archive-ie.com » IE » S » SUPREMECOURT.IE

Total: 1020

Choose link from "Titles, links and description words view":

Or switch to "Titles and links view".

  • to the Commissioner This suggests that the Regulations envisage a report containing some account of the Board s reasoning It would be surprising if the report which is the basis of the disciplinary charges against Garda Kelly could be much more informative than the report concluding that the charges were established 32 As counsel for the appellant has pointed out the Board of Inquiry does not conform to the model of the decision maker coming to a dispute with no prior knowledge which can be encountered in other areas of the law There is an inquisitorial element to this procedure It is for the Board of Inquiry to formulate the breaches of discipline alleged and provide particulars thereof and to provide notice of such allegations to the member concerned It follows therefore that the Board of Inquiry will have had some degree of prior engagement with the facts and importantly in the present context will have made some assessment of their significance It is also important that while the Board of Inquiry makes a decision in relation to the fact of breach that decision is not final and may be appealed to the Appeal Board Furthermore the Board itself does not impose a sanction but rather recommends it It is for the Commissioner to decide in the light of the Board s determination of the facts and recommendation as to penalty what penalty he or she considers appropriate Thus in every case the conclusion of the Board s inquiry must go to another decision maker the Commissioner and in some cases the Government and in many cases will be considered by a third decision maker the Appeal Board Thus when the Regulations impose an obligation on the Board of Inquiry to submit a written report to the Commissioner such an obligation must be read in the light that the Regulations themselves contemplate important decisions being made and possibly reviewed on foot of that written report This in itself is suggests that the Regulations contemplated a narrative setting out the views and therefore the reasons of the Board 33 Regulation 30 provides that the report shall include copies of the statements made and documents submitted with the verbatim record of the proceedings required by the Regulations the determination of the Board as to whether there is a breach of discipline and if so the determination as to the act or conduct constituting the breach and the Board s recommendation as to disciplinary action In my view it is not unduly pedantic to point out that the Regulations provide that the report shall include these matters rather than as the letter of the Board of Inquiry of the 26th of July 2011 apparently considered that the report should comprise the matters set out in Regulation 30 2 and no more In other words the Regulations themselves contemplate most naturally that the report will be something over and above the raw data collected in the course of the inquiry This might be said to follow from the basis principles of fairness identified so eloquently in Mallak but it also follows in my view from a functional approach to the Regulations The Commissioner of An Garda Síochána has many other important functions besides making determinations on discipline within the force and it seems very unlikely that the Regulations would have contemplated that he or she should approach the important task of determining appropriate sanctions in cases of serious breach of discipline within the limited timescale provided for by perusing not just the full witness statements and exhibits but as in this case the transcripts of five days of hearing without any narrative indicating the analysis of that material which the Board of Inquiry must have carried out to come to the conclusions it did 34 By the same token it is relevant to consider the other contemplated recipient of the report of the Board of Inquiry Regulation 33 contemplates an appeal by the member concerned in the case of a breach of discipline found It is not necessary here to resolve any question as to the nature of the appeal contemplated It was argued on behalf of the Commissioner that it was no more than a review akin to judicial review of the proceedings of the Board of Inquiry On the other hand counsel for the appellant pointed to the power of the Appeal Board to hear evidence on oath from any party and contended that in an appropriate case there could be a rehearing But even taking the narrower approach suggested on behalf of the Commissioner it seems to follow that if the Appeal Board is to carry out such a function it must know not just the decision arrived at by the Board of Inquiry but why and how it did so That must mean more than a simple determination of a breach of discipline and what can be logically deduced therefrom and should necessarily include the Board s conclusions in relation to matters of importance raised in this case on behalf of the Garda Kelly including the significance of the emergence of Ms McGourty s statement and the evidence of Mr McNulty the taxi driver 35 This conclusion might also be arrived at by an analysis of the language of the Regulation itself Regulation 