O'Mahony v Melia

• Jurisdiction: Ireland
• Judgment Date: 01 January 1990
• Date: 01 January 1990
• Docket Number: [1989 Nos. 79 and 80 J.R.]
• Court: High Court

O'Mahony v. Melia

John O'Mahony and Linda O'Mahony

Applicants

and

Dermot Melia, The Director of Public Prosecutions and The Attorney General

Respondents

[1989 Nos. 79 and 80 J.R.]

High Court

Criminal law - Arrest - Bail - Power of peace commissioner to remand arrested person in custody or on bail - Whether peace commissioner exercising judicial power - Whether power of remand unconstitutionally vested in peace commissioner - Criminal Justice Act, 1951 (No. 2), s. 15 - Criminal Justice Act, 1984 (No. 22), s. 26 - Constitution of Ireland, 1937, Article 34, s. 1.

Constitution - Courts - Judicial power - Peace commissioner - Statutory power of peace commissioner to remand arrested person in custody - Whether power of remand a judicial power - Criminal Justice Act, 1951 (No. 2), s. 15 - Criminal Justice Act, 1984 (No. 22), s. 26 - Constitution of Ireland, 1937, Article 34, s. 1.

Article 34, s. 1 of the Constitution provides as follows:—

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution . . ."

Article 37, s. 1 provides:—

"Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution."

Section 15 of the Criminal Justice Act, 1951, as substituted by s. 26 of the Criminal Justice Act, 1984, provides, inter alia, as follows:—

"(1) A person arrested pursuant to a warrant shall on arrest be brought before a justice of the District Court having jurisdiction to deal with the offence concerned or, if a justice is not immediately available, before a peace commissioner in the district of such a justice as soon as practicable.

(2) A person arrested without warrant shall, on being charged with an offence, be brought before a justice of the District Court having jurisdiction to deal with the offence or, if a justice is not immediately available, before a peace commissioner in the district of such a justice as soon as practicable . . .

(4) If the person is brought before a peace commissioner, the commissioner, having heard the evidence offered, shall remand him, either in custody or on such bail as the commissioner thinks fit, and remit the case for hearing before a justice of the District Court having jurisdiction to deal with it."

The applicants were arrested by a member of the Garda Síochána and were brought before the first respondent, a peace commissioner, and charged with certain offences. When the arresting garda stated his opposition to the granting of bail, the first respondent remanded the applicants in custody to the next day's sitting of the District Court. On the following day the applicants were admitted to bail by the District Court and were released. On the applicants' application by way of judicial review for an order of certiorari quashing the orders of the first respondent remanding them in custody overnight and for a declaration that the provisions of s. 15, sub-ss. 1, 2 and 4 of the Act of 1951, as substituted by s. 26 of the Act of 1984, were invalid having regard to the provisions of the Constitution, on the grounds that they vested a judicial power in a person other than a judge, it was

Held by Keane J., in granting the application, 1, that the applicants had been detained on foot of orders purportedly made under legislation the validity of which they challeneged. Accordingly the applicants clearly had locus standi to challenge the legislation.

Cahill v. Sutton [1980] I.R. 269 considered.

2. That before deciding whether an arrested person should be remanded in custody or on bail a peace commissioner had to hear and consider the evidence and submissions of both parties, and this was a judicial rather than an administrative act.

3. That since the provisions of the Act of 1951 conferred on peace commissioners powers of a judicial nature in a criminal matter, they were invalid having regard to the provisions of the Constitution.

The State (Lynch) v. Ballagh [1986] I.R. 203 considered.

Cases mentioned in this report:—

Cahill v. Sutton [1980] I.R. 269.

Linford v. Fitzroy (1849) 13 Q.B. 240; 116 E.R. 1255; 18 L.J.M.C. 108; 13 J.P. 474.

The State (Lynch) v. Ballagh [1986] I.R. 203; [1987] I.L.R.M. 65.

The People (Director of Public Prosecutions) v. Walsh [1980] I.R. 294.

Judicial Review.

The facts have been set out in the headnote and appear in the judgment of Keane J. post. On the 27th February, 1989, the applicants applied to the High Court (Barron J.) and were granted leave to apply by way of judicial review for an order of certiorari quashing the orders made by the first respondent on the 13th February, 1989, remanding the applicants in custody overnight to the next day's sitting of the District Court, a declaration that the applicants were in unlawful custody between 9:00 p.m. on the 13th February, 1989, and 3:00 p.m. on the 14th February, 1989, and a declaration that the provisions of s. 15, sub-ss. 1, 2 and 4 of the Criminal Justice Act, 1951, as substituted by s. 26 of the Criminal Justice Act, 1984, which conferred on peace commissioners the power to remand arrested persons in custody or on bail were invalid having regard to the provisions of the Constitution.

The applicants' application, by notice of...