State (O'Flaherty) v O'Floinn

• Jurisdiction: Ireland
• Judgment Date: 01 January 1956
• Date: 01 January 1956
• Docket Number: [1954. No. 1 S.S.]
• Court: Supreme Court

High Court.

Supreme Court.

[1954. No. 1 S.S.]

The State (O'Flaherty) v. O'Floinn

THE STATE (at the Prosecution of KEVIN O'FLAHERTY)

and

CATHAL O'FLOINN, Justice of the District Court, and SEAN KAVANAGH,Governor of Mountjoy Prison, and In the Matter of the Courts of Justice Acts, 1924 to 1953

Practice - Procedure - District Court - Remand in custody - Remand for ten days - Period of remand greater than that authorised by statute - District Court rules purporting to authorise remand for fifteen days - Rule providing that rules to prevail where they conflict with statute - Whether remand in custody a matter of "practice and procedure" - Whether such rule ultra vires - Powers of rule-making authority - Dublin Police Act, 1842 (5 & 6Vict., c. 24), s. 64 - Indictable Offences (Ireland) Act, 1849 (12 & 13 Vict., c. 29), ss. 21 and 29 - Courts of Justice Act, 1924 (No. 10 of 1924), s. 91 -District Court Rules, 1948 (Stat. R. & Or., 1947, No. 431), Rules 1 (3), 55 (4).

Motion on Notice

The prosecutor, Kevin O'Flaherty, was charged with another person in the Dublin District Court on the 21st January, 1954, with offences under s. 9 of the Forgery Act, 1913, and also with conspiring to commit those offences. He was remanded on bail, first to the 29th January, 1954, and then to the 1st February, 1954. At the hearing on the 1st February, 1954, he was remanded in custody for ten days to the 11th February, 1954, the District Justice acting on the power purported to be conferred upon him by Rule 55 (4) of the District Court Rules, 1948. This rule purports to authorise a remand for a period of not more than fifteen days. The prosecutor, however, contended that the District Justice could only remand him in custody for a period of not more than eight days and relied on s. 21 of the Indictable Offences (Ireland) Act, 1849. On the 3rd February, 1954, he obtained in the High Court (McLoughlin J.) a conditional order of certiorari and on the 10th February, 1954, application was made to the President of the High Court to make the said conditional order absolute.

From the above judgment the District Justice and the Attorney General appealed to the Supreme Court (1).

It is provided by s. 21 of the Indictable Offences (Ireland) Act, 1849, that the period of remand in custody shall not exceed eight days. The rule-making authority for the District Court is set up by s. 70 of the Courts of Justice Act, 1924. By s. 91 of that Act it is provided that such rule-making authority may make rules for currying into effect Part III of the Act and in particular may make rules "for all or any of the following matters, viz., for regulating the sittings and the vacations and the districts of the Justices and the places where proceedings are to be brought and the forms of process, summons, case stated, appeals or otherwise, and the conditions which a party who requires a case stated or an appellant must comply with in civil cases or in criminal cases or in licensing cases as the case may be and the practice and procedure of the District Court generally including . . . the adaptation or modification of any statute that may be necessary for any of the purposes aforesaid and all subsidiary matters." The Rules of the District Court, 1948, made pursuant to the powers contained in this section, provided by rule 1 (3) as follows:—"Where these Rules conflict with any statute in force at the date of the making of these Rules such statute may be modified or adapted to the extent of such conflict," while Rule 55 (4) purported to empower a District Justice to remand an accused person in custody for a period not exceeding fifteen days.

Held by the Supreme Court (Lavery, Kingsmill Moore and O'Daly JJ., Maguire C.J. dissenting), affirming the High Court, that Rule 55 (4) was ultra vires the powers of the rule-making authority in so far as it purported to authorise a remand in custody for a period greater than eight days as provided for by s. 21 of the Indictable Offences (Ireland) Act, 1849, which is the only statute now operating to give specific powers of remand to Justices operating in the Dublin Metropolitan area.

Davitt P. :—

The statutory position in this case is perfectly clear. Under the provisions of the Indictable Offences (Ireland) Act, 1849, as amended by the Criminal Justice Act, 1914, there is no power to remand an accused for a longer period than eight clear days without his consent. The remand in this case was for ten days. The only justification for doing this is to be found in the District Court Rules, 1948, which, though not expressly, do in fact modify the statutory provisions.

