The Minister for Social, Community and Family Affairs v Lawlor

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 17 February 2003
• Neutral Citation: [2003] IEHC 163
• Docket Number: [No. 1758 S.S./2002]
• Court: High Court
• Date: 17 February 2003

[2003] IEHC 163

THE HIGH COURT

[No. 1758 S.S./2002]

MIN FOR SOCIAL COMMUNITY & FAMILY AFFAIRS v. LAWLOR

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

Between:

THE MINISTER FOR SOCIAL, COMMUNITY AND FAMILY AFFAIRS

Prosecutor

and

ORLA LAWLOR

Defendant

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S213(1)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S224(1)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S224(3)(B)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S224(3)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S224(3)(A)

NATIONAL AUTHORITH FOR OCCUPATIONAL SAFETY & HEALTH V FINGAL CO COUNCIL 1997 ILRM 128

DPP V BYRNE 1994 2 IR 236

CAHALANE V MURPHY 1994 2 IR 262

DPP V CARLTON 1993 1 IR 81

KNOWLES V MALONE UNREP MCKECHNIE 6.4.2001 2001/13/3778

O'CONNELL, STATE V FAWSITT 1983 IR 362

DPP V ARTHURS 2002 2 ILRM 363

CONSTITUTION ART 38

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S224

DPP V GILL 1980 IR 263

DPP V MCKILLEN 1991 2 IR 508

MCKENNA V PRESIDING JUDGE OF DUBLIN CIRCUIT CRIMINAL COURT UNREP KELLY 14.1.2000 1999/17/5316

BARKER V WINGO 1972 407 US 514

PETTY SESSIONS ACT 1851

Synopsis:

CRIMINAL LAW

Delay

Case stated - Delay - Social welfare offences - Fairness of procedures - Whether excessive delay in prosecution of offences - Whether delay such that accused's right to fair trial prejudiced - Social Welfare (Consolidation) Act, 1993 (2002/1758SS - O Caoimh J - 17/2/2003)

The Minister for Social, Community and Family Affairs v Lawlor

The defendant was summonsed for two offences of making false representations for the purpose of obtaining unemployment assistance contrary to section 213 of the Social Welfare (Consolidation) Act, 1993, the dates of the alleged offences being in 1997. The summonses before the District Court were re-issued in 2001, the original summonses having been issued in 1999 but not served on the accused at that time. The accused submitted that the delay was excessive and that it would be unfair to proceed with the prosecution as they were summary proceedings. District Court Judge Martin stated a case to the High Court at the request of the prosecutor as to whether the delay in the case by its nature and extent was of such a degree as of itself to be excessive and to justify her in dismissing the summonses.

Held by ó Caoimh J., in answering the case stated in the negative and remitting the matter back to District Court that an accused must satisfy two tests before being granted relief in respect of delay. Addressing the first test, the delay, of itself, was not so excessive or inordinate as to give rise to a necessary inference that there was a real risk that the trial would be unfair. As to the second test, which focuses on the causes for the delay or the reasons or excuses that are advanced to justify it, the District Court would have to address that aspect in light of any explanation that may be given for the delay by the prosecutor and account would have to be taken therein of the nature of the charge and nature of the proofs in the case.

Mr. Justice Aindrias Ó Caoimh

1 This matter comes before this court on a consultative case stated by Judge Mary Martin of the District Court assigned to District No. 15 sitting at Carlow, pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act,1961.

2 At a sitting of the District Court on the 4^th April, 2000 two complaints in the matter of the Minister for Social, Community and Family Affairs (“hereinafter referred to as “the Minister”) versus Orla Lawlor were listed for hearing.

The complaints were that the defendant:-

3 1. Did on the 27^th May, 1997, within the State knowingly for the purpose of obtaining unemployment assistance for herself, make a false representation, to wit, that she was unemployed on each day between 21^st May, 1997 and the 27^th May, 1997 when she was employed on those days by Southside Central Cleaners Ltd. of 48 Townsend Street, Dublin 2, contrary to s. 213 (1) of the Social Welfare Consolidation Act,1993;

4 2. Did on the 27^th May, 1997, within the State knowingly for the purpose of obtaining unemployment assistance for herself, make a false representation, to wit, that she was unemployed on each day between 18^th June. 1997 and the 24^th June, 1997 when she was employed on those days by Southside Central Cleaners Ltd. of 48 Townsend Street, Dublin 2, contrary to s. 213 (1) of the Social Welfare Consolidation Act,1993;

5 The case stated recites that at the hearing before the District Court the following facts and matters were admitted:-

6 (i) The accused was summonsed for two alleged offences of knowingly for the purpose of obtaining unemployment assistance making false representations that she was unemployed when she was employed on those days.

