DPP (Clarke) v Stafford

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 14 June 2005
• Neutral Citation: [2005] IEHC 187
• Court: High Court
• Docket Number: [2004 No. 1997 SS]
• Date: 14 June 2005

[2005] IEHC 187

THE HIGH COURT

[No: 1997SS/2004]

DPP (CLARKE) v STAFFORD

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF SERGEANT MICHAEL CLARKE)

PROSECUTOR

-AND-

SIMON STAFFORD

ACCUSED

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

COURTS (NO. 3) ACT 1986 S1

COURTS (NO. 3) ACT 1986 S1(4)

COURTS (NO. 3) ACT 1986 S1(7)(a)

PETTY SESSIONS (IRL) ACT 1851 S10(4)

INTERPRETATION ACT 1937 S11(h)

DODDS v WALKER 1981 2 AER 609

CRIMINAL LAW

summary offence

Time limits - Summons - Whether summons obtained within six months - Dodds v Walker [1981] 1 WLR 027; Williams v Burgess (1840) 12 Ad &El 635; Young v Higgon (1840) 6 M & W 49; Radcliffe v Bartholomew (1892) 1 Q B 161 and Frew v Morris (1897) 34 ScLR 527 followed - Petty Sessions (Ireland) Act 1851 (14 & 15 Vict, c 93), s 10(4) - Interpretation Act 1937 (No 38), s 11(h) - Courts (No 3) Act 1986 (No 33), ss 1(4), 1(7) - Summons issued within time

Facts: the time within which an application may be made for the issue of a summons pursuant to section 1(4) of the Courts (No. 3) Act 1986 is provided for by section 10(4) of the Petty Sessions (Ireland) Act 1851 which provides that "in all cases of summary jurisdiction the complaint shall be made within six months from the time when the cause of complaint shall have arisen". Section 11(h) of the Interpretation Act 1937 provides that "the following provisions shall apply and have effect in relation to the construction of every Act of the Oireachtas...where a period of time is expressed to begin on or be reckoned from a particular day, that day shall...be deemed to be included in such period and where a period of time is expressed to end on or be reckoned to a particular day, that day shall...be deemed to be included in such period". At Wexford District Court on the 30th June, 2003, the accused was accused of dangerous driving on the 31st August, 2002. The application for the summons had been made by the prosecuting garda on the 28th February, 2003 and the summons was issued on the same date. The accused sought a dismissal on the grounds that the application for the summons had not been made within six months of the alleged offence, relying on section 11(h) of the Act of 1937 that the 31st August, 2003, should have been included as the first day of the six month period, it being further submitted that as it was the last day of August, 2002 the six month period had to expire on the 2nd last day of the sixth month which was the 27th February, 2003. The District Court stated a case for the opinion of the High Court as to whether the application was made within time.

Held by Finlay Geoghegan J in answering the case stated to the effect that the summons was applied for within six months of the date of the commission of the alleged offence that section 11(h) of the Act of 1937 did not apply to computation of the six month period in relation to the application for the summons as section 11(h) only applied to Acts of the Oireachtas and the Act of 1851 was not an Act of the Oireachtas. In calculating the period of six months, the day on which the offence was committed is excluded. Statutory time limits had to be capable of certain computation. Accordingly, the way in which a period of six calendar months form the date of commission of an offence should be calculated was that the date of offence had to be included in the six month period and the six month period expired on the day before the equivalent date to that date in the sixth month. Where the date of offence was at the end of a month such that in the sixth month there was no day which was equivalent to one day less than the date of the offence then it had to expire on the last day of the sixth month.

Reporter: P.C.

1 Judgment of Ms. Justice Finlay Geoghegan delivered on the14th June 2005.

2 On the 23rd November, 2004 the former President of the District Court, His Hon. Judge Smithwick, stated a case for the opinion of the High Court pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act, 1961 in the following terms:

3 1. At a sitting of the District Court at Wexford on 30th June, 2003 Simon Stafford was accused of dangerous driving and associated offences at Kilmore, Wexford on 31st August, 2002.

4 2. The application for the summons was made by the prosecuting Garda Sergeant on 28th February, 2003 and the summons was issued by the appropriate District Court clerk on the same date.

5 3. The Defence sought a dismissal on the ground that the application was not made within six months of the alleged offence.

6 4. The Prosecution contend that the application was within six months in that any application on or before 28th February, 2003 would be in time.

7 It is common case that the District Court summons was issued on the 28th February, 2003 by the appropriate District Court clerk pursuant to s. 1 of the Courts (No. 3) Act, 1986 following an application under s. 1(4) of the Act of 1986 also made on the 28th February, 2003 by the prosecuting Garda Sergeant.

8 The time within which an application may be made for the issue of a summons pursuant to s. 1(4) of the Act of 1986 is provided for by s. 1(7)(a) of the Act of 1986 which provides:

"(7) ( a) Any provision made by or under any statute passed before the passing of this Act relating to the time for making a complaint in relation to an offence shall apply, with any necessary modifications, in relation to an application under subsection (4) of this section."

9 It is likewise agreed that the relevant earlier statutory provision is s. 10(4) of the Petty Sessions (Ireland) Act, 1851 which in material terms provides:

"In all cases of summary jurisdiction the complaint shall be made . . . within six months from the time when the cause of complaint shall have arisen, but not otherwise."

10 The offence to which the summons relates was committed on the 31st August, 2002. Accordingly the application must have been made "within six months" from the 31st August, 2002. The issue presented by the case stated is how that phrase should be construed for the purposes of determining the relevant six month period under s. 10(4) of the Act of 1851. The contention on behalf of the accused is that the relevant six month period expired on the 27th February 2003. In support of that contention it is submitted, in reliance on s. 11(h) of the Interpretation Act, 1937, that the 31st August, 2002, should be included as the first day of the six month period. It is further submitted that as it was the last day of August, 2002 the six month period must expire on the 2nd last day of the sixth month which in the case of February, 2003 was 27th February.

11 On behalf of the prosecutor the contention is that, regardless of whether the 31st August 2002 is included or excluded the six month period provided for by s. 10(4) of the Act of 1851 included the 28th February, 2003. The submissions made in response to the submissions on behalf of the accused and in support of this contention may be summarised as follows:-

12 (i) The relevant time within which the application by the Garda Sergeant must be made under s. 1(4) of the Act of 1986 is specified by s. 10(4) of the Act of 1851 and s. 11 (h) of the Interpretation Act, 1937 does not apply.

13 (ii) A month as used in s. 10(4) of the Act of 1851 is a calendar month.

14 (iii) It was settled Irish law prior to 1922 that the date of commission of an offence was excluded in the computation of the six month period for the purposes of s. 10(4) of the Act of 1851 and that the relevant rule of computation of the six month period was the same date rule i.e. where an offence was committed on say the 7th January, 1900 the complaint must have been made on or before the 7th July, 1900. Further that, where as in this instance the offence was committed on the 31st August then as in February there is no 31st the six...