Kelly and Another v District Judge Ann Ryan

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 09 July 2013
• Neutral Citation: [2013] IEHC 321
• Court: High Court
• Docket Number: [No. 436 J.R./2012]
• Date: 09 July 2013

Kelly & Buckley v District Judge Ryan

BETWEEN

MARY KELLY AND DECLAN BUCKLEY

APPLICANTS

AND

DISTRICT JUDGE ANN RYAN

RESPONDENT

AND

PATRICK HALPIN

NOTICE PARTY

[2013] IEHC 321

[No. 436 J.R./2012]

THE HIGH COURT

CRIMINAL LAW

Prosecution

District Court - Private prosecution - Common informer - Indictable offence - Statute - Interpretation - Abolition of preliminary examination procedure before District Court - Definition of "prosecutor" - Whether right of private prosecution for indictable offence abolished - Whether right of accused to be heard before information laid before District Court - Issuing of summons - Whether prosecution rendered abusive by private grievance - Whether decision to issue summons unreasonable - Attorney General (McDonnell) v Higgins [1964] IR 374; Cumann Lúthchleas Gael Teo v Judge Windle [1994] 1 IR 525; Minister for Industry and Commerce v Hales [1967] IR 50; R v The Bow Street Magistrates, ex parte Kazuhiro Sakashita (Unrep, Queen's Bench Division, 15/10/1996); Reg v Bow Street Metropolitan Stipendiary Magistrate, Ex parte South Coast Shipping Co. Ltd [1993] QB 645; R (Dacre) v City of Westminster Magistrates' Court [2008] EWHC 1667 (Admin), [2009] 1 WLR 2241; Stephenson v McWhirter (Unrep, Queen's Bench Division, 23/1/1989); TDI Metro Ltd v Delap (No 2) [2000] 4 IR 520; The State (Clarke) v Roche [1986] IR 619; The State (Ennis) v Farrell [1966] IR 107 and Wedick v Osmond & Son [1935] IR 820 considered - Ó Ceallaigh v An Bord Altranais [2000] 4 IR 54 distinguished - Criminal Justice (Administration) Act 1924 (No 44), s 9 - Criminal Procedure Act 1967 (No 12), ss 4(1) and 4A - Criminal Justice (Theft and Fraud) Offences Act 2001 (No 50), ss 6 and 53 - Constitution of Ireland 1937, Art. 30.3 - Relief refused (2012/436JR - Hogan J - 9/7/2013) [2013] IEHC 321

Kelly v Ryan

Facts: Patrick Halpin, the notice party, laid out information alleging offences of dishonesty as common informer before the District Court, on the basis of which summonses against the applicants were issued. The applicants were current and former employees of Irish Bank Resolution Corporation Ltd. (IBRC), whilst Mr Halpin was a director and shareholder of two companies, (Elektron Holdings Ltd. and Crossplan Investments Ltd.) which allegedly owed significant sums to IBRC. Mr Halpin alleged that the applicants falsely represented to him at a meeting that IBRC was prepared to continue a process engaged with Elektron Holdings involving co-operation and the prospect of some form of constructive engagement. He alleged this process deliberately concealed the information that the decision had already been taken to appoint a receiver to both companies.

The applicants denied the allegations, contending firstly that the right of private prosecution of such an offence kind had been abolished as a result of the Criminal Justice Act 1999, and secondly that they should have been heard before the summons had been issued.

The court held that the right of private prosecution had not been indirectly affected by the abolition of the preliminary examination procedure, as this would have required clear and express statutory language. It was also held that no right to be heard before a summons existed as it would introduce an administratively unworkable rule. On the question of whether the prosecution constituted an abuse of process by reason of improper motive, it was decided that Mr Halpin”s personal grievance against the applicants did not taint the proceedings. Finally, on the question of unreasonableness, it was held that judicial interference ought to be confined to exceptional circumstances, which had not been made out by the applicants.

The relief sought by the applicants was therefore refused.

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

PETTY SESSIONS (IRL) ACT 1851 S10(4)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53

ENNIS, STATE v FARRELL 1966 IR 107

CRIMINAL JUSTICE ACT 1999 S9(4)(A)

CRIMINAL PROCEDURE ACT 1967 S4

CRIMINAL JUSTICE ACT 1999 S8

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S9

CONSTITUTION ART 30.3

CRIMINAL PROCEDURE ACT 1967 S13

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL PROCEDURE ACT 1967 PART II

CRIMINAL PROCEDURE ACT 1967 PART III

CRIMINAL PROCEDURE ACT 1967 PART I(A)

MIN FOR INDUSTRY & COMMERCE v HALES 1967 IR 50

CRIMINAL LAW (AMDT) ACT 1990 S5(2)

