DPP v Courtney Walsh and Kirsty Walsh

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 31 August 2021
• Neutral Citation: [2021] IEHC 570
• Docket Number: 2020/1667/SS
• Court: High Court

In the Matter of Section 2 of the Summary Jurisdiction Act, 1857, As Extended by Section 51 of the Courts (Supplemental Provisons) Act, 1961

Between

The Director of Public Prosecutions

Prosecutor

and

Courtney Walsh and Kirsty Walsh

Defendants/Respondents

[2021] IEHC 570

2020/1667/SS

THE HIGH COURT

Extension of time – Procedure – Summary Jurisdiction Act 1857 s. 2 – Prosecutor seeking an extension of time with which to comply with the procedure mandated by s. 2 of the Summary Jurisdiction Act 1857 – Whether the interests of justice lay in favour of the granting of the extension of time

Facts: The defendants/respondents, Mses Walsh, appeared in the District Court on foot of summonses alleging the commission of offences contrary to the Prohibition of Incitement to Hatred Act 1989 and the Criminal Justice (Public Order) Act 1994, relating to an incident on 6th November, 2017. Both of the respondents pleaded guilty to offences contrary to s. 6 of the 1994 Act. The District Court Judge dismissed the charges which had been brought pursuant to s. 2 of the 1989 Act. This was based on the acceptance by the judge of submissions made on their behalf as to the construction of s. 8 of the 1989 Act to the effect that the section required that, when called upon by the defence to so prove, the prosecution was obliged to prove that the Director of Public Prosecutions (DPP) specifically consented to further proceedings being taken beyond the initiation of the prosecution. The DPP had directed the prosecution and was represented at the summary trial. The District Court held that the evidence of the DPP’s decision to prosecute for the relevant offences was not sufficient to comply with s. 8. The DPP contended that the determination of the District Court was erroneous in point of law and involved a misinterpretation of the relevant Statute. The prosecutor initiated an appeal by way case stated, the question being: Was the District Court Judge correct in dismissing the case against the defendants? The matter came before the High Court in circumstances where the respondents sought an order striking out the appeal by way of case stated on the basis that the prosecutor failed to comply with the procedure set down in s. 2 of the Summary Jurisdiction Act 1857. The prosecutor admitted that there was a failure to comply with the necessary procedure and, in response to the relevant motion, the DPP sought an extension of time with which to comply with the procedure mandated by s. 2 of the 1857 Act.

Held by the Court that, having had regard to the facts and circumstances in this case, the outcome of an assessment of where the interests of justice lay was that it decidedly favoured the granting of the extension of time and it would be to create a patent injustice if the Court was deprived of the opportunity to determine an issue of substance by reason of an innocent and understandable mistake which had been cogently explained and which had caused no prejudice whatsoever to the respondents. The Court refused the relief sought in the respondents’ motion which issued on 19 April 2021 and made an order enlarging time for compliance by the prosecutor with the procedural requirements laid down in s. 2 of the 1857 Act, in the sequence required by that section. The Court found that doing so reflects the approach taken in DPP v Kudriacevas [2014] IEHC 53 and recognises that, in the manner explained in Kudriacevas, the steps taken by the DPP can be regarded as a nullity in circumstances where all the right things were done but in the wrong order as per the sequencing requirements set out in s. 2 of the 1857 Act. Thus, relying on the relieving provision introduced by s. 45 of the Criminal Justice (Miscellaneous Provisions) Act 2009, the Court was entitled to deal with the situation before it as if no step had been taken.

The Court held that, in order to ensure that the strict compliance with sequencing laid down in s. 2 of the 1857 Act could be addressed, it was enlarging time so that, in reality, no more and no less than had already been done (between 30 October and 3 November 2020) could be done again, but in a different order.

Extension of time granted.