33 sets out grounds of appeal Among those grounds are subsection 3 c that all the relevant facts were not ascertained were not considered or were not considered in a reasonable manner and subsection 3 e that the sanction is disproportionate in relation to the breach of discipline concerned These grounds seem of necessity to contemplate that the relevant facts and indeed all the relevant facts will be ascertained by the Board of Inquiry will be considered and in particular will be considered in a reasonable manner It is difficult to see how a mere record of the fact of breach of discipline itself demonstrates that all relevant facts have been ascertained and considered in a reasonable manner If it is proper to consider the manner in which facts were ascertained and considered and in particular the reasonableness of the consideration it follows that the Appeal Board must have some method most obviously in a narrative and reasoned decision to determine what facts have been ascertained how they have been considered and whether indeed such consideration is reasonable Again in my view it is at least arguable that a consideration of whether a disciplinary action is disproportionate to the breach of discipline concerned suggests an analysis of something more than the factual conclusion of breach and implies an assessment of the precise nature and character of the breach found something that cannot be carried out from a statement of the fact of contravention alone 36 In my view therefore a proper interpretation of the Regulations requires that reasons be given for any determination made by the Board of Inquiry unless it can be said that the issue is so self evident and narrow that the mere fact of the decision discloses the reason That cannot be said to be the case here Dismissal of Appeal under Regulation 35 2 37 The Regulations do not define the circumstances in which it will be appropriate to dismiss an appeal under Regulation 35 2 because it was either frivolous vexatious or as in this case without substance or foundation Since the decision of the Appeal Board is contained in a single standard form it does not explain how the Appeal Board understood the test or indeed the factual circumstances that led it to conclude that the test was satisfied In the written submissions filed on this appeal on behalf of the Commissioner no interpretation of the regulation was advanced The principal ground upon which this aspect of the case was defended was the fact admittedly of significance that the High Court judge had himself found that the decision was justified and that the appeal was without substance or foundation There is undoubtedly a place for the approach that it is often easier to recognise a situation than to analyse it and define it and I would not lightly discount an experienced judge s conclusion on issues such as this which is in any event akin to a familiar legal test However for a number of reasons I cannot accept that this aspect of the case can be disposed of this simply First and perhaps most fundamentally neither the High Court nor this Court is an appeal board empowered under Regulation 35 2 It is just as important here as when upholding a challenged decision that the court should maintain the principle that its function in judicial review is not to substitute its decision for the decision of the body entrusted with that decision by statute Furthermore I have already found that the Board of Inquiry was obliged to give reasons for its decision These reasons were not available to the High Court judge and I am not prepared to assume that if they were the High Court judge or this court would inevitably have come to the conclusion that an appeal which involved an analysis of that reasoning and a consideration of the proportionality of the penalty was nevertheless doomed to fail In any event the High Court judge did not give any consideration to the question of the emergence of the McGourty statement because he considered that its existence had already been disclosed in Superintendent Brunton s report Finally it appears to me that the High Court did not give sufficient consideration to the fact that the test applied by the Board of Appeal was applied on the papers and without any representation from either party rather than as it was in the High Court after two days of elaborate argument with both sides represented Accordingly in my view it is necessary to consider the meaning of the test under Regulation 35 2 its proper application and the consequences for this case 38 On the hearing of this appeal counsel for the Commissioner accepted that the test posed by Regulation 35 2 was akin to the jurisdiction exercised by courts under Order 19 Rule 28 to dismiss claims or appeals because they are frivolous vexatious or disclose no reasonable cause of action or under the Court s inherent jurisdiction because they are bound to fail Barry v Buckley 1981 IR 306 and that accordingly the without substance or foundation test was akin to the test of whether or not a case or appeal was bound to fail That is a test applied by the courts and is a salutary jurisdiction but it is one which is approached with some caution I would also add the caveat that in this case it is important to remember