In my opinion, the rule-making authority have no power to modify the statutory provisions in this way. All the cases cited to me by counsel on behalf of the State deal with practice and procedure only. The case before me raises broader issues. The question for decision reduced itself to whether ordering the accused to be remanded in custody for a period longer than the eight days is merely a matter of practice and procedure. In my opinion, the question of the liberty of the citizen is involved. The jurisdiction of the District Court is varied and considerable. The main jurisdiction is, of course, substantive, but there is also an ancillary jurisdiction enabling steps to be taken to give effect to the the main jurisdiction. The power to remand in custody is an instance of this ancillary jurisdiction; and is not merely a matter of procedure or practice.

In my opinion, the order of the learned District Justice was made in excess of jurisdiction.

Cur. adv. vult.

Maguire C.J. :—

The single question in this case is whether Rule 55 (4) of

the District Court Rules of 1948 which permits a District Justice to adjourn the preliminary investigation of an indictable offence to any other day is ultra vires in so far as it provides that on such an adjournment a Justice may remand any person in custody for a period not exceeding fifteen days.

It is now clear after an elaborate examination of all the Acts which dealt with the matter that the length of time during which a person on remand in custody during such a preliminary investigation in the City of Dublin was, prior to the making of Rule 25 (b) of the District Court Rules, 1926, regulated by s. 21 of the Indictable Offences Act of 1849 (12 & 13 Vict., c. 69). The period thereby fixed was eight days. The Rule 25 (b) just mentioned empowered a District Justice when deferring the examination of witnesses on the preliminary investigation of an indictable offence to remand an accused person to prison for a period not exceeding fourteen days. In 1948 this rule, however, was replaced by the rule now under consideration.

The rule-making powers of the District Court rule-making authority derive from s. 91 of the Courts of Justice Act, 1924, which empowers the rule-making authority to make rules for the carrying into effect of the part of the Act relating to the District Court. It provides that in particular rules may be made for ". . . the practice and procedure of the District Court generally . . . and the adaptation or modification of any statute that may be necessary for any of the purposes" mentioned in the section.

The first question is whether remand in custody arising on adjournment of the preliminary investigation of an indictable offence is a matter of practice and procedure or is a matter of jurisdiction. It is stressed in argument both on this question and on the further question which arises if it be held that a remand is a matter of practice and procedure that the liberty of the citizen is involved. This, of course, is true and colours one's approach to the question. It is clear, however, that from the earliest times it was recognised that a magistrate was entitled to adjourn the preliminary investigation of an indictable offence. It was obviously necessary that when ordering an adjournment he should have power to remand the accused for a reasonable period. See as to this: Hayes' Digest of the Criminal Statute Law of Ireland, 2nd ed., 1842, vol. 1, at p. 257. (Mr. Justice O'Daly quotes the passage in his judgment.) What was a reasonable period was a matter to be determined by the circumstances of each case. Sixteen days was held to be unreasonable and three days reasonable. There was at the time—1842—no jurisdiction to release on bail.

It seems to me clear that remanding a person before the Court was but a step in the proceeding and was therefore procedure and can only be called jurisdiction in the sense that the Court had jurisdiction to order a remand as part of the proceeding of making a preliminary investigation.

Having taken this view it becomes necessary to consider whether to alter the statutory period from eight days to fourteen days as was done in 1926 and to fifteen days as was done in 1948, was more than a modification of s. 21 of the Act of 1849. There is very little to guide one in deciding this question. We have been referred to the words of Gavan Duffy P. in The State (Attorney General) v. Judge Roe(1), where he says:— "In my opinion, the scope of the contemplated interferences with statute law is well shown by the use of two of the mildest nouns" [adaptation and modification] "in the language denoting change, and the use of the word, 'necessary' which one may construe as 'reasonably necessary.'" I fear that I cannot agree that the use of the word, "modification," restricts the power of the District Court rule-making authority in regard to the extent of the change which may be made in any of the matters within its powers as a result of s. 91 of the Courts of Justice Act, 1924, in the manner suggested. The power given is wide and I interpret the words with which we are concerned as being intended to empower the Committee to alter as it deems necessary provisions in statutes which deal with matters committed to it. Accordingly I am of opinion that serious as is the change...