Judge v DPP

JurisdictionIreland
CourtHigh Court
JudgeCarroll J.
Judgment Date01 January 1984
Neutral Citation1983 WJSC-HC 2886
Date01 January 1984

1983 WJSC-HC 2886

THE HIGH COURT

Record No. 32OOP - 1980
No. 6415 P - 1980
JUDGE v. D.P.P.
BETWEEN/
WILLIAM O'REILLY AND PETER JUDGE
PLAINTIFFS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE ATTORNEYGENERAL
DEFENDANTS
BETWEEN/
PETER JUDGE
PLAINTIFF

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE ATTORNEYGENERAL
DEFENDANTS

Subject Headings:

CONSTITUTION: statute

CRIMINAL LAW: trial

HIGH COURT: jurisdiction

NATURAL JUSTICE: fair procedures

1

Carroll J.Judgement delivered the 5th May 1983

2

These two cases were heard together on the basis that the issues were substantially the same. The relief sought is similar. There is some confusion in the pleadings in that in the first case, No. 3200P/198O, William O'Reilly and Peter Judge are both named as Plaintiffs, whereas in fact it is Peter Judge alone who is Plaintiff. Notice of Discontinuance by William O'Reilly as the first-named Plaintiff was filed on the 18th of July 1980. In this Action the claim of the Plaintiff, Peter Judge, is expressed to be based on the alleged unconstitutionality of Section 47 of the Offences, Against the State Act 1939(i.e. being charged directly before the Special Criminal Court on a certificate from the Director of Public Prosecutions - herein referred to as the D.P.P.). In the second case, No. 6415P/1980, the claim of the Plaintiff, Peter Judge, is also expressed to be based on the alleged unconstitutionality of Section 47 of the Offences Against the State Act, 1939, but is in fact based on Section 48 (i.e. transfer from the Central Criminal Court to the Special Criminal Court on a certificate from theD.P.P.).

3

The relief sought in the first case (No. 32OOP/198O) is fordeclarations;-

4

1. That Section 47 of the Offences Against the State Act 1939is invalid having regard to the provisions of the Constitution.

5

2. That the D.P.P. is not vested in law with the right to exercise all or any of the powers declared by Section 47 of the Offences Against the State Act 1939to be exercisable by the Attorney General and that the exercise of any such powers by the D.P.P. was ultra vires.

6

3. Alternatively (in relation to a prosecution that the Plaintiff then faced) that there were no or no sufficient and reasonable grounds upon which the D.P.P. could properly certify that the ordinary courts were in his opinion Inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of the Plaintiff and that the sending of the Plaintiff to be charged and tried before the Special Criminal Court was an abuse of discretion by the D.P.P.

7

4. That the Constitution impliedly provides for procedures for the abrogation of the Plaintiff's right to a trial by Jury.

8

5. That the D.P.P. failed to provide or implement such proceduresand,

9

6. That the abrogation of a person's right to trial by Jury can only be made and determined by a Judge appointed pursuant to theConstitution.

10

The Statement of Claim sets out the details of the arrest of thePlaintiff, the certificate of the D.P.P. under Section 47(2) in relation to non-scheduled offences, trial before the Special Criminal Court and conviction and sentence. These are admitted by the Defendants in theirdefences.

11

At the trial, Counsel for the Plaintiff stated that he proposed to call the Plaintiff to give evidence that he was not a member of or associated with any illegal organisation. Counsel for the Defendants contended that such evidence was irrelevant and, if given, they would not be calling evidence to controvert it. Accordingly, it was agreed that the case would proceed as if such evidence had been given and was notcontroverted.

12

The relevant provisions of the Constitution are contained in Article 38 which provides as follows:-

13

1. No person shall be tried on any criminal charge save in duecourseof law.

14

2 3(1) Special Courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary Courts are inadequate to secure the effective administration of justice, and the preservation of public peace andorder.

15

(2) The constitution, powers, jurisdiction and procedure of suchspecialCourts shall be prescribed by law.

16

5. Save in the case of the trial of offences under Section 2, Section 3 or Section 4 of this Article no person shall be tried on any criminal charge without a Jury.

