State (McColgan) v DPP

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 25 March 1980
• Neutral Citation: 1980 WJSC-SC 1266
• Court: Supreme Court
• Date: 25 March 1980

1980 WJSC-SC 1266

THE SUPREME COURT

O'Higgins C.J

Henchy J.

Griffin J.

No. 30 S.S./1979

70/1979

State (McCOLGAN) v. D.P.P. & CLIFFORD.

THE STATE (McCOLGAN)

v.

DIRECTOR OF PUBLIC PROSECUTIONS

and

DISTRICT JUSTICE CLIFFORD

1 Judgment of Henchy J. delivered the 25th March 1980[nem. Diss]

2 The defendant motorist in this case was convicted in the District Court of having, in breach of the statute, a concentration of alcohol in his blood which was in excess of the permitted level. He was fined in all a sum of £50.55 and disqualified for holding a driving licence for a period of one year from the 5 January 1979, particulars of the conviction and disqualification to be endorsed on the licence.

3 To support this conviction it was necessary to show that there had been compliance with the Regulations ( S.I. No. 193 of 1978) made under the Road Traffic (Amendment) Act, 1978("the 1978 Act"). In the District Court, objection was taken on behalf of the motorist that those Regulations came into operation before the 1978 Act (which empowered, their making) itself came into operation. The District Justice rejected that objection and convicted the motorist. A conditional order of certiorari was then obtained in the High Court seeking, on the ground of the same objection, to have the order of the District Court quashed. When the application to make the conditional order absolute came before Gannon J. he was no more impressed with the point made for the defence than was the District Justice. He therefore allowed the cause shown, thus affirming the order of the District Court. The motorist's present appeal to this Court from the decision of Gannon J. relies on the same point.

4 The point in question may be shortly stated and explained. The 1978 Act was passed on the 5 July 1978. Pursuant to s. 4, it was brought into operation on the 20 July 1978 by S.I. No. 192 of 1978, which was made on the 11 July 1978. The Regulations which had to be complied with to support the prosecution in this case (i.e. S.I. No. 193 of 1978) were made on the 11 July 1978. That was nine days before the 1978 Act, under which those Regulations were made, came into operation. So, says counsel for the motorist, the Minister, as it were, jumped the gun; he had no jurisdiction to make Regulations under an Act which had not yet come into operation; a conviction based on such premature and therefore invalid Regulations is itself invalid and should be quashed.

5 The reply made on behalf of Director of Public Prosecutions and the District...