O'Flynn v District Justice Clifford

• Jurisdiction: Ireland
• Judge: WALSH J.
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-SC 1624
• Court: Supreme Court
• Docket Number: [1989 Nos. 24 & 35 S.C.],24/89
• Date: 01 January 1990

1989 WJSC-SC 1624

THE SUPREME COURT

Finlay C.J.

Walsh J.

Griffin J.

24/89

35/89

25/89

36/89

HANNIGAN v. CLIFFORD

BETWEEN/

MICHAEL HANNIGAN

Applicant

Appellant

and

DISTRICT JUSTICE JOHN P. CLIFFORD, THE DIRECTOR OF PUBLICPROSECUTIONS AND THE CIRCUIT COURT JUDGE FOR THE CORKCIRCUIT

Respondents

and

ANN O'FLYNN

Applicant

Appellant

and

DISTRICT JUSTICE JOHN P. CLIFFORD, THE DIRECTOR OF PUBLICPROSECUTIONS AND THE CIRCUIT COURT JUDGE FOR THE CORKCIRCUIT

Respondents

Citations:

CRIMINAL PROCEDURE ACT 1967 S81

OFFENCES AGAINST THE STATE ACT 1939 S30

DPP, PEOPLE V QUILLIGAN 1986 IR 495, 1987 ILRM 606

O'CONNELL, STATE V FAWSITT 1986 IR 362, 1986 ILRM 639

BRENNAN, STATE V CONNELLAN UNREP HAMILTON 17.06.86 1987/1/110

PEOPLE V RYAN UNREP CCA 16.02.89

Synopsis:

CRIMINAL LAW

Summons

Issue - Delay - Effect - Prosecution - Commencement - Defence - Prejudice - Proof - Absence - Offence committed on 17/8/86 - Accused charged on 8/2/88 - No evidence that prior prosecution possible - Refusal to quash return for trial - Offences Against the State Act, 1939, s. 30 - (25, 36/89 - Supreme Court - 20/12/89) [1990] ILRM 65

|O'Flynn v. Clifford|

DELAY

Summons

Issue - Prosecution - Commencement - Defence - Prejudice - Proof - Absence - Continuation of prosecution allowed - (25, 36/89 - Supreme Court - 20/12/89) [1990] ILRM 65

|O'Flynn v. Clifford|

1 JUDGMENT delivered on the 20th day of December 1989by WALSH J. [NEM DISS]

2 The point of law arising in each of these cases is identical and I propose dealing with both of them inthis judgment.

3 These appeals are brought by way of appeal against the order and judgment of Mr. Justice Gannon made in an application for judicialreview.

4 In each case permission for leave to apply for a judicial review was granted by Mr. Justice Barr in the High Court on the 2nd May 1988. The relief sought was in each case an order of certiorari in respect of an order of preliminary examination made in the District Court pursuant to s. 81 of the Criminal Procedure Act, 1967on the 15th March 1988 by District Justice Clifford and an order of prohibition to be directed to the Circuit Judge to prohibit him from arraigning or trying or in anyway dealing with the offences, which were the subject of the orders of preliminary examination already mentioned. These forms of relief were sought on the grounds that the District Justice acted without jurisdiction or alternatively exceeded his jurisdiction or in the further alternative acted other than in accordance with the principles of natural andconstitutional justice. It was also alleged that the Director of Public Prosecutions was acting contrary to the principles of natural and constitutional justice in the legal submissions made on his behalf to the District Justice which caused the order of preliminary examination to be made. So far as the Director of Public Prosecutions was concerned it was claimed that a fault on his part also lay in a failure to proceed with the prosecution of the applicants speedily and expeditiously and that in failing to do so he had subjected them to a delay which made any possible trial of them unfair. It was also claimed that the District Justice was in error in not striking out and dismissing the charges because of the alleged delay. It was further sought that for the same reason the putting down of the indictment and the arraignment of the applicants by the Director of Public Prosecutions should be stayed until determination of the subject matter of the judicial review.

5 In opposition it was stated on behalf of therespondents that no grounds had been set forth which would justify that the applicants were getting the relief which they sought and that in fact there had been no excessive delay in prosecuting the case against the applicants. It was further claimed that there was no evidence of any prejudice to the applicants by the alleged delay.

6 Further matters were raised concerning the possibility of an early trial etc. which are not immediately relevant to the case before thisCourt.

7 The matter came on before Mr. Justice Gannon in the High Court on the 8th, 9th and 12th December and he refused the judicial review sought and he refused to make an order of certiorari or an order ofprohibition.

8 The relevant facts are as follows.

9 The applicants were arrested on the 3rd September 1986 under the provisions of s. 30 of the Offences against the State Act, 1939and were subsequently released without any charge being brought against either of them. The principles governing arrests under section 30 of theAct of 1939 have been clearly laid down by this Court in its judgment in The People v. Quilligan 1986 IR 495, 1987 ILRM 606, and it is not necessary here to repeat them. It is quite clear, as it was pointed out by Mr. Justice Gannon in his judgment, that persons cannot be arrested under that section simply for the purpose of enabling evidence to be gathered. One assumes that the release of the two applicants following their arrest under section 30 was due to the fact that there was not sufficient evidence upon which they could be charged with any offence. One must also assume, for the purpose of this case at least, that they were arrested correctly and in accordance with section 30 of the Act of 1939 on suspicion of having committed an offence for which an arrest is authorised by section 30 and that all the necessary formalities of arrest were complied with. There has been no evidence before this Court as to precisely what reasons were given for their arrests nor have the arrests been challenged as...