Kelly and Another v Ryan

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 30 July 2015
• Neutral Citation: [2015] IESC 69
• Court: Supreme Court
• Docket Number: [Appeal No: 402/2013],[S.C. No. 402 of 2013]
• Date: 30 July 2015

[2015] IESC 69

THE SUPREME COURT

Mr. Justice Clarke

Denham C.J.

Hardiman J.

O'Donnell J.

Clarke J.

Dunne J.

[Appeal No: 402/2013]

Between/

Mary Kelly and Declan Buckley

Applicants/Appellants

and

District Judge Ann Ryan

Respondent

and

Patrick Halpin

Notice Party/Respondent

and

Director of Public Prosecutions

Amicus Curiae

Criminal procedure – Private prosecutions – Theft and fraud offences – Appellants seeking to quash decision of respondent to issue summonses – Whether proceedings involved an abuse of process

Facts: The appellants, Ms Kelly and Mr Buckley, were officials of the Irish Bank Resolution Corporation Ltd (IBRC). In that context they had dealings with the notice party/respondent, Mr Halpin. Mr Halpin was aggrieved by the way he had been treated in the course of those dealings and took the view that at least some element of the way in which Ms Kelly and/or Mr Buckley had dealt with him amounted to a criminal offence on their part. He swore an information before the respondent, District Judge Ryan, who, in turn, made an order providing for the issuing of summonses requiring the attendance of Ms Kelly and Mr Buckley before the District Court to answer criminal charges under the Criminal Justice (Theft and Fraud Offences) Act 2001. Ms Kelly and Mr Buckley brought judicial review proceedings in the High Court seeking to quash the March 2012 decision of the respondent made under s. 10 of the Petty Sessions (Ireland) Act 1851 and O.15, r.1(3) of the Rules of the District Court 1997 to issue the summonses in question. They also sought consequential relief including a stay. The High Court, in July 2013, dismissed the application brought. Ms Kelly and Mr Buckley appealed to the Supreme Court against that finding. Mr Halpin argued in favour of upholding the decision of the High Court. The amicus curiae, the DPP, made submissions concerned with the proper interpretation of the law on private prosecutions in light of recent legislative developments. There were three issues before the High Court and the Supreme Court on appeal. The first issue arose from a contention made by Ms Kelly and Mr Buckley that an indirect consequence of a range of recent legislative developments was to create a situation whereby the private prosecution of criminal offences is no longer legally possible. The second argument put forward was that the sworn information and the summonses failed to deal with some important elements or ingredients of that offence so that the summonses were not validly issued. The third ground centred on an allegation of abuse of process; in the light of the facts surrounding the circumstances in which the private prosecutions were commenced and progressed, it was argued that, having regard to the limited remaining purpose of private prosecution, the prosecutions could not have been bona fide commenced for the purposes of that limited function.

Held by Clarke J that Ms Kelly and Mr Buckley were entitled to have the summonses quashed on the basis that there was no evidence or material before the respondent which would have permitted a sustainable conclusion to be reached that it was arguable that each essential element of the alleged offences was present and, thus, to justify issuing a summons in these cases. Clarke J"s reason for coming to that conclusion was that there was no evidence from which it could be concluded that there was an arguable case that either or both of the appellants had themselves been guilty of a deception and inducement which was intended to cause a loss. Clarke J was satisfied that the uncontroverted evidence led only to the inference that Mr Halpin was not motivated by a genuine desire to invoke the limited role of a private individual in the prosecution of criminal offences, but rather was motivated by a desire to secure, by whatever means possible, the attendance of Ms Kelly and Mr Buckley as accused persons before a criminal court. On that basis, Clarke J was satisfied that the commencement of the proceedings was an abuse of process.

Clarke J held that, in the absence of clear wording, it could not be implied or inferred that the common informer system of private criminal prosecution had been abolished. However, Clarke J was satisfied that there was a fundamental flaw in the issuing of the summonses and that the proceedings before the District Court involved an abuse of process. For those reasons Clarke J allowed the appeal and proposed that an order be made quashing the summonses.

Appeal allowed.

Judgment of Mr. Justice Clarke delivered the 30th July, 2015.

