National Authority for Safety and Health v O'Brien

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mrs. Justice McGuinness
• Judgment Date: 01 January 1997
• Neutral Citation: [1996] IEHC 40
• Docket Number: [1996 No. 1025 SS]
• Date: 01 January 1997

[1996] IEHC 40

THE HIGH COURT

NATIONAL AUTHORITY OCCUPTIONAL SAFETY V. O'BRIEN CRANE HIRE LTD

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL

PROVISIONS) ACT, 1961

BETWEEN

THE NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY AND HEALTH

PROSECUTOR

AND

GABRIEL O'BRIEN CRANE HIRE LTD.

ACCUSED

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

SAFETY HEALTH & WELFARE AT WORK ACT 1989 PART III

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S51

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S48

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S49

COURTS (NO 3) ACT 1986 S1(4)

PETTY SESSIONS (IRL) 1851 S10

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S28(1)

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S51(3)

DPP V NOLAN 1990 2 IR 526

CONSTITUTION ART 38.1

COURTS (NO 3) ACT 1986 S1(1)

MCDONNELL, AG V HIGGINS 1964 IR 374

KEATING V GOV OF MOUNTJOY PRISON 1986 IR 286

DPP V GILL 1980 IR 263

LYNCH, STATE V BALLAGH 1986 IR 203

COURTS (NO 3) ACT 1986 S1(2)

COURTS (NO 3) ACT 1986 S1(8)

DPP V NOLAN & DPP V ROCHE & KELLY 1990 2 IR 526

FINNEGAN V CLIFFORD & DPP UNREP CARNEY 10.11.95 1996/4/1059

COURTS OF JUSTICE ACT 1924 S88(3)

DCR

DPP V HOWARD UNREP BARRON 27.11.89 1989/5/1264

DPP V FOX UNREP MCGUINNESS 7.11.96

CLARKE, STATE V ROCHE 1987 ILRM 309

COURTS (NO 3) ACT 1986 S1(7)(a)

Synopsis:

PRACTICE AND PROCEDURE

Case stated from District Court - prosecution of summary offences under Safety, Health and Welfare at Work Act, 1989 - whether summons procedure provided for in Courts (No.3) Act, 1986 avail able - Held: Procedure available - (High Court: McGuinness J. - 10/12/1996) [1997] 1 IR 543

|National Authority for Occupational Safety & Health v. Gabriel O'Brien Crane Hire Ltd.|

1 Judgment of Mrs. Justice McGuinness delivered on the 10th day of December 1996

2 These proceedings come before this Court by way of a Consultative Case Stated by District Judge Timothy Crowley pursuant to the provisions of Section 52 of the Courts (Supplemental Provisions) Act, 1961.

3 The Case Stated arises out of prosecutions by the Prosecutor pursuant to the Safety, Health and Welfare at Work Act, 1989.

4 The Prosecutor is a statutory authority established under Part III of the Safety, Health and Welfare at Work Act, 1989(which I shall refer to as "the 1989 Act"). Under Section 51 of this Act, the Authority is given power to prosecute summary offences under the Act. Offences and penalties are set out under various sections of the 1989 Act in particular Section 48 and 49. Ther present prosecutions arise out of an incident which occurred on the 24th February, 1995 at a building site at Avoca Park, Avoca Avenue, Blackrock in the County of Dublin which resulted in the death of one Raymond Parkinson, an employee of Seán Quinn Group Ltd.

5 As set out by the District Judge in the Case Stated, in Prosecutor on the 2nd day of November 1995 applied pursuant to Section 1(4) of the Courts (No.3) Act, 1986to the appropriate office of the District Court in the Dublin Metropolitan district for the issue of six summonses alleging offences committed by the Accused contrary to the provisions of the 1989 Act. The said summonses were issued by Muiris Ó Raghnaill, an appropriate District Court clerk, at the District Court Office, Áras Uí Dhálaigh, Dublin. The summonses, which are in the normal form and fully recite the statuory offences alleged, are exhibited with the Case Stated. The summonses were correctly served both by registered post and by personal service on the following day, 3rd November, 1995. The summonses were made returnable to the District Court sitting at District Court No. 31 for the 11th December, 1995. On that day, the District Judges states, the parties appeared before the Court and the proceedings were adjourned until 1st April, 1996, which was the date fixed for the hearing of the proceedings. It appears, although this is not strictly speaking stated by the District Judges, that all parties were aware that the 11th December, 1995 was in the nature of a mere return date, at which a date of hearing would be set and that no substantive hearing would take place on that day.

