reason of a contravention … of section 37" were too inexact a description of a breach of regulations made pursuant to s. 37 to render the offence of being in contravention of those regulations an indictable offence. It was further contended that the notice party had no power to bring proceedings in respect of an indictable offence. The notice party contended that the proceedings had been initiated pursuant to the power conferred on it by section 6. The applicant also argued that the respondent had erred in concluding that the alleged offence was not a minor offence fit to be tried summarily, pursuant to s. 5, sub-section 3. Held by O'Hanlon J., in refusing the application, 1, that although s. 37 of the Act of 1981 did not create any offence, the reference in s. 5, sub-s. 2 (which set out the offences which could be tried on indictment) to a contravention of section 37 must be regarded as meaning a contravention of regulations made pursuant to section 37; accordingly such a contravention amounted to an offence which could be tried on indictment where the conditions set out in s. 5, sub-s. 3 of the Act of 1981 were satisfied. 2. That the notice party, a municipal corporation, must be regarded as having initiated the prosecution as a private prosecutor. 3. That the notice party, being a private prosecutor, was obliged to yield its position as dominus litis in the prosecution to the Director of Public Prosecutions, subsequent to the making of the order returning the applicant for trial. The State (Ennis) v. FarrellIR [1966] I.R. 107 followed. 4. That the respondent, in deciding whether to decline jurisdiction to try the offence, was entitled to have regard to the nature of the allegations made against the applicant and the nature of the evidence proposed to be adduced against him. On appeal by the applicant it was Held by the Supreme Court (Finlay C.J., O'Flaherty, Egan, Blayney and Denham JJ.) in allowing the applicant's appeal and quashing the order of the respondent, 1, that the offence of contravening ministerial regulations was created by s. 4 of the Act of 1981, and that s. 5, sub-s. 2 involved only a description of an offence created by another section. 2. That the High Court had been correct in its conclusion that, having regard to the provisions of s. 5, sub-s. 2 of the Act of 1981, the alleged offence in respect of which the applicant had been sent forward for trial was an indictable offence, triable and punishable pursuant to s. 5, sub-section 2. 3. That a decision of a District Court Judge in the exercise of his discretion under s. 5, sub-s. 3, which could be reached either on the facts as proved or as alleged, could not be interfered with unless it was established that the decision had been irrational or unsupported by the evidence. 4. That since it had been alleged that the offence had taken place at a time when there were a large number of people in the stadium and that the hindrance to their escape had been significant, there were no grounds for interfering with the respondent's exercise of his discretion under s....