17

6. The provisions of Articles 34 and 35 of this Constitution shall not apply to any court or tribunal set up under Section 3 or Section 4 of this Article.

18

Section 47 of the Offences Against the State Act 1939provides as follows:-

19

(1) Whenever it is intended to charge a person with a scheduled offence, the Attorney General may if he so thinks proper, direct that such person shall, in lieu of being charged with such offence before a Justice of the District Court, be brought before a Special Criminal Court and there charged with such offence and upon such direction being so given, such person shall be brought before a Special Criminal Court and shall be charged before that Court with such offence and shall be tried by such Court on such charge.

20

(2) Whenever it is intended to charge a person with an offence which is not a scheduled offence and the Attorney General certifies that the ordinary Courts are, in his opinion, inadequate to secure theeffective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, the foregoing sub-section of this Section shall apply and have effect as if the offence with which such person is so intended to be charged were a scheduled offence.

21

Sub-section (3) is not relevant.

22

The Prosecution of Offences Act 1974establishes the office of the D.P.P. (Section 2(1)) and provides that he should be a Civil Servant (Section 2(4))

23

Section 3(1) of that Act provides as follows:-

"Subject to the provisions of this Act, the Director shall perform all the functions capable of being performed in relation to criminal matters and in relation to election petitions and referendum petitions by the Attorney General immediately before the commencement of this Section and references to the Attorney General in any statute or statutory instrument in force immediately before such commencement shall be construed accordingly."

24

The Plaintiff's claim was based on the following arguments:-

25

1. While the Plaintiff's right to a jury trial is not absolute, it is a positive right and there has to be a decisive process to takeit away. This can only be done according to the tenor of the Constitution and therefore must be done by a Judge and not by a CivilServant.

26

2. The D.P.P. is a civil Servant by contrast with the Attorney General who is a constitutional officer. Gavan Duffy J. held in re MacCurtain ( 1941 I.R. 83) that Section 46(2) of the Offences Against the State Act 1939was constitutional but his reasoning was based on the fact that it was the Attorney General as principal legal officer of the State who certified. The Plaintiff argues that the substitution of the D.P.P. for the Attorney General is unconstitutional. Their status is not similar. Also the D.P.P. is not entitled to make a decision affecting the constitutional rights of citizens under Article 40(3) (as distinct from the right to a Jury trial).

27

3. A certificate of the D.P.P. sending the Plaintiff forward for trial directly to the Special Criminal Court deprives the Plaintiff of the meaningful preliminary procedures prior to his trial which would be available if he was being brought before the ordinary courts. The right to a fair trial pre-supposes fair procedures and these must include fair preliminary procedures. Section 47 of theOffences Against the State Act 1939does not make any provision for any meaningful preliminaryprocedures.

28

4. The Plaintiff is not in a position to investigate the grounds on which the D.P.P. issued the Certificate. Once the Plaintiff has raised the issue of whether there were any or any adequate or reasonable grounds for the issue of the certificate, the Court is entitled to and should investigate the grounds on which the D.P.P. issued the certificate. It was suggested that this should be akin, to the supervision exercised by the Courts over a claim of privilege by the Government. The Plaintiff did not require that the grounds should be revealed in open Court but did say there should be Judicialsupervision.

29

In their separate defences the Defendants traversed the facts not admitted and in addition pleaded that the Plaintiff disclosed no cause of action.

30

The certificate of the Attorney General certifying that the ordinary Courts are inadequate under Section 48(2) of the Offences Against the State Act 1939has been considered by the Supreme Court in re MacCurtain ( 1941I.R. 83). Sullivan C.J., delivering the Judgment of the Supreme Court (at page 89) referred to the text of Article 38 Clause 3 in the Constitution and continued as follows:-"Clause 3 is a specific Article dealing with the establishment of Special Courts and in face of that Article no question can arise as to the delegation of the legislative and judicial powers dealt with by other Articles of the Constitution. Clause 3 paragraph 1 expressly provides that the question whether the ordinary Courts are inadequate to secure the effective administration of Justice and the preservation of public peace and order is to be determined in the manner provided by the Act by which the special courts are established. It was left to the legislature to choose the particular method by which that question should be...

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