6 The proceeding came on for hearing before the District Judge on the 1st April, 1996. At the opening of the proceedings, Counsel for the Accused raised a preliminary point on jurisdiction, submitting that the Court had no jurisdiction to hear the matter because no complaint had been made to the District Court pursuant to the provisions of the Petty Sessions (Ireland) Act, 1851 (as amended). Counsel submitted that under the provisions of the 1989 Act, for reasons which will be set out in the course of this judgment, it was not open to the Prosecutor to use the summons procedure provided in the Courts (No.3) Act, 1986, and that all prosecutions under the 1989 Act had to be effected through the "complaint" procedure set out in the Petty Sections ( Ireland) Act,1851 (as amended). The District Judge fully sets out the submissions on this point made by Counsel for the Prosecutor and Counsel for the Accused. As these in summary form reflect the submissions made by Counsel in this Court, I shall repeat them here. Counsel for the Accused submitted:-

7 (a) The provisions of the Safety, Health and Welfare at Work Act, 1989make express reference to summary criminal proceedings under that statute being commenced by way of "complaint".

8 (b) The Safety, Health and Welfare at Work Act, 1989makes no reference to any provision of the Courts (No.3) Act, 1986.

9 (c) There are no regulations made under Section 28(1) of the Safety, Health and Welfare Act, 1989which contain a reference to any provisions of the Courts (No.3) Act, 1986.

10 (d) Section 51(3) of the Safety, Health and Welfare at Work Act, 1989makes express reference to the jurisdiction of the Petty Sessions (Ireland) Act, 1851 by providing for an extension of the statutory time within which complaint instituting summary criminal proceedings may be made.

11 (e) An application to the appropriate District Court office for the issue of a summons pursuant to the Courts (No.3) Act, 1986does not constitute the making of a complaint to the District Court pursuant to the Petty Sessions (Ireland) Act, 1851.

12 (f) The word "complaint" used by the Oireachtas in enacting the Safety. Health and Welfare at Work Act. 1989refers to a complaint pursuant to the Petty Sessions (Ireland) Act, 1851 having regard to:

13 (i) the fact that the Safety, Health the Welfare at Work Act, 1989post-dates both the Petty Sessions (Ireland) Act, 1851 and the Courts (No.3) Act, 1986,

14 (ii) the fact that the statutory power to institute criminal proceedings contained in Section 51(3) of the Safety, Health and Welfare at Work Act, 1989must be construed together with the word "complaint" contained in Section 52 of the same Act,

15 (iii) the decision of the Supreme Court in DPP -v- Nolan, [1990] 2 I.R, 526,

16 (iv) the constitutional right to be tried on a criminal charge in due course of law specified in Article 38.1 of the Consitution, and

17 (v) the duty to interpret a penal statute strictly.

18 Counsel for the Prosecutor submitted as follows:-

19 (a) The six criminal charges alleged in these proceedings were summary offences fit to be tried in the District Court.

20 (b) The National Authority for Occupational Safety and Health had applied for the issue for six summonses pursuant to the Courts (No. 3) Act, 1986within the statutory time limit provided for by Section 51(3) of the Safety, Health and Welfare at Work Act, 1989.

21 (c) There was no statutory provision barring the National Authority for Occupational Safety and Health from applying to the appropriate district Court office for the issue of a summons pursuant to the Courts (No.3) Act, 1986alleging the commission of a criminal offence contrary to the Safety, Health and Welfare at Work Act, 1989.

22 (d) The Prosecutor was entitled to use the statutory mechanism for the issue of the summonses which were issued in this case and Section 1(1) and Section 1(4) of the Courts (No.3) Act, 1986clearly entitled the Prosecutor to do so.

23 (e) The application of the Petty Sessions (Ireland) Act, 1851 was excluded by virtue of the provisions of Section 51(3) of the Safety, Health and Welfare at Work Act, 1989.

24 (f) The word "complaint" used in Section 52 of the Safety. Health and Welfare at Work Act, 1989does not refer to complaint made to the District Court pursuant to the Petty Sessions (Ireland) Act, 1851 as amended.

25 (g) The word "complaint" used in Section 52 of the Safety, Health and Welfare at Work Act, 1989does not exclude an application to the appropriate District Court office for the issue of a summons pursuant to the Courts (No.3) Act, 1986or require the Prosecutor to use the 1851 Act procedure.

26 (h) The use of the word "complaint" in the 1989 Act is neither indicative nor determinative of the way in which proceedings for a prosecution under the Act are to be instituted as all District Court proceedings in criminal matters are heard on foot of complaints made to the District Judge whether made in order to ground the issue of a summons under the 1851 Act procedure or whether after issue of a summons under the Court (No.3) Act, 1986.

27 (i) Notwithstanding the above and irrespective of the same, the Accused had appeared in the District Court in answer to the summons in December 1995 without protest as to jurisdiction and that, accordingly, having regard to the decisions of the Supreme Court in the cases of Attorney General (McDonald) -v- Higgins[1964] I.R., Keating -v- The Governor of Mountjoy Prison, [1986] I.R., DPP -v- Gill, [1981] I.L.R.M. and The State (Lynch) -v- Ballagh, [1986] I.R. that the Court had jurisdiction to proceed by virtue of such appearance.

28 By inquiry, the District Judge established that the Prosecutor bad indeed used the administrative procedure under...