Director of Public Prosecutions v Seán Douglas

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 16 July 2015
• Neutral Citation: [2015] IEHC 461
• Court: High Court
• Docket Number: [2014 No. 938 SS],[2014 No 938 S.S.]
• Date: 16 July 2015

[2015] IEHC 461

THE HIGH COURT

Baker J.

[2014 No 938 S.S.]

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

SEÁN DOUGLAS

RESPONDENT

Crime & Sentencing – Practice & Procedures – S. 34 of the Courts (Supplemental Provisions) Act, 1961 – S. 4(5) of the Criminal Justice (Forensic Evidence) Act 1990 – S. 91 of the Courts of Justice Act 1924 – Jurisdiction of District Court to award costs in absence of expressed provision in statute

Facts: Following the order of the District Court for preserving the buccal swab of the respondent for three years who had been released from custody without charge, the respondent made an application for award of costs and now the opinion of the Court had been sought by the District Court on two questions of law: whether the District Court had jurisdiction to award costs in the application under s. 4 (5) of the Criminal Justice (Forensic Evidence) Act 1990 against the Director of Public Prosecutions and what were the criteria for dealing with an application for costs under the said Act of 1990.

Ms. Justice Baker held that the District Court did not have the jurisdiction to award costs in the application under s. 4 (5) of the Criminal Justice (Forensic Evidence) Act 1990. The Court observed that the power to vest the jurisdiction to award the costs had been granted by the Rules Committee of the District Court by virtue of s. 91 of the Court of Justice Act 1924. The Court opined that by placing an application under s. 4 (5) of the said Act of 1990 within the category titled 'criminal proceedings' under Part II of the Rules, and limiting the jurisdiction of the District Court to award costs in civil proceedings only, the Rules Committee had withdrawn a distinction purposely for grant of costs. The Courts held that such distinction ipso facto precluded the jurisdiction of the District Court to award costs in criminal proceedings.

JUDGMENT of Ms. Justice Baker delivered on the 16th day of July, 2015

1 This is a case stated by Judge Patricia McNamara, a judge of the District Court, wherein she asks the opinion of the High Court on two questions of law as follows:-

1) In an application under s. 4(5) of the Criminal Justice (Forensic Evidence) Act 1990 (as amended) do I have jurisdiction to award costs against the DPP?

2) What are the criteria that should be applied in considering an application for costs in an application under s. 4(5) of the Criminal Justice (Forensic Evidence) Act 1990 (as amended)?

Facts

2 On 13th November, 2012 Seán Douglas, the respondent, was arrested on suspicion of murder, and detained under s. 50 of the Criminal Justice Act 2007. During his detention, and following an authorisation by a Superintendent a buccal swab was taken from him under s. 2 of the Criminal Justice (Forensic Evidence) Act 1990 (as amended) (the 'Act of 1990'). The applicant was released from custody without charge, and has not since been charged with any relevant offence.

3 The legislation provides that if an accused is not prosecuted for an arrestable offence within twelve months of the sample being taken the sample must be destroyed, unless the court orders its retention for a further period of three years under s. 4(5) of the Act of 1990. Certain exceptions to the twelve month period are identified in s. 4(2), which are not relevant to this application.

4 The application for the retention of a sample is made under s. 4(5) which I quote in full:-

'If a court is satisfied, on an application being made to it by or on behalf of the Director of Public Prosecutions or the person from whom the sample was taken, that there is good reason why records and samples to which this section applied should not be destroyed under this section, it may make an order authorising the retention of such records and samples for such purpose or period as it may direct.'

5 Application was made by the DPP on the 7th November, 2012 to the District Judge under s. 4(5) of the Act of 1990 for an order that the sample taken from the respondent be retained for a period of three years. The DPP and the respondent were represented in each case by a solicitor, and evidence adduced by the DPP was cross examined by the solicitor for the respondent. Following this, submissions were made by both sides and Judge McNamara granted the application for retention of the sample for a period of a further three years. After the order was made the solicitor for the respondent made an application for costs, and it was in the context of that application that the District Judge stated this case to me, both with regards to her jurisdiction to award costs and the factors, if any, which ought to influence the exercise of that discretion, if such exists.

