Kiely v Judge Ní Chondúin
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett |
| Judgment Date | 27 November 2008 |
| Neutral Citation | [2008] IEHC 370 |
| Court | High Court |
| Date | 27 November 2008 |
[2008] IEHC 370
THE HIGH COURT
BETWEEN
AND
AND
DCR O.22 r1
DCR O.22 r2
WALSH CRIMINAL PROCEDURE 1ED 2002 548-9
STEPHENS v GOVERNOR OF CASTLEREA PRISON UNREP HIGH FINLAY-GEOGHEGAN 20.9.2002 2002/26/6806
AG, STATE v JUDGE ROE 1951 IR 172
AG, STATE v JUDGE FAWSITT 1955 IR 39
DCR O.22
CRIMINAL LAW
Warrant
Arrest warrant - Failure to appear - Charges of assault - Whether jurisdiction to issue warrant - Whether obligation to apply fair procedures and use other means of getting person to appear prior to issuing warrant - Jurisdiction of District Judge - Whether jurisdiction confined to instances envisaged in rules - Whether wider inherent jurisdiction - Previous failure to appear - Whether issuing of warrant appropriate step - Stephens v Governor of Castlerea Prison [2002] IEHC 169 (Unrep, Finlay Geogeghan J, 20/9/2002), State (AG) v Judge Roe [1951] IR 172 and The State (AG) v Judge Fawsitt [1955] IR 39 considered - District Court Rules 1997 (SI 93/1997), O 22 - Application refused (2006/1475JR- Sheehan J - 27/11/2008) [2008] IEHC 370
Kiely v Judge Ní Chondúin
Facts: a warrant had been issued for the arrest of the applicant by the respondent when she failed to appear in the District Court to face various charges. Previously, due to an earlier breach, bail had been revoked and she had been re-arrested and remanded in custody. Due to an administrative failure, she had been granted temporary release as the prison had not been aware of the remand order and believed her to be in custody solely in respect of a previous sentence which she was then serving. She sought an order of certiorari by way of application for judicial review of the warrant issued for her arrest. She contended that the respondent had no jurisdiction to issue the warrant and that, even if she did have jurisdiction, the obligation to apply fair procedures required her to use other means of getting the applicant before the District Court before resorting to the issuing of a warrant for her arrest.
Held by Mr Justice Sheehan in refusing the application for the reliefs sought that the jurisdiction of the District Court to issue a warrant was not confined to the circumstances envisaged by Order 22 of the District Court Rules 1997 and it had a wider inherent jurisdiction to issue a warrant for the arrest of an accused person in certain other circumstances.
That where a statute conferred upon a court a substantive jurisdiction to try a person charged with a criminal offence it impliedly conferred the adjective or ancillary jurisdiction necessary to compel that person to attend court to take his trial.
That, where the applicant had failed to attend court on the occasion when her case had been first listed for trial, the issuing of the warrant for her arrest was the appropriate step for the respondent to take.
Reporter: P.C.
Mr. Justice GarrettSheehan delivered on the 27th day of November, 2008
1. The applicant in this case seeks an order of certiorari in respect of a warrant issued for her arrest on the 4 th December, 2006, when she failed to appear in the Dublin Metropolitan District Court to face charges of assault and breach of the peace.
2. The applicant whose bail on these charges had been revoked because of an earlier breach had subsequently been rearrested and remanded in custody from time to time.
3. Due to an administrative failure the applicant was granted temporary release on the 28 th November 2006, despite there being a custody remand order in place for her. It appears from the documentation filed before this Court that the prison authorities were not aware of this remand order, and believed the accused to be incustody solely in respect of a three months prison sentence which she was then serving.
4. The salient facts are set out in the following chronology:-
The applicant is arrested and charged with offences of assault and breach of the peace, and detained in police custody pending her appearance in the Dublin District Court on the following Monday.
The applicant is brought before the District court where she is remanded in custody for one week. A solicitor is appointed by the court to represent her under the Free Legal Aid Scheme.
The applicant is released on bail and remanded to the 11 th September, 2006.
The applicant pleads not guilty to the charges and is remanded on bail to the 27 th September, 2006, for her trial on the said charges.
The applicant fails to appear. A warrant is issued for her arrest.
The applicant is arrested on foot of the warrant issued on the 27 th September, 2006, and remanded in custody to the 3 rd November, 2006.
A new hearing date is fixed for the 27 th November, 2006. The applicant is remanded in custody to that date.
The applicant is not produced by the prison service in accordance with the order of the District Court on the 3 rd November, 2006, and the District Court issues a warrant for the production of the applicant returnable for the 4 th December, 2006.
The applicant is granted temporary release by the prison authorities, who are unaware of the District Court orders of the 3 rd November, 2006, and 27 th November, 2006.
The applicant does not attend court, and the respondent judge issues a warrant for her arrest.
5. Both the applicant and the notice party agree that the issue before this Court is primarily one of jurisdiction.
6. On behalf of the applicant, Mr. Dwyer submits in the first instance that the learned judge had no jurisdiction to issue the warrant. He further argued that even if the learned judge had jurisdiction to issue the warrant, the obligation to apply fair procedures in the particular circumstances of this case, required the respondent to use other means of getting the accused back before the District Court, before resorting to the issuing of a warrant for her arrest.
7. In support of his argument that the District Judge had no jurisdiction to issue a warrant for the arrest of the applicant, he relied on rules 1 and 2 of O. 22 of the District Court Rules 1997, as well as an extract from Professor Dermot Walsh's...
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