7 (ii) The dates of the alleged offences were the 27^th May, 1997 and the 24^th June 1997.

8 (iii) A summary prosecution under the Social Welfare Acts may be brought at the suit of the Minister for Social Community and Family Affairs at any time within two years of the date of when the alleged offence was committed.

9 (iv) The summonses before me were summonses which had been re-issued from the District Court office on the 16^th February, 2001. Summonses had originally been issued pursuant to an application made on the 13^th May, 1999 and returnable to Carlow District Court on the 23^rd June, 1999 (hereinafter referred to as “the original summonses”). A copy of the original summonses issued are annexed hereto.

10 (v) The original summonses were sent for service to the Superintendent of An Garda Siochána, Carlow. The summonses were not served by the Gardaí on information received by them from the defendant's husband that the defendant had been admitted as an in-patient at St. Dympna's Hospital, Carlow and were returned unserved to the State Solicitor by letter of the 11^th June, 1999, a copy of which letter is annexed hereto.

11 (vi) By letter of the 7^th December, 2000 the Department of Social Community & Family Affairs instructed the State Solicitor to continue the proceedings against the accused and on foot of same the State Solicitor sought and obtained the re-issue of the summonses returnable to Carlow District Court on the 4^th April, 2001.

12 (vii) The re-issued summonses were served on the accused on the 10^th March, 2001.

13 The case stated indicates the contention of the parties before the District Court:-

14 On behalf of the accused it was submitted that the delay in the prosecution from the 27^th May, 1997 and the 24^thJune, 1997 to the 4^th April, 2001 was excessive and because of same it would be unfair and unjust to proceed with the prosecution as these were summary proceedings with a time limit for the issue of the summonses of two years from the date of the alleged offences. This time limit is longer than the usual six months time limit which applies to summary prosecutions. It was contended that due to the fact the summonses were issued at the end of the two year time limit imposed there was a particular onus on the prosecutor to prosecute the accused without further delay. It was further contended that the decision not to serve the summonses due to the illness of the accused was not a sufficient reason for not proceeding. It was submitted that if a matter as to fitness to plead arose this could have been dealt with by the District Court on the return date of the original summons, namely the 23^rd June, 1999.

15 On behalf of the prosecutor it was contended before the District Court that the accused had accepted the summonses in question had been validly issued within the two year limitation period and that the summonses were properly before the Court. The reason for the non service was the explanation given by the accused's husband to the Gardaí when they sought to effect service and as appeared from a letter of 11^th June, 1999 from Superintendent M.J. Regan to the State Solicitor (annexed to the Case Stated) which showed that at the time the accused was a patient at St. Dympna's Hospital suffering from depression and that she had tried to commit suicide and that her husband did not know when she would be discharged. It was further contended that the accused had not alleged any prejudice or other unfairness other than as to time.

16 The District Judge reserved her decision pending the determination of this case stated and seeks the opinion of this Court on the following question:-

17 Is the delay in this case by its nature and extent of such a degree as of itself to be excessive and to justify me in dismissing the summonses?

18 On behalf of the accused it was submitted by Mr. Treacy of counsel that the prosecutor is out of time to bring this prosecution at this stage because the original summonses were issued within the prescribed limitation period of two years, the summonses before the District Court were re-issued on the 16^th February, 2001 over three and a half years after the dates of the alleged offences. It was further submitted that the term "brought" in the context of s. 224 (1) of the Social Welfare (Consolidation) Act,1993(“the Consolidation Act”) requires that the actual summonses before the court be issued within a period of two years of the alleged offences and secondly that the service of the summonses be within a reasonable period after their issue.

19 Having referred to the facts of the case, counsel submits that the Gardaí chose not to serve the summonses at a time when they could have effected service by serving the summonses on the accused's husband at her address. The summonses were returned to the State Solicitor unserved by letter of the 11^th June, 1999 from the Gardaí. It was not until the 7^th December, 2000 that the Department of Social, Community and Family Affairs (“the Department”) instructed the State Solicitor to continue the prosecution against the...