1. Introduction

1.1 One of the more significant evolutions in criminal practice over the last number of years has been the change in both the law and the practice in relation to private criminal prosecutions. In the past, many criminal prosecutions were brought as private prosecutions even if the prosecutor was acting as a public official such as a member of An Garda Síochána. It will be necessary to refer briefly in due course to the somewhat different evolution of the private prosecution system within the respective criminal laws of Ireland and the United Kingdom. However, it can hardly be denied that the trend has been towards the replacement of the private prosecution with a prosecution formally brought by a public official. The question which arises on this appeal concerns the legal position today, in this jurisdiction, in relation to private prosecutions.

1.2 The applicants/appellants ('Ms. Kelly' and 'Mr. Buckley' respectively) were officials of the Irish Bank Resolution Corporation Limited ('IBRC'). In that context they had dealings with the notice party/respondent ('Mr. Halpin'). Mr. Halpin was aggrieved by the way he had been treated in the course of those dealings and, it would appear, took the view that at least some element of the way in which Ms. Kelly and/or Mr. Buckley had dealt with him amounted to a criminal offence on their part. He swore an information before the respondent District Judge who, in turn, made an order providing for the issuing of summonses requiring the attendance of respectively Ms. Kelly and Mr. Buckley before the District Court to answer criminal charges under the Criminal Justice (Theft and Fraud Offences) Act 2001 ('the 2001 Act').

1.3 Ms. Kelly and Mr. Buckley brought judicial review proceedings in the High Court seeking to quash the decision of the respondent District Judge (which decision was made on the 5th March, 2012, under s.10 of the Petty Sessions (Ireland) Act 1851 ('the 1851 Act') and O.15, r.1(3) of the Rules of the District Court 1997) to issue the summonses in question. They also sought consequential relief including a stay.

1.4 The High Court (Hogan J.) delivered a judgment in the judicial review proceedings on the 9th July, 2013, and dismissed the application brought. Ms. Kelly and Mr. Buckley have appealed to this Court against that finding. Mr. Halpin argued in favour of upholding the decision of the High Court. The amicus curiae ('the D.P.P.') made certain submissions which were not directed to the merits of this case as such but rather were concerned with the proper interpretation of the law on private prosecutions generally in the light of recent legislative developments. Against that general background it is appropriate to start by referring to the three discrete issues which were before both the High Court and this Court on appeal.

2. The Issues

2.1 The most far reaching issue arose from a contention made on behalf of Ms. Kelly and Mr. Buckley to the effect that an indirect consequence of a range of recent legislative developments was to create a situation whereby the private prosecution of criminal offences is no longer legally possible. It will be necessary to look in more detail at the legislative interventions concerned in due course. It is, however, common case that no express provision is to be found in that legislation terminating the private prosecution of criminal offences. Equally, it cannot be doubted but that the relevant legislation has significantly circumscribed such prosecutions. The real issue between the parties is as to whether, as is argued on behalf of Ms. Kelly and Mr. Buckley, the extent to which legislation has circumscribed the private prosecution is so great that such prosecutions can no longer properly be said to continue to exist.

2.2 The second issue is more narrowly focused and concerns the information sworn in this case and the summonses issued as a result of the decision of the respondent District Judge based on that sworn information. As will appear from the facts, the summons in each case alleged a breach of s.6 of the 2001 Act. In substance, the argument put forward was that the sworn information and the summonses failed to deal with some important elements or ingredients of that offence so that, it was argued, the summonses were not validly issued.

2.3 The third ground centred on an allegation of abuse of process. In a sense, there was a connection between the argument which arose under that heading and the question of the extent to which the legislation to which I have referred may have limited the scope of the private prosecution or, indeed, as the primary argument advanced on behalf of Ms. Kelly and Mr. Buckley suggests, whether it abolished the jurisdiction entirely. Counsel for Ms. Kelly and Mr. Buckley argued, however, that even if he was wrong in suggesting that the proper interpretation of the law in the light of those legislative developments was that private prosecution no longer continued to exist, it remained the case, it was suggested, that the purpose of private prosecution had, on any view, become extremely limited. In the light of the facts surrounding the circumstances in which these private prosecutions were commenced and...