JUDGMENT of Mr. Justice Heslin delivered on the 31st day of August, 2021

Introduction

1 The respondents appeared in the District Court on foot of summonses alleging the commission of offences contrary to the Prohibition of Incitement to Hatred Act, 1989 (“the 1989 Act”) and the Criminal Justice (Public Order) Act, 1994 (“the 1994 Act”), relating to an incident on 6th November, 2017. Both of the defendants/respondents pleaded guilty to offences contrary to s. 6 of the 1994 Act. The District Court Judge dismissed the charges which had been brought pursuant to s. 2 of the 1989 Act. This was based on the acceptance by the learned judge of submissions made on their behalf as to the construction of s. 8 of the 1989 Act, which provides that “where a person is charged with an offence under section 2, 3 or 4, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions”. The District judge accepted the submission made on behalf of the respondents to the effect that this section required that, when called upon by the defence to so prove, the prosecution was obliged to prove that the DPP specifically consented to further proceedings being taken beyond the initiation of the prosecution. The DPP had directed the prosecution and was represented at the summary trial. The District Court held that the evidence of the DPP's decision to prosecute for the relevant offences was not sufficient to comply with s. 8. The DPP contends that the determination of the District Court was erroneous in point of law and involved a misinterpretation of the relevant Statute. The prosecutor initiated an appeal by way case stated, the question being: Was the District Court Judge correct in dismissing the case against the defendants? The matter comes before this court in circumstances where defendants/respondents seek an order striking out the appeal by way of case stated (“the Appeal”) on the basis that the prosecutor's failure to comply with the procedure set down in s. 2 of the Summary Jurisdiction Act, 1857. The prosecutor admits that there was a failure to comply with the necessary procedure and, in response to the relevant motion which seeks an order striking out the proceedings, the DPP seeks an extension of time with which to comply with the procedure mandated by s. 2 of the 1857 Act.

Relevant legislation

2 An appeal by way of case stated is provided for pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961 as amended by s. 45 of the Criminal Justice (Miscellaneous Provisions) Act, 2009. This provides as follows:

“After the hearing and determination by a Justice of any proceedings howsoever heard and determined (other than proceedings relating to an indictable offence which was not dealt with summarily by the court), either party to the proceeding before the said Justice or Justices may if dissatisfied with the said determination as being erroneous in point of law, apply in writing within fourteen days after the same to the said Justice or Justices, to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of the High Court; and such party, hereinafter called the Appellant, shall within three days after receiving such case or such longer period as may be provided for by rules of court, transmit the same to the Court first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party to the proceedings hereinafter called the respondent.”

3 Section 51 of the Courts (Supplemental Provisions) Act, 1961 provides as follows:

“51.—(1) Section 2 of the Summary Jurisdiction Act, 1857, is hereby extended so as to enable any party to any proceedings whatsoever heard and determined by a Justice of the District Court (other than proceedings relating to an indictable offence which was not dealt with summarily by the Court) if dissatisfied with such determination as being erroneous on a point of law, to apply in writing within fourteen days after such determination to the said Justice to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of the High Court.”

4 Section 45 of the Criminal Justice (Miscellaneous Provisions) Act, 2009 (“the 2009 Act”) provides as follows:

“Section 2 (as extended by section 51 of the Courts (Supplemental Provisions) Act, 1961) of the Summary Jurisdiction Act, 1857 is hereby amended by the insertion after ‘such Case’ of ‘or such longer period as may be provided for by rules of Court’.”

5 In light of the foregoing, s. 2 of the 1857 Act (as amended) lays down the following procedure to be followed by an appellant after the case stated is signed by the District Court Judge:-

“… the appellant, shall, within three days after receiving such case, or such longer period as my be provided for by Rules of Court, transmit the same to the court named in his application first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party to the proceeding in which the determination was given, hereinafter called the respondent”. (Emphasis added)

6 It is uncontroversial to say that s. 45 of the 2009 Act constitutes an intervention by the Oireachtas to permit an extension of time and at the heart of the case before this Court is the respondents' contention that the relieving provision in the form of s. 45 does not allow this Court to extend time other than in respect of the transmission of the case stated to the court — something which was, in fact, done well within time. In...