State (McEvitt) v Delap

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'HIGGINS C.J.,Henchy J.
• Judgment Date: 01 January 1981
• Neutral Citation: 1980 WJSC-SC 1273
• Docket Number: [S.C. No. 169 of 1978],No. 169/1978
• Date: 01 January 1981

State (McEVITT) v. DELAP

THE STATE (AT THE PROSECUTION OF MATHEW McEVITT,DANNY RYAN and GERRY HACKETT)

Prosecutors

and

DISTRICT JUSTICE DELAP

Respondent

1980 WJSC-SC 1273

O'Higgins C.J.

Henchy J.

Parke J.

No. 169/1978

THE SUPREME COURT

1 JUDGMENT delivered the 24th day of April 1980by O'HIGGINS C.J. [Parke J. Concurring]

2 This is an appeal by the Respondent from the Judgment and Order of Mr. Justice Doyle, given in the High Court, whereby the Respondent was prohibited from proceeding with the trial of the Prosecutors on a charge brought against them under the provisions of Section 3 of the Prohibition of Forcible Entry and Occupation Act 1971. Subsection (l) of this Section provides as follows:

"(1) A person who remains in forcible occupation of land or a vehicle shall be guilty of an offence unless he is the owner of the land or vehicle or so remains thereon in pursuance of a bona fide claim ofright."

3 Subsection (2) of the Section is not material on this appeal. By Section 7 of the Act it is provided as follows:

"Every person who commits an offence under this Act shall be liable -"

(a) On summary conviction in the case of a first offence under this Act, to a fine not exceeding £50 or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.

(b) On summary conviction in a case of a second or subsequent offence under this Act to a fine not exceeding £100 or to imprisonment for a term not exceeding twelve months or to both such fine and such imprisonment.

(c) On conviction on indictment, to a fine not exceeding £500or to imprisonment for a term not exceeding three years or to both such fine and such imprisonment."

4 The charge brought against the Prosecutors was that they "did on the 12th January 1978 at 16 Westmoreland Street remain in forcible occupation of land at the premises known as the B and I situated at 16 Westmoreland Street in the Dublin Metropolitan District, they not being the owner of the said land or having a bona fide claim of right thereto". Having been so charged the three Prosecutors were brought before the District Court. They were represented by Mr. Michael White, solicitor. Mr. White informed the District Justice (District Justice Delap) that all three wished to go forward for trial beforea jury. Objection was taken on behalf of the State Solicitor who appeared for the Director of Public Prosecutions on the basis that the Director of Public Prosecutions had decided that the charges should be disposed of summarily by the District Justice and had so prosecuted the three accused. An adjournment of the hearing having been granted by the District Justice the Prosecutors then applied to the High Court and obtained a Conditional Order of Prohibition on the 3rd February 1978, prohibiting the District Justice from proceeding with a summary trial of the charge. This Conditional Order was granted on the basis of a claim made on behalf of the Prosecutors that they had a right to go forward for trial by jury on the charge preferred against them. Cause was shown to the Conditional Order on behalf of the Respondent by Notice dated the 1st March 1978. An application was then made by the Prosecutors to make absolute the Conditional Order notwithstanding the cause shown. This was heard by Mr. Justice Doyle in the High Court. He decided in favour of the Prosecutors and in pursuance ofhis decision an Absolute Order of Prohibition issued in the High Court on the 17th July 1978 directed to the Respondent "absolutely prohibiting him from proceeding with the trial of the Prosecutors on the charge under Section 3 of the Prohibition of Forcible Entry and Occupation Act 1971as set out in Charge Sheet Pearse Street No. 53".

5 Unfortunately the reasons given by Mr. Justice Doyle for making absolute the Conditional Order have not been incorporated in a written judgment nor have we before us any report from him as to the grounds upon which he acted. This is understandable because this motion was one of many dealt with by him on the same day. We have, however, been furnished by him with his Registrar's note of the proceedings and of what he said in giving his decision. From this note it appears that he took the view that facing a criminal charge the Prosecutors had an inherent right to trial by jury, unless such was clearly removed by the statute creating the offence. He was of the opinion that Section 7(a) of the Forcible Entry and Occupation Act 1971was not so explicit or clear in its terms as todeprive the Prosecutors of this inherent right to trial by jury. Accordingly since they sought to exercise this right he granted the Absolute Order of Prohibition against their being tried summarily for the offence charged.

6 On this appeal Counsel for the Prosecutors conceded that an offence of remaining in forcible occupation prosecuted under the provisions of Section 7(a) of the Act was a minor offence. However, they maintained that a person charged with such an offence had, nevertheless, a right to trial by jury and that this right could not be taken from him, at the option of the Director of Public Prosecutions. As I understand it, they further submitted that if 3uch a right could be removed it could only be done by clear and express provisions in the Statute and that such provisions were absent in Section 7(a) of the Act in question. In my view, these submissions are erroneous.

7 Article 38 of the Constitution provides for the trial of offences. In so far as it is relevant to the issues or this appeal this article provides that except in the case of minor offences no person should be tried onanycriminal charge without a jury (Section 5). As to such minor offences, Section 2 provides that such may be tried by courts of summary jurisdiction. The effect of these provisions were thus described in the Judgment of this Court in Conroy v. A.G. 1965 I.R. 411 at 434 per Walsh J.:

"The Constitution does not give an accused person a right to trial by jury for a minor offence or a right to trial in a court of summary jurisdiction for a minor offence. The provisions of Section 2 in relation to minor offences are permissive. The Oireachtas may determine that minor offences may be tried with a jury or without ajury."

8 As considerable confusion appears to exist with regard to the exercise of summary jurisdiction it may be helpful to look briefly at its development and history. The jurisdiction to try offences in a summary manner is a jurisdiction which depends entirely on statute. According to O'Connor's Justice of the Peace (1915 Edition Vol. 1, p.3) it was first given to Justices of the Peace by the Statute 11 Hen.7 C.3 in relation to a number of statutory offences. This statute was followed by 33 Hen.8 C.6 providing for summary conviction in relation tothe offence of carrying daggs or short guns. In ensuing years the statutory extension of the summary jurisdiction of Justices spread to a large variety of offences both common law and statutory. In the last...