Dillane v Attorney General and Ireland

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 31 July 1980
• Neutral Citation: 1980 WJSC-SC 2233
• Court: Supreme Court
• Date: 31 July 1980

DILLANE v. IRELAND

DILLANE

v.

IRELAND AND THE ATTORNEY GENERAL

1980 WJSC-SC 2233

O'Higgins C.J.

Henchy J.

Griffin J.

Kenny J.

Parke J.

No. 1962P/1977

No 211/1978

THE SUPREME COUHT

1 Judgment of Henchy J. delivered the 31st July 1980

2 The plaintiff seeks to have part of Rule 67 of the District Court Rules, 1948, declared unconstitutional and therefore void. The basis of his claim is that while Rule 67 gives a general power to a District Justice to award costs and witnesses" expenses against any party to the proceedings, when he makes an order in a case of summary jurisdiction (as defined by the Rules), the Rule denies him power to make such an award against (a) the Attorney General, or (b) a member of the Garda Siochana acting in discharge of his duties as a police officer, or (c) in the case of revenue or customs proceedings. In this case it is the words I have italicised that have come under attack on constitutional grounds.

3 The origin of the plaintiff's complaint lies in the fact that when he was prosecuted in the District Court for certain road traffic offences, the prosecuting Garda was allowed by the District Justice to withdraw the summonses, but without an award of costs in favour of the plaintiff. The District Justice said that were it not for the exemption given to the Garda by Rule 67 he would have given costs against him. The basis of the present proceedings is the plaintiff's contention that such immunity from costs granted by Rule 67 is not constitutionally permissible. It is said that it violates Art. 40 of the Constitution in two respects.

4 First, it is contended that the immunity given by the Rule to a Garda contravenes the requirement in Art. 40 s. 1, that all citizens shall, as human persons, be held equal before the law. That section, however, goes on to qualify that statement by providing that it is not to be taken to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

5 Treating Rule 67 as part of the enactments of the State, I consider its discrimination in favour of a member of the Garda Siochana to be justifiable under this constitutional provision, on the ground of social function. This case arises in the context of the prosecution in the District Court by a Garda, in his own name, of the plaintiff for summary offences. The prosecutor in such a case must be either the Director of Public Prosecutions (on whom the functions of the Attorney General in criminal matters have devolved pursuant to s. 3 of the Prosecution of Offences Act, 1974) or a common informer. It has been held by this Court in The People v. Roddy1977 I.R. 177 that a Garda has a general authority to bring all such prosecutions in the name of the Director of Prosecutions. But if, as in this case, he brings them in his own name, he does so as a member of the public, i.e. as a common informer: see Wedick v. Osmond & Son1935 1 I.R. 820; The State (Cronin v.Circuit Court Judge of the Western Circuit1937 I.R. 34; The People v. Roddy1977 I.R. 177.

6 The effect of the Rule, therefore, in its application to a case such as this, is that the District Justice may grant costs or witnesses" expenses to an accused if the person who prosecuted him is not a member of the Garda Siochana, but that he is debarred from making such an award if the prosecutor is a Garda acting in discharge of his duties as a police officer. It is the latter...