that the jurisdiction is exercised on the papers alone and without representations made by either party There is always a greater risk that a point made in the papers may appear much simpler or less meritorious than it truly is and accordingly I consider that the jurisdiction under Regulation 35 2 is one which should be exercised with caution It must be remembered that the end point of the process may be as it was in this case the dismissal of a serving garda with all the consequences that entails financial psychological and social for the member and his or her family 39 At first sight it might be thought that the different grounds in Regulation 35 2 are to be treated disjunctively I accept that the concept of frivolous or vexatious claims or appeals may involve a consideration of motive or intent of the claimant or appellant and therefore a somewhat subjective test although it possible that proceedings may be frivolous or vexatious without being intended to be so whereas the concept of without substance or foundation appears to require a purely objective analysis However I consider that each of the tests must be set in the context of Regulation 35 2 as a whole and the interpretation of the individual phrase can benefit from the light cast on it by the surrounding words The wisdom expressed in the Latin expression noscitur a sociis it that it is possible learn something about a word like a person from his or her friends neighbours and associates 40 I consider that the terms can usefully be approached as describing a category of cases where it is appropriate to dismiss the case or appeal without a formal hearing While logically the concepts of frivolous vexatious and without substance or foundation are distinct concepts there is a significant degree of overlap between them Almost all appeals or claims which are properly described as frivolous or vexatious can also be said to be without substance or foundation The addition of the concept of without substance or foundation extends the category somewhat since there can be cases objectively determined to be hopeless but which are nevertheless advanced bona fide and with all seriousness but which on analysis are bound to fail Nevertheless in applying the test it is useful to consider the matter cumulatively recognising the test is to be applied on the papers and as describing those cases which can be summarily disposed of without a hearing It thus appears to me that the test is intended to apply in this context without any extensive thought or debate or analysis to cases whose frailty is almost self evident Indeed if analysis of any depth is required it might be said that it is not appropriate to dismiss a case on the papers alone without a substantive hearing A board of appeal which is considering the exercise of its powers under Regulation 35 2 is not asked to predict the likely or even overwhelmingly probable outcome of an appeal This is all the more so when it is recognised that the issue in an the appeal is not merely the question whether the board was correct to find the individual breaches of discipline but also whether the particular graded penalty applied was appropriate In exercising a jurisdiction under Regulation 35 2 the Board of Inquiry is required to come to the conclusion that there are no conceivable circumstances in which it can be envisaged that any board of appeal could contemplate the possibility that it might come to a conclusion in some respects different from that of the Board of Inquiry and the Commissioner This is a legal test It is not a particularly complex text or one which only a lawyer can perform but it is probably assisted by the recognition encapsulated in the judgment of Megarry J in John v Rees 1970 Ch 345 As everybody who has anything to do with the law well knows the path of the law is strewn with examples of open and shut cases which somehow were not of unanswerable charges which in the event were completely answered of inexplicable conduct which was fully explained of fixed and unalterable determinations that by discussion suffered a change at p 402 It is entirely possible that the Appeal Board correctly and scrupulously applied this precise test before dismissing the appeal But the difficulty in this case which in my view is fatal is that neither this Court nor the High Court has any way of knowing that it did so 41 I consider for reasons essentially similar to those applied to the decision of the Board of Inquiry that the Appeal Board was also obliged to give reasons for its decision under Regulation 35 2 It is true that there is no appeal from a decision of the Appeal Board but that only emphasises the fact that this is a terminating decision in every sense of that word The only possibility for challenging the decision is by way of judicial review and in my view it is required that the Appeal Board provide reasons for its decision which has the effect of upholding the dismissal of a garda from the force I consider that this conclusion follows from an analysis of the Regulations particularly when approached in the light of the common law principles outlined so clearly in Mallak Viewed in this way it becomes apparent that it is impossible to accept the simplistic analysis of the Regulations