DPP v Patrick Hickey
| Jurisdiction | Ireland |
| Judge | MR JUSTICE MCCARTHY |
| Judgment Date | 05 October 2007 |
| Neutral Citation | [2007] IEHC 379 |
| Docket Number | [2007 No. |
| Court | High Court |
| Date | 05 October 2007 |
[2007] IEHC 379
BETWEEN
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)
COURTS (NO 3) ACT 1986 S1
CIVIL LIABILITY & COURTS ACT 2004 S49
PETTY SESSIONS (IRELAND) ACT 1851 ADAPTATION ORDER SI 300/1938
KELLY v HAMILL & DPP UNREP MCCRACKEN 21.1.1997 1997/4/1332
DPP v MCQUAID UNREP MURPHY 26.10.1984 1984/6/1968
PAYNE v DISTRICT JUDGE BROPHY 2006 1 IR 560 2006 IEHC 34
CRIMINAL LAW
Summons
Administrative procedure - Application for summons made by retired garda - Whether application made on behalf of Director of Public Prosecutions - Whether summons valid - Whether attendance could cure perceived defect - Payne v Brophy [2006] IEHC 34, [2006] 1 IR 560 applied; People (DPP) v McQuaid (Unrep, Murphy J, 26/10/1984) and Kelly v District Judge Hamill (Unrep, McCracken J, 21/1/1997) distinguished - Courts (No 3) Act 1986 (No 33), s1 - Civil Liability and Courts Act 2004 (No 31), s 49 - Summons found to be valid (2007/315SS - McCarthy J - 5/10/2007) [2007] IEHC 379
DPP v Hickey
MR JUSTICE MCCARTHY delivered on the 5th day of October 2007
In this case this Court has been consulted in this case stated by Judge Patrick Brady, a judge of the District Court assigned to Balbriggan District Court, pursuant to Section 52(1) of the Court (Supplemental Provisions) Act, 1961 on a point of law for its opinion. I do not propose to read out the entirety of the case stated, and I propose to seek to summarise the material before me. In particular, I will refer, however, explicitly to the findings of fact which the learned District Court judge made.
I think it is fair to summarise the facts in the following way. An application was made to what is acknowledged to be the appropriate District Court clerk in respect of the District Court area in question for the issue of a summons charging an offence of common assault being an indictable offence, and accordingly being an offence to which the provisions requiring a complaint within a period of six months did not apply.
In terms of the application for a summons which was made, it was stated that the applicant was one Garda Coyne. She was not, in fact, at the time of the application, a garda at all. She had retired from An Garda Síochána. However, the summons ultimately issued described the Director of Public Prosecutions as the prosecutor, and the application itself, obviously, therefore, resulted in the issue of a summons on the footing that it must have been made on behalf of the Director of Public Prosecutions. It must follow that that was the conclusion which the District Court clerk, or the District Court clerk's office, reached.
Reference has been made to the issue of a summons by computer, but, of course, by definition, a computer will issue only what is entered into it, and it must follow that the entry was an entry for the printing, so to speak, of a document which was ultimately to become a summons in the appropriate form for summonses. So, whatever the state of play was, whatever the reasons for it, the District Court clerk plainly concluded that the appropriate form of summons was one which named the Director of Public Prosecutions as prosecutor.
The question which arises in this case is whether or not the District Court clerk could lawfully issue a summons in those circumstances. It does not actually hinge on the form of the summons itself, but rather the exercise of the administrative procedure which was contemplated originally by the Courts (No. 3) Act, 1986 and now the Civil Liability and Courts Act 2004, whereby Section 49 effectively substitutes a new provision in largely similar terms for Section 1 of the 1986 Act.
Section 49 of the 2004 Act provides that proceedings in the District Court, and I attenuate the provisions slightly, may, "as a matter of administrative procedure", be commenced by a document known as an application for a summons for the prosecutor by the appropriate clerk. So one has to ask: What happened in this case? What happened in this case is that proceedings were issued to the prosecutor, who is described as the Director of Public Prosecutions. In addition, of course, the former, or old procedure remains in being and it is sometimes utilised, which is the procedure for a complaint made as the judge shall think fit, whether on oath or not, pursuant to the Petty Sessions (Ireland) Act, 1851 Adaption Order 1938.
That, of course, is not something with which we are concerned here, but Mr McDonagh has made the point, which I think is a fair point, that it must be considered that, since the parties who may utilise the administrative procedure contemplated in the 1986 and 2004 Acts must be gardaí or other persons authorised to prosecute, or must be made on behalf of such persons, it is only persons whose official status, as it were, might be assumed to confer upon them a sense of responsibility and not to make vexatious complaints, in contradistinction, perhaps, from a layperson who would be a common informer pursuant to the 2004 Act. That, I think, pertains merely to the possible legislative origin, or one of the legislative origins of the provision.
But, in any event, this administrative procedure is in the form of an application made to the appropriate office, that is to say the District Court clerk assigned to the relevant district, by or on behalf of the Attorney General, the Director of Public Prosecutions, a member of the Garda Síochána, or any person authorised by or under an enactment to bring and prosecute proceedings for the offence concerned.
Obviously, I am not in the position of the original fact-finding tribunal, and I am bound by the facts as found by the learned district judge and as set out in the case stated, but I may draw inferences from primary facts which are found by the District Court judge, and in this particular instance, by perusal of the documents and having regard to those findings of fact, it seems clear that the garda in question, or the retired garda in question applied on behalf of the Director of Public Prosecutions, for the issue of the summons, and the Director was a person entitled to avail of, by his servant or agent, that procedure.
Of course, it would not be appropriate for me to proceed on the basis that that is the case, and it is the case as a fact that the application was made on behalf of the Director, no one seems to dispute it is the case as a fact, unless the learned district judge had found facts which allowed me to draw that conclusion. Having regard to the findings of fact, with special reference to the contents of paragraphs 18 and 19, (which deal with the...
To continue reading
Request your trial