Shannon v McGuinness

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 01 January 1999
• Neutral Citation: [1997] IEHC 54
• Court: High Court
• Docket Number: [1996 No. 73 J.R.]
• Date: 01 January 1999

SHANNON v. MCGUINNESS & DPP

JUDICIAL REVIEW

BETWEEN

GWENDOLINE SHANNON AND ELIZABETHSHANNON

APPLICANTS

AND

DISTRICT JUDGE OLIVER MC GUINNESS AND THE DIRECTOR OFPUBLIC PROSECUTIONS

RESPONDENTS

AND

BETWEEN

JOHN SHANNON

APPLICANT

AND

DISTRICT JUDGE OLIVER MC GUINNESS AND GWENDOLINE SHANNONAND ELIZABETH SHANNON

RESPONDENTS

[1997] IEHC 54

No. 73 J.R./1996

No. 384 J.R./1996

THE HIGH COURT

Synopsis:

Judicial Review

Assault; DPP decided not to continue with prosecution; proceedings dismissed by DJ; whether in excess of jurisdiction; locus standi Held: Application dismissed; lack of locus standi; DJ acted within jurisdiction; DPP decision unreviewable in absence of improper motive / policy (High Court: Kelly J 20/03/1997)

Shannon v. DJ McGuinness and DPP - [1999] 3 IR 274

Citations:

CAHILL V SUTTON 1980 IR 269

LYNCH, STATE V COONEY 1982 IR 337

PROSECUTION OF OFFENCES ACT 1974

DCR r66

DCR r64(3)

CARPENTER V KIRBY & ANOR 1990 ILRM 764

MCCORMACK, STATE V CURRAN 1987 ILRM 225

H V DPP 1994 2 IR 589

LANDERS V GARDA SIOCHANA COMPLAINTS BOARD UNREP KELLY 7.3.97

1 Judgment of Mr. Justice Kellydelivered on the 20th day of March 1997

2 District Judge Oliver McGuinness presided over a sitting of the District Court at Easkey, County Sligo, on the 4th September, 1995. He had listed before him four summonses alleging criminal offences. Two of them named the Director of PublicProsecutions as the complainant and John Shannon was the defendant in both of them. One of those summonses alleged that John Shannon assaulted Gwen Shannon on the 8th October, 1994. The other alleged that John Shannon unlawfully assaulted Elizabeth Shannon on the 8th October, 1994 thereby occasioning her actual bodily harm. Gwen and Elizabeth Shannon are sisters and their brother is John Shannon.

3 The other two summonses named John Shannon as the complainant and Gwendoline Shannon and Elizabeth Shannon as defendants. These summonses alleged common assault against Gwendoline Shannon and Elizabeth Shannon on the 8th October, 1994.

4 The proceedings at the suit of the Director of Public Prosecutions against John Shannon were listed first. The Director of Public Prosecutions was represented by Inspector Jerry Henry of Castlebar Garda Station. Prior to the hearing, he had been informed by the Director of Public Prosecutions that the charges which had been preferred against John Shannon were to be withdrawn. When the Director of PublicProsecutions" cases against John Shannon were called, Inspector Henry informed the District Judge that, on the instructions of the Director, the charges against John Shannon were being withdrawn by the State. This brought about an objection from the then Solicitor representing Gwendoline and Elizabeth Shannon. He unsuccessfully sought to have those matters adjourned by the District Judge. No reasons were given to the District Court as to why the Director of Public Prosecutions was not proceeding with the cases and the Solicitor for the Shannon sisters protested at this. The District Judge pointed out to that Solicitor that he (the Judge) had jurisdiction to dismiss the proceedings and, indeed, the District Judge has indicated to this Court that he was satisfied that he had no alternative but to dismissthem.

5 The Solicitor representing John Shannon told the District Judge that his common informer proceedings were next on the list but they had been instituted for thepurpose of putting all matters before the Court. In view of the fact that the State had indicated that it was not going to proceed with the prosecutions against John Shannon, he had no material interest in proceeding with his private prosecutions against the Shannon sisters. The District Judge then dismissed all four summonses.

THE APPLICATION FOR JUDICIAL REVIEW

6 On the 26th February, 1996, Elizabeth and Gwendoline Shannon applied to Laffoy J. for leave to institute judicial review proceedings against District Judge McGuinness and the Director of Public Prosecutions arising from the dismissal of the Director of Public Prosecutions"proceedings against John Shannon. Leave was sought to apply for four Orders. They were:

7 (a) Certiorari of the Orders of Judge McGuinness dismissing the Director of Public Prosecutions" proceedings against JohnShannon.

