Glavin v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: GRIFFIN J.,HEDERMAN J.,O'FLAHERTY J.,Keane J.
• Judgment Date: 01 January 1991
• Neutral Citation: 1991 WJSC-SC 562
• Court: Supreme Court
• Docket Number: (213/90),[S.C. No. 213 of 1990]
• Date: 01 January 1991

1991 WJSC-SC 562

THE SUPREME COURT

Griffin J.

Hederman J.

McCarthy J.

O'Flaherty J.

Keane J.

(213/90)

GLAVIN v. GOV OF MOUNTJOY

BETWEEN

RICHARD GLAVIN

Applicant

and

THE GOVERNOR OF THE TRAINING UNIT MOUNTJOYPRISON

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE ATTORNEYGENERAL

Notice Parties

Citations:

LARCENY ACT 1916 S23(1)

CRIMINAL LAW (JURISDICTION) ACT 1976 S5

CRIMINAL PROCEDURE ACT 1967 S5

CRIMINAL PROCEDURE ACT 1967 S8

COURTS OF JUSTICE (DISTRICT COURT) ACT 1949 S2

SHELLY V MAHON & DPP 1990 IR 36

PEOPLE V BOGGAN 1958 IR 62

SINGER, IN RE (NO 2) 98 ILTR 112

CONSTITUTION ART 38.1

COURTS (NO 2) ACT 1988 S1(2)(a)

COURTS (NO 2) ACT 1988 S1(3)

O'SHEA V DPP 1988 IR 655

CRIMINAL PROCEDURE ACT 19671967 PART 11

CRIMINAL PROCEDURE ACT 1967 S14

CONSTITUTION ART 34.1

COSTELLO V DPP 1984 IR 436

CONSTITUTION ART 34

CONSTITUTION ART 6

C, STATE V MIN FOR JUSTICE 1967 IR 106

COURTS (NO 2) ACT 1988 S1(2)

COURTS (NO 2) ACT 1988 S1

CRIMINAL PROCEDURE ACT 1967 S8(5)

Synopsis:

CIRCUIT COURT

Jurisdiction

Indictable offence - Conviction - District Court - Preliminary examination - Return for trial - Condition precedent - Return invalid - Conviction quashed - (213/90 - Supreme Court - 21/12/90) - [1991] 2 I.R. 421 - [1991] ILRM 478

|Glavin v. Governor of Training Unit, Mountjoy Prison|

CONSTITUTION

Courts

Administration of justice - Judge - Status - Termination - Retirement - Order made after date of retirement - Order void - (213/90 - Supreme Court - 21/12/90) [1991] 2 IR 421 [1991] ILRM 478

|Glavin v. Governor of Training Unit, Mountjoy Prison|

CONSTITUTION

Oireachtas

Legislation - Powers - Restriction - Constitutional rights - Infringements - Legislative validation - Validation ineffective - (213/90 - Supreme Court - 21/12/90) [1991] 2 I.R. 421

|Glavin v. Governor of Training Unit, Mountjoy Prison|

CONSTITUTION

Personal rights

Criminal charge - Trial - Due course of law - Circuit Court - Conviction - Return for trial invalid - Conviction a nullity - (213/90 - Supreme Court - 21/12/90) - [1991] 2 I.R. 421

|Glavin v. Governor of Training Unit, Mountjoy Prison|

CONSTITUTION

Trial of offences

Fundamentals - Due course of law - Indictable offence - District Court - Preliminary examination - Return for trial - Acts of former District Justice - Conviction in Circuit Court - Enactment purported to validate acts - Validation expressed to be without prejudice to accused's constitutional rights - Invalid return for trial - Conviction quashed - Remittal of proceedings - Courts of Justice (District Court) Act, 1949, s. 2 - Criminal Procedure Act, 1967, ss. 5, 8 - Courts (No.2) Act, 1988, s. 1 - Constitution of Ireland, 1937, Articles 34, 38, 40 - (213/90 - Supreme Court - 21/12/90) - [1991] 2 I.R. 421 - [1991] ILRM 478

|Glavin v. Governor of Training Unit, Mountjoy Prison|

CRIMINAL LAW

Jurisdiction

Circuit Court - Foundation - District Court - Indictable offence - Preliminary examination - Return for trial - Return invalid - Conviction quashed - (213/90 - Supreme Court - 21/12/90)

|Glavin v. Governor of Training Unit, Mountjoy Prison|

JUDGE

Retirement

Functions - Discharge - Continuance - Criminal charge - District Court - Return for trial - Return invalid - Conviction invalid - Remedial legislation - Infringement of constitutional rights - Remedial legislation ineffective to validate order - (213/90 - Supreme Court - 21/12/90) - [1991] 2 I.R. 421 - [1991] ILRM 478

|Glavin v. Governor of Training Unit, Mountjoy Prison|

WORDS AND PHRASES

"Due course of law"