Source of the jurisdiction

6 It is accepted by counsel for both parties that on the authority of the divisional High Court in Attorney General v Crawford [1940] I.R. 335, as the District Court is a creature of statute, it cannot have any inherent jurisdiction to award costs:-

'It is well established that there is no inherent power or jurisdiction to grant costs and that costs can only be granted under the provisions of some statute or rules...'

7 The Act of 1990 does not expressly exclude the jurisdiction to award costs, and I now turn to consider whether the power to award costs is contained within any other statutory provision.

8 The question in this case stated is a net one: whether in the absence of express salutatory authority in the statutory context in which substantive proceedings are heard, the District Court may make a costs order, or whether the jurisdiction is found in the Courts Acts and the Rules of the District Court made under the authority of those Acts.

The authorities

9 Counsel fairly pointed me to the fact that three recent judgments of the High Court, each on a consultative case stated, have already considered the question of the power of the District Court to award costs, and that some difference in approach is apparent from these judgments.

10 The first in time is the judgment of Hedigan J. in Southern Hotel Sligo Ltd. v. Iarnród Éireann [2007] 3 I.R. 792. The question raised related to the power of the district court to award costs in proceedings under s. 108 of the Environmental Protection Agency Act 1992. Hedigan J. held that no jurisdiction lay, and looked in particular to, what he described as, the 'very nature of the section 108 procedure as a "public watchdog" charter', and noted that the section did not provide for an order for costs, either in favour or against a claimant taking a 'public watchdog' role. As he said:-

'This is because, absent provision for a costs order, the watchdog will not be frightened to bark by the prospect of a large order for costs against him in the event of an unsuccessful application.... It seems to me that the intention of the legislature was to create such a watchdog procedure and making no provision for costs either for or against any party is an essential part of that procedure.'

11 Hedigan J. confined his discussion and analysis to s. 108 and his focus was the policy of the legislation gleaned from the fact that the legislation contained the ' clear intention of the legislature in excluding costs from a s. 108 procedure', for policy reasons, because the proceedings were ' in the nature of a public law complaint.'

12 He found no jurisdictional basis in O. 51 r. 1 to award costs, because he considered that the District Court Rules cannot ' create a power to award costs where there is no jurisdictional basis to do so.'

13 Counsel for the respondent points me to the fact that Hedigan J. in making this general statement did not avert to the express power vested in the Rules Committee by s. 34 of the Courts (Supplemental Provisions) Act 1961 to make provision for costs. He argues that the decision of Hedigan J. is to be confined to the unique type of application before him described by him as ' watchdog' proceedings, and that the decision ought not to guide my judgment in what is a wholly different class of application.

14 O'Malley J. in HSE v. OA, [2013] IEHC 172, the second of the three recent authorities, also observed the absence of reference to the Courts Acts in the judgment of Hedigan J. and I now turn to consider her judgment.

15 O'Malley J. was determining a consultative case stated from the District Court which had heard an application for an emergency care order under the Child Care Act 1991, and part of her judgment concerned the power of the District Court to award costs to a respondent in proceedings of that nature. There was no relevant provision under the Child Care Act 1991 that conferred express provision on the District Judge to award costs to a respondent to care proceedings, albeit certain other parts of the Act did confer a power to award costs either to a guardian ad litem, or solicitor who was appointed to represent a child. O'Malley J. held in favour of the respondent, the parent of the child, who had sought costs in the District Court, saying that the proceedings were civil proceedings for the purposes of O. 51 r. 1. She held that the child care proceedings were ' civil' proceedings and that a jurisdiction to award costs thus arose. O'Malley J. took the view that the matter before her was a civil case simpliciter and did not consider, for the purposes of the question of costs under the Rules and the Courts Acts, that a distinction was required to be drawn between public and private civil law cases.

16 It should be noted that the Attorney General accepted in the High Court that the District Court did have power to award cost, and that the argument that no such power exists was made by the HSE.

17 At para. 32 of her judgment O'Malley J. stated:-

'Counsel for the HSE argues that none of the above...