which would derive from the express reference to reasons in Regulation 37 3 the negative conclusion that reasons are not required elsewhere in the code Indeed viewed in the light of the structure and function of the regulations it makes little sense to provide for a requirement on an Appeal Board to give reasons for its decision after a full appeal unless the scheme also requires the giving of reasons at the earlier stages in the process Conclusion 42 Normally a failure to provide reasons where required will lead to the quashing of the unreasoned decision However no complaint is made about the five day hearing before the Board and it was not argued that the conclusion of the Board was not open to it on the evidence before it Furthermore the Applicant made a realistic offer in advance of the High Court hearing suggesting that the Appeal Boards decision could be set aside to permit a full appeal In this case I consider it to be both wasteful and unhelpful to require a further first instance rehearing of these matters It is in everyone s interest not least that of Garda Kelly and his family that this matter be brought to a conclusion The frailties complained of by the Applicant arise from the point when reasons were not given for the Boards decision If such reasons are now provided the Applicant will be entitled to appeal Any Appeal Board will have not only the material before the Board of Inquiry and the reasons offered but also the consideration of the matter that has been a product of the judicial review procedure Accordingly in the particular circumstances of this case I would quash the decision of the Appeal Board upholding the Commissioner s decision dismissing the applicant and direct that the Board of Inquiry furnish reasons for its decision and that the matter should then proceed from that point I would however give the parties liberty to apply in the event of any practical difficulty THE SUPREME COURT RECORD NO 205 2013 Denham C J O Donnell J Clarke J BETWEEN GARDA JOHN KELLY Appellant and COMMISSIONER OF AN GARDA SIOCHANA Respondent Judgment of O Donnell J delivered on the 5th day of November 2013 1 To the casual observer Drumshanbo County Leitrim population 857 might appear a tidy quiet and even sleepy place It certainly was not such in the early hours of Sunday the 20th of September 2009 At 3 30am that morning a taxi driven by Anthony McNulty was waiting for customers outside Monica s public house at High Street Drumshanbo A local garda Garda John Kelly the appellant approached It should be said that this incident occurred only two weeks after the conviction in the District Court of the licensee for having persons on licensed premises after the licensing hours That offence had occurred in January 2009 and had itself been prosecuted by Garda Kelly It is common case that Garda Kelly spoke to both the licensee Mr Paddy McGourty and his wife Monica McGourty for whom it seems likely the premises was named Mrs McGourty it appears became so incensed that she left the licensed premises and walked around the town either following Garda Kelly or in front of him and at one stage sat on a window outside another licensed premises looking at Garda Kelly apparently with a view to making the point that a number of other licensed premises were still operating at that time of the morning without attracting Garda Kelly s attention This much is not in dispute However what happened or did not happen between these two incidents is a matter of bitter controversy in this case and led to the dismissal of the Applicant Appellant from the Garda Síochána on order of the respondent Commissioner and thus to these proceedings Facts 2 The appellant Garda John Kelly was a member of An Garda Síochána and at the time of his dismissal in August 2011 had served 27 years in the force In 2009 when the events the subject matter of the appeal took place the appellant was stationed at Drumshanbo Garda Station in County Leitrim On the 20th September 2009 he entered details on the Garda PULSE system indicating that he had conducted an after hours inspection of Monica s licensed premises in Drumshanbo on that night where he had discovered the licensee and his wife to be present along with several customers The information entered into the PULSE system named the licensee and his wife along with two other individuals a Mr and Mrs Lynch The remaining customers were not named One week later on the 27th September the Appellant made a formal statement outlining these events wherein he stated that he inspected the premises and found seven customers there present and that two other individuals had walked past him as he entered the premises On the 18th November 2009 this statement was submitted to the local sergeant a Sergeant Fahy with a view to a further prosecution of the licensee 3 Sergeant Fahy returned the appellant s statement to him on the 20th November seeking clarification on a number of issues contained therein and in particular whether he knew the other individuals present in the public house or had obtained their names and seeking confirmation that Garda Kelly had in fact entered the main bar of the premises The appellant replied to Sergeant Fahy on the 11th January 2010 That correspondence makes it clear