Criminal charge - Trial - Judge - Retirement age - Continuance in office - Absence of warrant extending appointment - Accused returned for trial - Conviction - Return invalid - Conviction quashed - (213/90 - Supreme Court - 21/12/90) - [1991] 2 I.R. 421

|Glavin v. Governor of Training Unit, Mountjoy Prison|

1 JUDGMENT delivered on the 21st day of December 1990by GRIFFIN J.

2 As the facts have been fully set out in the judgment of the President of the High Court a brief summary of the facts will suffice. On the 22nd of October 1986 the applicant appeared before District Justice Seamus Mahon sitting in the District Court areaof Carlow charged with robbery contrary to s. 23(1) of the Larceny Act, 1916 as inserted by s. 5 of the Criminal Law (Jurisdiction) Act, 1976.The District Justice conducted a preliminary examination of the charge in accordance with the provisions of s. 5 of the Criminal Procedure Act, 1967and, being of opinion that there was a sufficient case to put the applicant on trial for the offence charged, sent him forward for trial pursuant to s. 8 of that Act to the Circuit Court at Kilkenny. In that Court, the applicant pleaded guilty to the charge and was, on the 6th of November 1986, sentenced to ten years imprisonment by the Circuit Court Judge. On the 25th May 1987 the Court of Criminal Appeal varied that sentence to one of six years from the date of the originalsentence.

3 On the date on which the order for the return for trial was made District Justice Mahon was in fact no longer a District Justice, as he had reached the age of retirement on the 4th of January 1984 and had not, before that date, obtained a warrant continuing him inoffice after that date pursuant to s. 2 of the Courts of Justice (District Court) Act, 1949- see Shelly v. District Justice Seamus Mahon and the D.P.P.unreported, judgment delivered by this Court on the 8th of March 1990, in which this question and the invalidity of five warrants subsequently made in the mistaken belief that he would reach retirement age on the 4th of January 1985 was fully discussed. The District Justice had therefore no jurisdiction to conduct the preliminary examination or to send the applicant forward for trial and the order sending him forward for trial was therefore null and void. In consequence, on the authority of The People v. Boggan 1958 I.R. 62 the Circuit Court had no jurisdiction to try him on that charge.

4 In that case, Lavery J., in the course of delivering the majority judgment of the Court, said at p. 85:-

"... the basis of the jurisdiction to try a criminal charge on indictment is a preliminary investigation conducted by aJustice of the District Court on a valid order receiving informations and sending the accused forward for trial ...".

5 And in In the Matter of Paul Singer (No. 2) 98 ILTR 112, Walsh J. said at p. 127:-

"The essence of the decision of the Supreme Court in ThePeople v. Boggan 1958 I.R. 67 is that the basis of the jurisdiction of the Circuit Court, or of the Central Criminal Court, to try a criminal charge on indictment is a preliminary investigation conducted by a justice of the District Court".

6 It is accepted by counsel for the respondent and notice parties that the Circuit Court had, on the date of the trial in that Court, no jurisdiction to try the applicant.

7 Art. 38, s. 1 of the Constitution requires that "No person shall be tried on any criminal charge save in due course of law". In this case, if prior to the 20th of December 1988, being the date on which the Courts (No. 2) Act, 1988came into force, an application for judicial review had been made in the High Court onbehalf of the applicant, the orders of the District Court returning the applicant for trial and of the Circuit Court for his conviction and sentence would undoubtedly have been quashed. Indeed, counsel for the respondent and notice parties readily conceded this in the course of submissions in this Court.

8 The object of the Act of 1988 (in so far as this case is concerned) was to enable warrants under s. 2 of the Act of 1949 extending the age of retirement of District Justice Mahon to be made retrospectively and to validate everything done or purporting to have been done by him as if warrants had been duly made under s. 2 of the Act of 1949 in respect of each of the years commencing on the dates on which he reached his 65th to his 69th birthdays inclusive. Pursuant to s. 1(2)(a) of the Act of 1988 warrants were made in respect of each of the five years in question. In effect, s. 1(2)(a) was a purported retrospective validation of the preliminary examination conducted by the District Justice and of the order returning the applicant fortrial and, in consequence, a purported validation of his trial, conviction and sentence by the Circuit Court. That subsection was, however, subject to the qualification contained in s. 1(3) i.e. that if the expressed validation conflicted with a constitutional right of the applicant "the validation shall be subject to such limitation as is necessary to secure that it does not so conflict". If, therefore, the purported validation of the preliminary examination by the District Justice and of the order returning the applicant for trial made by him conflicts with one of his constitutional rights, such validation will be ineffective

9 On the 12th of April 1990 the learned President gave leave to the applicant to apply for an order of certiorari by way of application for judicial review in respect of the said order of the District Court and the Circuit Court. The application for judicial review was heard by the learned President and, on the 11th of May 1990, he delivered his judgment. In the course of that judgment he concluded (inter alia):

10 that the preliminary investigation and return for trial was anullity;

11 that the trial and conviction of the applicant by the Circuit Court Judge was also a nullity;

12 that the applicant's constitutional right to a trial in due course of law was infringed;

13 and that the order made in the District Court on the 22nd of October 1986 was not validated by the Courts (No. 2) Act 1988because the Oireachtas did not intend to infringe any person's constitutional right to a legal trial.

14 He accordingly made an order quashing the order made by the District Justice on the 22nd of October 1986 and made a declaration that the applicant's detention...