DPP v Fogarty

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Eagar
• Judgment Date: 10 May 2019
• Neutral Citation: [2019] IEHC 308
• Court: High Court
• Docket Number: [2018 1442 SS]
• Date: 10 May 2019

IN THE MATTER OF S. 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 (AS AMENDED) AND IN THE MATTER OF O. 102 (b) R. 15 OF THE RULES OF THE DISTRICT COURT AND IN THE MATTER OF O. 62 OF THE RULES OF THE SUPERIOR COURTS AND IN THE MATTER OF PROCEEDINGS

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

V.

CLAUDIA FOGARTY

DEFENDANTS

THE MINSITER FOR JUSTICE AND EQUALITY

NOTICE PARTY

[2019] IEHC 308

[2018 1442 SS]

THE HIGH COURT

CONSULTATIVE CASE STATED

Consultative case stated – Fines (Payment and Recovery) Act 2014 s. 7 – District Court Rules O. 23, r. 5 – District Judge seeking the opinion of the High Court by way of consultative case stated – Whether the proceedings under s. 7 of the Fines (Payment and Recovery) Act 2014 are of a judicial or an administrative nature

Facts: On the 19th November 2018, Judge O’Leary as a Judge of the District Court assigned to District No. 19 sought the opinion of the High Court on the following questions by way of consultative case stated: (a) Are the proceedings under s. 7 of the Fines (Payment and Recovery) Act 2014 of a judicial or an administrative nature? (b) Is the Director of Public Prosecutions (DPP) or other prosecuted proceedings which result in a fine which subsequently becomes the subject of the notice issued under s. 7 of the 2014 Act a party to proceedings on foot of said notice? (c) Do the provisions of O. 23, r. 5 of the District Court Rules, as amended by the District Court (Fines) Rules 2016 apply to such proceedings or does Judge O’Leary have a discretion to apply an analogous provision to the proceedings before him? (d) Does Judge O’Leary have a discretion to strike out proceedings on foot of such notice in the event of neither the person named as prosecutor nor the person named as defendant in such a notice appearing on the occasion of such listing of such notice, which is a circumstance not provided for in the District Court Rules? (e) Do such proceedings come within the sort of proceedings which may be the subject of a criminal legal aid certificate under the relevant legislation?

Held by the Court that the case stated fell marginally under the Courts (Supplemental Provisions) Act 1961. The Court proposed dealing with the questions raised.

The Court held that the answers to the questions were as follows: (a) Proceedings under s. 7 of the 2014 Act are of a judicial nature. (b) Neither the DPP nor any other prosecutor in respect of proceedings which result in a fine are party to the proceedings and are not required to attend. (c) In the light of the answer to question (b), s. 3 does not arise as it relates to the hearing of the initial complaint under O. 23, r 5. (d) This does not arise as regards the prosecutor not attending court in the light of the answer to question (b). If the person fined does not attend then s. 7 (7) of the Act provides that the court may issue a warrant for the arrest of the person, or set a new date for their attendance. There is no basis for striking out the proceedings in either circumstance. (e) The Court had not sufficient information to deal with this matter except insofar as to say that after the decision of the complaint results in either an acquittal or a conviction, the legal aid certificate does not continue where a fine has been imposed and the complainant does not discharge the fine as required.

Consultative case stated.

JUDGMENT of Mr. Justice Robert Eagar delivered on the 10th day of May 2019

1 This is a judgment of this Court in relation to the questions posed by Judge O'Leary of the District Court.

2 On the 19th November 2018, Judge O'Leary as a Judge of the District Court assigned to District No. 19 sought the opinion of this Court by way of consultative case stated.

3 S. 52 of the Courts (Supplementary Provisions) Act 1961 as amended, makes provision for ‘a consultative case stated’ whereby a case can be stated in the course of the proceedings before the District Court prior to their determination.

4 In O'Shea v. Westwood Club Ltd. [2015] IEHC, the question of law must be one ‘arising’ from the facts as found by the District Judge and so must relate to a matter in issue in the case. The jurisprudence makes it clear that a District Judge may state a case at any stage in the proceedings up until he makes his final determination in the matter.

5 In the Attorney General v. McLoughlin [1931] IR 430, Sullivan P. stated: -

‘It is obvious that the only question of law which a District Justice can refer to this Court is a question of law arising in any case before him, and that he has no right to ask this Court to answer questions “extraneous to the issues affecting the defendant's case”’.

