The Director of Public Prosecutions (at the Suit of Garda Liam Varley) v Ciaran Davitt & The Attorney General
|Ms. Justice Dunne
|14 July 2023
| IESC 17
In the Matter of Section 52 of the Courts (Supplemental Provisions) Act 1961
 IESC 17
AN CHÚIRT UACHTARACH
THE SUPREME COURT
Judgment of Ms. Justice Dunne delivered on the 14th day of July 2023
. This appeal arises from a case stated by Judge Miriam Walsh to the High Court from the District Court. The case stated presented a net question as to whether a member of An Garda Síochána, who was not the prosecuting member and had not initiated the proceedings, had a right of audience to appear in criminal proceedings against Mr. Davitt (“the respondent”) in the District Court.
. In the High Court, Bolger J. found that only the prosecuting guard had a right of audience to appear and prosecute in the case against the respondent, and therefore answered the question posed in the negative. The judgment had the effect of ending a long-established practice in the District Court of non-prosecuting guards acting as “court presenters”. In response, the Oireachtas passed the Garda Síochána ( Amendment) Act 2022 (“the 2022 Act”), reversing the effect of the High Court judgment. As a result, section 8(2A) of the Garda Síochána Act 2005 (“the 2005 Act”) now provides:
“Where a prosecution is instituted by a member of the Garda Síochána pursuant to subsection (2), the prosecution may be conducted by that member or any other such member.”
. The respondent was charged with the possession of a small quantity of cannabis on 13th February 2020, contrary to s. 3 and s. 27(1) of the Misuse of Drugs Act 1977. The prosecution was brought in the name of Garda Liam Varley. On 28th September 2021, the matter came before the District Court. The respondent, represented by his solicitor, indicated that he was pleading not guilty. There was no appearance by Garda Varley or by the Office of the DPP. Sergeant Brendan Riley instead indicated to the Court that he was ‘instructed’ by Garda Varley in the case and that he was not in a position to proceed but could provide facts to the Court in the event of a guilty plea. The respondent challenged Sergeant Reilly's ability to appear for the prosecution. On 29th October 2021, counsel appeared on behalf of the respondent. It was argued that insofar as Order 6 rule 1 of the District Court Rules purports to confer a right of audience on any member of An Garda Síochána, this was ultra vires the District Court Rules Committee as s.8(2) of the 2005 Act provides:
“(2) Subject to subsection (3), any member of the Garda Síochána may institute and conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions.”
The respondent submitted that there was no legal basis providing for the power of a non-prosecuting guard to take instructions from and appear on behalf of the prosecuting guard. It followed that on the return date, there was no appearance by or on behalf of the prosecution, and the respondent invited the District Court Judge to strike out the proceedings.
“Did Sergeant Riley have a right of audience to prosecute the case against the defendant?”
. There is broad agreement between the parties as to the legislative provisions which arise to be considered in this case.
“The right of the public to have access to the place in which justices shall sit shall be subject to the following provisions:
(1) In all cases of summary proceedings the place in which any justice or justices shall sit to hear and determine any complaint shall be deemed an open court, to which the public generally may have access, so far as the same can conveniently contain them; and the parties by and against whom any complaint or information shall there be heard shall be admitted to conduct or make their full answer and defence thereto respectively, and to have the witnesses examined and cross-examined, by themselves or by counsel or attorney on their behalf…”
A key issue of contest between the parties is whether s. 9(1) of the 1851 Act provides an express legislative right of audience.
. The 1851 Act governed District Court proceedings outside of the Dublin Police District. In 1924, the Petty Sessions were abolished, and in their place, a single District Court was created, and the Courts of Justice Act 1924 (“the 1924 Act”) was the governing Act. Section 90 of that Act provides for the power of the District Court Rules Committee and s. 91 empowers the Committee to make rules:
“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, appeal 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 questions of costs and the times for taking any step in the District Court, the entering-up of judgment and granting of summary judgment in appropriate cases and the use of the national language of Saorstát Eireann therein and the fixing and collection of fees and the adaptation or modification of any statute that may be necessary for any of the purposes aforesaid and all subsidiary matters.”
. Empowered by this provision, the current District Court Rules were adopted by the Committee in 1997. Order 6, Rule 1(e) of those rules provides:
“The following persons shall be entitled to appear and address the Court and conduct proceedings—
(e) in proceedings at the suit of the Director of Public Prosecutions in respect of an offence, the said Director or any member of the Garda Síochána or other person appearing on behalf of or prosecuting in the name of the Director.”
. Section 8 of the 2005 Act carries with it a marginal note or heading as follows: “Prosecution of offences by members of Garda Síochána”. Prior to its amendment pursuant to the 2022 Act, it read as follows:
“8.—(1) No member of the Garda Síochána in the course of his or her official duties may institute a prosecution except as provided under this section.
(2) Subject to subsection (3), any member of the Garda Síochána may institute or conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions.”
. Following the decision of the High Court, the 2022 Act amended section 8(2) of the 2005 Act and inserted section 8(2A) into the Act. Thus, the relevant parts of the section now read:
“(2) Subject to subsection (3), any member of the Garda Síochána may institute and conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions.
(2A) Where a prosecution is instituted by a member of the Garda Síochána pursuant to subsection (2), the prosecution may be conducted by that member or any other such member.”
Finally, s. 2(2) of the 2022 Act provides that these provisions shall apply in respect of prosecutions instituted pursuant to subsection (2) of that section irrespective of whether such prosecutions were instituted before or after the coming into operation of the section.
. In her judgment, Bolger J. identified five issues that required consideration:
i. Whether Order 6 Rule 1 of the District Court Rules can be found ultra vires in a consultative case stated or whether that can only be done in judicial review proceedings.
ii. The history of the police informer and garda rights of audience prior to 2005.
iii. The interpretation of s. 8(2) of the 2005 Act, in particular its legislative purpose and whether “and” should be interpreted conjunctively or disjunctively.
iv. Whether the right of audience is akin to costs, as addressed in , and is part of the administration of justice or is part of the District Court practice and procedure.
v. Whether Order 6 rule 1 purports to modify or amend a statutory provision.
. On the first point, Bolger J. held that the High Court had the power to rule on the vires of Order 6 where that question arises by way of a case stated. She found that, while there are limits to the case stated procedure, it did not exclude a ruling on the vires of court rules. In support of this conclusion, the trial judge relied on the case of , where the High Court ruled on the vires of the District Court Rules in answer to an appeal by way of case stated. She also relied on the decisions in and , both of which were judicial reviews resulting in the same conclusion. While the State parties in the High Court sought to distinguish the findings in and on the basis of the nature of the rights engaged or having regard to whether the issues raised went to the jurisdiction of the District Court, Bolger J. was not satisfied that this was an appropriate basis to define the limits of the jurisdiction of the High Court to consider vires of court rules.
. Secondly, tracing the history of the right of audience of a police informer prior to the 2005 Act, Bolger J. relied on the judgment of Kenny J. in . ... outlined that traditionally the common informer was the only one entitled to
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I.F. v J.G.
...This principle arose in a Supreme Court decision which was handed down just after the hearing date in this matter: DPP (Varley) v. Davitt 2023 IESC 17. 5.8 In Varley, Dunne J. cited, with approval, the following passage from Dodd, Statutory Interpretation in Ireland (Bloomsbury Professional......