that the relationship between Garda Kelly and Sergeant Fahy was not good Garda Kelly stated the he did not understand the significance of the sergeant s queries but confirmed that he had entered the premises He provided a second statement which was not in any way materially different to the first He also made several accusations against Sergeant Fahy in this correspondence in which he questioned why the sergeant was seeking the clarifications sought referred to the sergeant s close scrutiny of the previous prosecution of the licensee and suggested that Monica s was a favoured local for members of the Garda Síochána residing in the area Sergeant Fahy then wrote to Inspector Sweeney the Chief Superintendent at Manorhamilton Garda Station on the 14th January 2010 notifying him of the situation complaining that Garda Kelly had not provided answers to his questions in this second statement and accordingly recommended no prosecution be brought After submitting his response of the 11th January Garda Kelly had reported sick and unfit for duty and had subsequently spent some time on sick leave The inspector by way of response to Garda Kelly s second statement and Sergeant Fahy s letter to him requested Garda Kelly to provide clarification on the matters highlighted by Sergeant Fahy in November 4 In a letter dated the 2nd February 2010 Garda Kelly provided his answer to this request and also provided a third statement dated the 1st February This statement differed quite markedly from the first two statements First it identified one of the individuals Garda Kelly had said walked past him when he was entering the pub as Robbie Cullen Second Garda Kelly now stated that Mr Brendan Lynch who he had previously named as one of the customers present on the night had been abusive to him on that occasion and the statement gave details of the language used In response to this latest statement Sergeant Fahy wrote to Inspector Sweeney and stated that he knew as a fact that another person was on the premises on the night of the 20th September who was known to Garda Kelly and also that at least one other person had already been prosecuted by him for being on a licensed premises after hours On the 1st March 2010 Robbie Cullen who was the individual named by Garda Kelly as having passed him on his way into the pub on the night in question made a formal statement to Sergeant Fahy in which he denied being present on the premises at all that night and furthermore made allegations against Garda Kelly that he had been recently harassing him to provide the names of the customers present on the premises on the night of the 20th September 5 On the 27th April 2010 Inspector Sweeney wrote to the Chief Superintendent in Sligo informing him of his decision to prosecute the licensee and recommending that the matter of the events of the night of the 20th September be fully investigated A prosecution of Mr McGourty was initiated but adjourned pending the outcome of the investigation into the events of the night in question Inspector Sweeney stated in his letter to the Chief Superintendent that he had spoken with Monica McGourty on the 23rd April and that she denied that Garda Kelly had entered the premises On the 9th April Brendan Lynch and his wife Mary Lynch who had been named in the first statement of the appellant as customers present on the night in question also made statements to Inspector Sweeney They denied that the garda had entered the pub on the night in question They admitted however that they had been present there after hours and named some of the other customers who were there also Mrs Lynch stated at the hearing of the Board of Inquiry that when she and her husband became aware that Garda Kelly had made allegations against them she went to Sergeant Fahy who told her that she could make a complaint through her solicitor and get a copy of any statement Mrs Lynch s solicitor informed her that she could request a copy of the statements of Garda Kelly This request was made and the Lynchs received copies of the three statements made by Garda Kelly about the night in Monica s The third statement contained the reference to abusive comments alleged to have been made by Mr Lynch Mrs Lynch said she was shocked because she knew that this certainly did not happen and accordingly the Lynchs made a complaint about Garda Kelly 6 On foot of Inspector Sweeney s recommendation a Superintendent Brunton was appointed Investigating Officer pursuant to Regulation 23 of the Garda Síochána Discipline Regulations 2007 hereinafter the Regulations A thorough investigation was carried out by Superintendent Brunton Statements were taken from several individuals who admitted being present on the premises on the night in question but denied that Garda Kelly had entered the premises Robbie Cullen made a statement to Superintendent Brunton in which he repeated that he not been present on the premises on the night in question and also that Garda Kelly had approached him and harassed him about naming persons who were there A statement was also taken from Anthony McNulty the taxi driver who claimed that he had seen Garda Kelly enter the premises Superintendent Brunton s produced an admirably succinct document entitled Statement of Facts