8 (b) Certiorari of the decision of the Director of Public Prosecutions not to proceed with the prosecutions against JohnShannon.

9 (c) A Declaration that the effect of the Dismissal Orders made by District Judge McGuinness in the proceedings brought by the Director of Public Prosecutions against John Shannon was not such as to preclude further prosecution of the offences in question.

10 (d) Mandamus to compel the Director of Public Prosecutions to furnish to the Shannon sisters all documentation concerning the prosecutions and upon which he based his decision not to proceed.

11 Laffoy J. granted leave to apply for just one of the four reliefs sought. It is that set out at (c) above. She gave leave to apply for that declaration on two grounds. They were set forth at paragraph (e)(i) and (ii) of the statement grounding the application and read asfollows:-

12 i "(i) There is an error of law on the face of the said Orders in that the first named Respondent's Orders to dismiss the said prosecutions was (sic) in excess of jurisdiction and otherwise than in accordance with law.

13 (ii) The first named Respondent's Order is ambiguous and/or void for uncertainty."

14 In applying to Laffoy J., no attempt was made by the Shannon sisters to make John Shannon either a Respondent or Notice Party to their application. He clearly was a person who might be directly affected by the outcome of such proceedings. He became aware of them and on the 2nd December, 1996, I made an Order joining him as a Notice Party to the Shannon sisters" judicial review proceedings.

15 On the 6th December, 1996, John Shannon obtained leave from me to seek judicial review of the Orders made by District Judge McGuinness in his private prosecutions against the Shannon sisters. He seeks an Order of Certiorari in respect of the two Orders made by District Judge McGuinness which dismissed his private prosecutions against theShannon sisters. Consistent with the attitude which he adopted in the District Court, he has no desire to prosecute his claim in these proceedings unless his sisters succeed in their judicial reviewapplication.

16 I therefore proceed to consider the Shannon sisters"application.

LOCUS STANDI

17 The first point which is taken against Gwendoline and Elizabeth Shannon is that they have no entitlement to prosecute these proceedings at all. It is contended that they do not have the necessary locusstandi to contest the decision arrived at by the District Judge. The basis for this submission is quite straight-forward. It is argued that the Shannon sisters are seeking Orders from this Court concerning proceedings in the District Court to which they were not party. The parties in the District Court proceedings were the Director of Public Prosecutions and John Shannon. The role of the Shannon sisters was that of witnesses called on behalf of the Director of Public Prosecutions. True it is that they were the allegedly injured parties and the persons who had made the complaints which brought about the prosecution at the suit of the Director. But does that entitle them to seek to impugn the Order made in the District Court?

18 Mr. Grogan, on behalf of the sisters, was unable to cite any authority which was precisely supportive of his entitlement to move this Court for the reliefs sought. Rather, he relied upon statements as to the general law on locus standi by reference to Cahill -v-Sutton, [1980] I.R. 269 and State (Lynch) -v-Cooney, [1982] I.R. 337.

19 Before considering these cases and their relevance to these proceedings, it should be pointed out that the two Orders which the sisters seek to impugn were made in respect of criminal prosecutions commenced by the Director of Public Prosecutions on foot of his statutory obligations imposed by the Prosecution of Offences Act, 1974.These werepublic prosecutions commenced at public expense and, if they were prosecuted to a successful conclusion, could have given rise to a penalty being imposed by the District Judge. If that penalty took the form of a monetary fine, the amount of the fine would be payable to the State. The only function which the Shannon sisters had in relation to these two prosecutions was to attend and give evidence when and if required before the District Judge. They were not party or privy to the proceedings in any other way. Given this situation, can it be said that their interest in the outcome of the proceedings was such as to entitle them to apply in this Court for judicial review of the decision given in the District Court?

20 The passage from Cahill -v- Sutton, which was relied on by Mr. Grogan, was that contained at page 286 where Henchy J.said:-

"The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the Court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person's interests have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of the statute."

21 Whilst that decision was of course dealing with the entitlement to challenge the constitutional validity of an Act, it is submitted that it provides a test appropriate for consideration in this case. In any event, it is the high water mark of the submission for locusstandi made by Mr. Grogan. If, therefore, one postulates this as the appropriate test to apply, one is immediately faced with having to answer a question as to what interests of the Shannon sisters have been "adversely affected or stand in...