Therefore, a District Judge must hear sufficient evidence to make findings of fact on the basis of which questions of law set out in the case stated can be decided.

6 The court will set out the consultative case stated and the first issue which the court must decide is whether or not the case is stated in accordance with the jurisprudence.

The case stated

7 ‘This is a case stated by me, Constantine G. O'Leary, a Judge of the District Court assigned to District No. 19 pursuant to s. 52 (i) of the Courts (Supplementary Provisions) Act 1961.

(i) In a prosecution by the Director of Public Prosecutions, Claudia Fogarty the defendant named above was duly fined €600 by a judge of the District Court duly assigned to District No. 19 on the 24th November 2016, which fine has not been paid.

(ii) A number of requests for payment were sent by the Courts Service to the defendant which did not result in payment and ultimately a Notice was sent to the defendant in accordance with the provisions of s. 7 (4) of the Fines (Payment and recovery) Act 2014, requiring her to attend at a sitting of the District Court at the Courthouse, Anglesea Street, Cork, on the 30th October 2018 and provide information to the court in accordance with the terms of that subsection.

(iii) The defendant instructed her solicitor, Ms. Emma O'Leary, to attend on her behalf on that date and place which her solicitor duly did.

(iv) There was no appearance by or on behalf of the prosecutor, which as far as I am aware is a universal practice of the prosecutor in such matters, she having taken the view that she has no role in them and it is under the legislation a matter exclusively for the Courts Service and the Judge of the District Court to secure collection of the amount payable as a fine, the prosecutors” role having ceased at the time of the imposition of the fine.

(v) I was concerned at the position that I was in as I am not aware of any other function permitted to or directed to be performed by a Judge of the District Court where the named ruling party is not required to attend to secure a decision by the court and found the nature of the proceedings as between being proceedings of a judicial or an administrative nature difficult to identify and was therefore uncertain of the legal context of the proceedings and of the nature as opposed to the specifics of the proceedings and therefore of the principles to be applied.

(vi) I note that the forms prescribed by the District Court (Fines) Rulings 2016 make provision for the prosecutor of the offence the subject of the fine to be named in the notice under s. 7 (4) to be named as ‘prosecutor’.

(vii) I note that O. 23 r. 5 of these rules states that in the event of the appearance of the defendant and the non – appearance of the prosecutor, the ‘complaint’ may be struck out.

(viii) I note that the Court of Appeal concluded in its judgment in the cases of Owens v. DPP & Ors and Dooley v. DPP & Ors by indicating that it was a matter for the Director to decide if she should institute proceedings under s. 7 of the Fines (Payment and Recovery) Act 2014, which statement I cannot reconcile with the position taken by the Director to proceedings before me under the Act.

(ix) When the matter came before me on the 13th November 2018 and asked that the local state solicitor be notified of my difficulties, there was no appearance by any person on behalf of the Director on the said dates.

(x) On the 13th November 2018 Ms. Emma O'Leary for the applicant made an application under O. 23, r. 5 for the matter to be dismissed for want of prosecution in the light of the fact that the prosecutor was not in attendance. I say that I decided to state a case based on the application made above and the law as open to the court before me on the 13th November 2018 and adjourned this matter to the 15th November 2018 to allow the necessary question to be drafted.

(xi) The opinion of the High Court is therefore sought on the following questions:

(a) Are the proceedings under s.7 of the Fines (Payment and recovery) Act, 2014 of a judicial or an administrative nature?

(b) Is the DPP or other prosecuted proceedings which result in a fine which subsequently becomes the subject of the notice issued under s. 7 of the Fines (Payment and Recovery) Act, 2014 a party to proceedings on foot of said notice?

(c) Do the provisions of O. 23, r. 5 of the District Court Rules, as amended by the District Court (Fines) Rules 2016 apply to such proceedings or do I have a discretion to apply an analogous provision to the proceedings before me?

(d) Do I have a discretion to strike out proceedings on foot of such notice in the event of neither the person named as prosecutor nor the person named as defendant in such a notice appearing on the occasion of such listing of such notice, which is a circumstance not provided for in the District Court Rules?

(e) Do such proceedings come within the sort of proceedings which may be the subject of a criminal legal aid certificate under the relevant legislation?

Signed by Constantine O'Leary.

8 The facts of the case were set out by Judge O'Leary as follows: -

(i) ‘In her prosecution by the Director of Public Prosecutions, Claudia Fogarty, the defendant,...