WEDICK v OSMOND & SONS 1935 IR 820

COURTS OF JUSTICE ACT 1924 S9

CONSTITUTION ART 30.3

CUMANN LUTHCHLEAS GAEL TEORANTA v WINDLE 1994 1 IR 525

TDI METRO v DELAP (NO 2) 2000 4 IR 520 2001 1 ILRM 338

O CEALLAIGH v BORD ALTRANAIS 2000 4 IR 54 2000/2/648

AG (MCDONNELL) v HIGGINS 1964 IR 374

NURSES ACT 1985 S44

DCR O.38 r1

DCR O.38 r2

DACRE v CITY OF WESTMINSTER MAGISTRATES COURT 2009 1 AER 639 2009 1 WLR 2241 2009 1 CR APP R 77 2008 EWHC 1667 (ADMIN)

R v BOW STREET STIPENDIARY MAGISTRATE EX PARTE SOUTH COAST SHIPPING CO LTD 1993 1 AER 219 1993 2 WLR 621 1993 QB 645 1993 96 CR APP R 405

DUNNE JUDICIAL REVIEW OF CRIMINAL PROCEEDINGS 2012 PARA 4.34

CLARKE, STATE v ROCHE 1986 IR 619

COURTS (NO 3) ACT 1986 S1

STEPHENSON v MCWHITER THE TIMES 23.1.1989

R v BOW STREET MAGISTRATES EX PARTE SAKASHITA 1997 CLY 1374

Mr. Justice Hogan

1 To what extent, if at all, has the right of the private prosecutor to prosecute an indictable offence being affected by the wholescale amendment of the Criminal Procedure Act1967 by the Criminal Justice Act 1999, and the abolition of the traditional preliminary examination before the District Court? This is one of the many difficult questions raised in this application for judicial review. The issues arise in the following way.

2 The notice party, Mr. Patrick Halpin, swore two informations as common informer which were laid before the District Court. Acting on foot of these complaints made by Mr. Halpin, the District Court (District Judge Ryan) granted leave on 5^th March, 2012, to issue summonses against the applicants, Mary Kelly and Declan Buckley, alleging offences of dishonesty under s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 ("the 2001 Act"). The summonses were themselves issued pursuant to s. 10(4) of the Petty Sessions (Ireland) Act 1851 ("the 1851 Act"). This sub-section provides that:-

"Whenever information should be given to any justice that any persons has committed or is suspected to have committed any, treason, felony, misdemeanour or other offence within the limits of the jurisdiction of such justice for which such person shall be punishable either by indictment or upon a summary conviction … it should be lawful for such justice to receive such information or complaint and to proceed in respect of the same, subject to the following provisions …"

3 The applicants are, respectively, a current and former employee of Irish Bank Resolution Corporation Ltd. Mr. Halpin was a director and shareholder of two companies (Elektron Holdings Ltd. and Crossplan Investments Ltd.) which apparently owed significant sums to IBRC. The gist of Mr. Halpin's complaint to the District Court is that, immediately prior to the appointment of a receiver to these two companies on 17^th February, 2012, Mr. Halpin and his accountant were asked by the applicants to attend at short notice a meeting with them at IBRC offices. According to Mr. Halpin, he says that he was advised that the purpose of the meeting was to confirm that both creditor and debtors should co-operate in relation to the sale and/or the realisation of the assets of Merrion Hall on a consensual basis for the bank. He said that it was thereby envisaged that there would be some form of constructive engagement between the lender and the debtor. On foot of that, Mr. Halpin says that he and his accountant had such a meeting with Mr. Buckley and Ms. Kelly and that they left with the impression that the matter would be considered within the higher echelons of the bank and that the bank would, in turn, revert with further proposals.

4 The complaint then continues by alleging:-

2 "4. Unbeknown to myself and Mr. Murphy [Mr. Halpin's accountant] a decision had already been taken to appoint a receiver to both companies and the necessary paperwork had been prepared and was waiting for a final stamp at close of business…

5 Mr. Murphy wrote a letter of complaint to Mr. Buckley and received a reply showing clearly that both accused had known that a receiver was to be installed at the time of the meeting and had deliberately concealed this knowledge from us. Mr. Murphy cannot recover the professional fees due to him and he would not have participated in the meeting had he been aware of the situation and neither would I. Loss was thereby caused to us both…"

5 The complaint then goes on to state as against each respective applicant:-

"That you, on or about 17^th February, 2012, did at 2 Grand Parade, Dublin 6 … by deception with the intention of making a gain for yourself or another or of causing loss to another, falsely represented to Patrick Halpin a director of Elektron Holdings Ltd and Aiden Murphy, an accountant instructed on behalf of Elektron Holding Ltd, that your employer, the Irish Bank Resolution Ltd, was prepared to continue a process engaged in between it and Elektron Holdings Ltd whereby Elektron Holdings Ltd would be unable to trade normally, contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001."

It is important to state at this juncture that the applicants both vigorously contest and deny these charges.

6 Given the importance (and, to some degree, the novelty) of the issues at stake here, counsel for the Director, Mr. O'Malley, appeared asamicus curiae at my invitation and his submissions were of considerable assistance. At an earlier stage of the proceedings the applicant sought discovery of any contacts which had taken place between the private prosecutor...