DPP v Roddy

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: PARKE J.:,O'HIGGINS C.J.
• Judgment Date: 25 February 1977
• Neutral Citation: 1977 WJSC-SC 507
• Docket Number: (1-1977),[1976 No. 58 SS]
• Date: 25 February 1977

1977 WJSC-SC 507

THE SUPREME COURT

O'Higgins C.J.

Griffin J.

Parke J.

(1-1977)

PEOPLE (D.P.P.) v. RODDY

REVERSING HIGH - 10.12.76

BETWEEN

THE PEOPLE AT THE SUIT OP THE DIRECTOR OF PUBLICPROSECUTIONS

Appellant/

Complainant

and

WILLIAM RODDY, JOHN J. DUFFY AND EDMUND RODDY

Respondents/

Defendants

1 JUDGMENT delivered the 25th day of February 1977by O'HIGGINS C.J.

2 This matter comes before this Court by way of an appeal by the Director of Public Prosecutions from the decision of Mr. Justice McMahon on a Case Stated by District Justice Gilvarry dated 4th February 1976. The Case was stated pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) 1961and the question raised by the District Justice is in the followingterms:-

"Whether I can hear charges brought by a member of the GardaSíochana in the name of the Director of Public Prosecutions when I accept that no specific authorisation was obtained from the saidDirector".

3 The Case discloses that a number of charges had been brought in the name of the Director of Public Prosecutions against each of the Defendants and thatthese charges comprised both charges relating to offences triable summarily and charges relating to indictable offences to which pleas of not guilty had been entered. Section 52 of the Courts (Supplemental Provisions) Act 1961only authorises the stating of a Case in relation to questions of law arising in proceedings which are being dealt with summarily by the Justice. For this reason consideration of the question of law raised by District Justice Gilvarry must be confined to its association with the charge being dealt with by him in exercise of his summary jurisdiction. The Case Stated having been so considered by Mr. Justice McMahon and he having answered the question asked in the negative this appeal against that decision has been brought by the Director of PublicProsecutions.

4 The argument on this appeal necessarily involved a consideration of the role in prosecutions for the breach of criminal law of the common informer, the Attorney General, and now, by the Prosecution of Offences Act 1974of the Director of Public Prosecutions. For this reason it seems to meappropriate that I should at the outset of this Judgment refer to what appears to have been the position at common law with regard to such prosecutions and the manner in which this position has been changed and modified by subsequent development.

5 At common law any person who could give information with regard to a breach of the law had the right to prosecute in respect of that breach. Because it was any person with information who had the right, such person became known as a common informer. This rule of the common law extended to statutory offences unless the statute creating the offence negatived or limited the right. The right was a general one and applied to all prosecutions where the offence charged was one against the public in general. In Kenealy v. O'Keeffe 1901 2 I.R. 39 at 42, Palles C.B. in considering the right of the private prosecutor had this tosay:-

"In cases of indictable offences the title of a prosecutor to prefer a bill of indictment does not depend upon pecuniary Interest. The prosecutor, as one of the public, puts the criminal law in notion, not for his own private profit, but to procure the infliction of punishment for an offence against the public of which he is one."

6 And having referred to what had been the law in relation to revenue oases he goes on to deal with the exercise of the summary jurisdiction of justices, as follows:-

7 "In the absence of decisions or practice to the contrary it would seem reasonable to infer from these premises that when justices acquired a jurisdiction to dispose summarily of particular new offences created by statute, prima facie, any member of the public might lay an information in respect thereof. This prima facie inference might necessarily be rebutted in either of two ways: first, by that which was constituted an offence, instead of being matter which affected the public generally, being no more that a grievance to a particular person. In such a matter the public as such had no concern. Secondly, by the statute creating the offence negativing, or limiting, the general right. But, if the offence was one against the public generally then the mere circumstance that a member of the public had no pecuniary interest in a conviction, would appear to be insufficient to rebut the inference, because it was not upon any such pecuniary interest that his primafacie right to proceed depended."

8 With the development of the summary jurisdiction in magistrates courts throughout the country it becamethe practice for members of the former Constabulary to prosecute in their own names as complainants for breaches of the law. This they were enabled to do not because they were police officers but because they were members of the public and acted as common informers. (See R. (Lawlor) v. Dunsterville and King's Co, JJ. 41 I.L.T.R..77) Prosecutions were thus conducted by-police officers not only in relation to summary offences but also in relation to indictable offences. Indeed so widespread was the practice of police officers engaging in a wide range of prosecutions both in England and in Ireland that the problem arose of such officers acting not only as complainants and witnesses but even as advocates. One reads that in Webb v. Catchlove 1886.50 J.P. 795 Denman J. thought:

9 "It is a most unfortunate practice for police officers to act the part of advocate in courts of justice. When witnesses, they should be mere witnesses and not be allowed to take up the position ofadvocates".

10 And Hawkins J. in the same case said that he thought:

11 "It is a very bad practice to allow a policeman to act as an advocate before any tribunal so that he would have to bring forward only such evidence as he might think fit andkeep back anything that he might consider likely to tell in favour of any person placed upon his trial."

12 The following year in Duncan v. Toms 16 Cox 267 Lord Coleridge C.J. said:-

13 "In the general observations made in Webb, v. Catchlove I should entirely concur. I agree that it is a bad practice for a policeman, being a general officer of the law, and one who ought to stand indifferent between the parties, to appear and act as an advocate in courts of justice."

14 In Ireland however the role of the policeman as prosecutor and even as quasi-advocate had been firmly established nearly two decades earlier when the following circular dated August 29th 1870 was issued to justices in Ireland:-

15 "A question having arisen respecting the right of a member of the Royal Irish Constabulory Force, without professional assistance, to conduct cases before magistrates and to examine and cross-examine the...