Fitzgerald v District Judge Dempsey
| Jurisdiction | Ireland |
| Judge | Mr. Justice Eagar |
| Judgment Date | 17 June 2016 |
| Neutral Citation | [2016] IEHC 342 |
| Docket Number | [2014 No. 718 J.R.] |
| Court | High Court |
| Date | 17 June 2016 |
[2016] IEHC 342
THE HIGH COURT
JUDICIAL REVIEW
Eagar J.
[2014 No. 718 J.R.]
Crime & Sentencing – The Criminal Justice (Public Order) Act 1994 – Issuance of bench warrants – Absence from court date – Excess of jurisdiction – Part 3 of the Criminal Procedure Act, 1967
Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent for issuing the bench warrant for the arrest of the applicant owing to his non-appearance on the scheduled date in the District Court. The counsel of the applicant contended that despite him informing the first named respondent that the applicant was required to attend the proceedings before the High Court, the first named respondent had issued the bench warrants against the applicant.
Mr. Justice Eagar refused to grant the desired relief to the applicant. The Court held that under part III of the Criminal Procedure Act, 1967, the District Court could not remand a person who had been granted bail in his absence for the purpose of attending another court. The Court observed that the power of issuance of bench warrants being discretionary should be exercised carefully. The Court found that the issuance of bench warrants by the District Court was within jurisdiction keeping in lieu the history of bench warrants issued against the applicant, lack of documentation supporting his requirement before another court, absence of any arrangement to furnish prior information pertaining to High Court proceedings on the schedule date and non-compulsion of the applicant's attendance at the High Court proceedings.
These proceedings for judicial review seek an order quashing the order of the first named respondent made on 26th November, 2014 in Swords District Court, in which he issued a bench warrant for the arrest of the applicant in respect of two charges.
The facts appear as follows:
The applicant was arrested by Garda Stephen Harte on 22nd November, 2014 in respect of offences alleged to have been committed of s. 4 and s. 6 of the Criminal Justice (Public Order) Act 1994. He was brought to Swords Garda Station and charged with these offences. He was granted station bail on the morning of 23rd November, 2014. He was bailed to appear at Swords District Court on 26th November, 2014. It is important to remember that when a person is released from a Garda station to appear on a certain date, the decision on what date he should appear is normally that of the prosecutor but the experience of this Court is that, if there is a matter which requires a person to be elsewhere on the particular selected date or dates, the prosecuting garda will normally fix a different date.
In fact, the applicant had brought High Court proceedings in respect of a constitutional challenge of various provisions of the Sex Offenders Act 2001 which had been listed for the 25th November, 2014. The case was called on for 3 days.
The case did not begin on Tuesday 25th November, 2014 and was adjourned to the morning of Wednesday 26th November, 2014. In fact, on that date no judges were available to hear the case and it was adjourned to a later date when it was heard by Binchy J.
On 26th November, 2014 the applicant did not appear to answer his bail in respect of the charges in Swords District Court.
The affidavit of Eleanor Leane of Messrs. KOD Lyons Solicitors indicates that she instructed counsel to appear on behalf of the applicant in Swords District Court to explain the applicant's absence, as he was due to appear before the High Court as the sole plaintiff in plenary proceedings, and to seek a later date in the applicant's absence. She also stated that she left a message by telephone at Swords Garda Station on the evening of 25th November, 2014 for the prosecuting Garda, Garda Stephen Raymond Harte, to give him advanced warning of the applicant's absence the following day.
She also swears that counsel spoke to the presenting sergeant on the morning of 26th November, 2014 and explained that the applicant would be absent, and informed the presenting sergeant of the reason for his absence. The presenting sergeant stated he would be applying for a bench warrant in the absence of any documentation which corroborated the reasons for the applicant's absence.
When the applicant's case was called by the court registrar, the presenting sergeant applied for a bench warrant in the applicant's absence, and despite the first named respondent being told by counsel the reason for the applicant's absence, the first named respondent issued a bench warrant for the applicant's arrest. Ms. Leane also states that the first named respondent stated, following a request by her attending counsel, that the bench warrant should be executed 'with discretion'. The experience of this Court is that such a direction from a judge implies that the Gardaí should come to some arrangement with the applicant for his surrender to the bench warrant.
Ms. Leane also states that it was physically impossible for the applicant to simultaneously attend both courts, and she claims that the first named respondent acted in excess of jurisdiction and contrary to the principles of natural and constitutional justice in issuing a bench warrant for the arrest of the applicant.
The supplemental affidavit of Eleanor Leane states that counsel advised that the applicant would be required to give evidence in...
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