established by the investigation conducted by Superintendent Brian Brunton into alleged breaches of Discipline committed by Garda John Kelly 22554A Drunshambo Garda Station For present purposes the following portions of that Statement of Facts appear relevant On the 8th of May 2010 I was appointed to investigate alleged breaches of discipline committed by Garda John Kelly 22554A Drunshanbo Garda Station During the course of my investigations I established the following facts 1 In the early hours of the 28th of September 2009 Garda John Kelly Drunshambo Garda Station conducted an inspection of Monica s licensed premises at High Street Drunshanbo Garda Kelly subsequently prepared an investigation file in respect of this incident and submitted it to his superiors on the 18th of November 2009 for direction 2 Sergeant Chris Fahy who was then the sergeant in charge at Drunshanbo Garda Station was concerned about some aspects of the investigation file including the accuracy of the statements made by Garda John Kelly which was submitted as part of the investigation file 3 Following the submission of the garda investigation file by Garda Kelly Sergeant Fahy spoke with the wife of the licensee Ms Monica McGourty Ms McGourty informed Sergeant Fahy that Garda John Kelly did not enter her pub when he conducted his inspection but had remained outside speaking with her husband Padraig McGourty She also provided Sergeant Fahy with the names of the individuals who were on the premises after hours on the night in question 4 Following this conversation Sergeant Fahy returned the investigation file to Garda Kelly on the 20th of November 2009 asking a number of questions and requesting an additional statement from Garda Kelly clarifying issues 16 Anthony McNulty a local taxi driver supports the version of events of Garda Kelly in that he saw him actually enter the front door of Monica s bar 17 Anthony McNulty would have been sober on the night 18 Anthony McNulty had previously been arrested by Garda Kelly for drunk driving arsing out of a road traffic collision This matter has yet to be heard by the courts 19 Anthony McNulty did socialise with Garda John Kelly on one occasion since the incident on the 20th of September 2009 In total Superintendent Brunton recorded 26 facts and concluded I believe that the evidence contained in the attached investigation files supports the establishment of the above mentioned facts Since this will become important later it is necessary at this point to note that this account by referring to conversation between Ms McGourty and Sergeant Fahy as having taken place following the submission of the Garda file would seem to clearly place it as occurring between the submission of the file on the 18th of November and the raising of queries by Sergeant Fahy on the 20th Superintendent Brunton also obtained a report from a garda document expert on Garda Kelly s notebook which found importantly that the information relating to the night of the 20th September 2009 was written using two different pens and in particular that the references to Robbie Cullen and to Mr Lynch being abusive both of which it will be recalled only featured in the third statement delivered in February 2010 were written in a different pen to those recording the rest of the incident 7 On the 23rd February 2011 a Board of Inquiry hereinafter the Board was established pursuant to Regulation 25 of the Regulations to conduct a hearing into the matter A board of inquiry is only established in relation to allegations of serious misconduct which are matters which may attract significant penalties up to and including dismissal from the force The appellant was accused of six counts of misconduct before the Board including falsehood in relation to each of his three statements and discreditable conduct in relation to his behaviour towards Robbie Cullen The hearing took place over 5 days between late June and early July and evidence in relation to the events of the 20th September was heard from a number of witnesses 8 On the third day of the hearing Sergeant Fahy gave evidence During that evidence it emerged for the first time that Ms Monica McGourty had approached Sergeant Fahy on the 23rd September some three days after the incident in question and therefore before Garda Kelly had even made his first statement and long before it had been submitted to Sergeant Fahy Moreover on that occasion Sergeant Fahy had not merely had a conversation with Ms McGourty but had taken the step of taking a formal statement from Mrs McGourty which was not however supplied to Superintendent Brunton Nor its existence disclosed In that statement she had alleged harassment by Garda Kelly and also significantly stated that while he might have put his foot inside the porch she was sure he did not enter the premises on the night in question The emergence of this statement cast the events in a somewhat different light and in particular Sergeant Fahy s request on the 20th November for confirmation from Garda Kelly that he had entered the premises and that he did not know any other of the occupants It also cast a different light on Sergeant Fahy s interaction with the Lynchs and his initial recommendation against prosecution 9 Much was sought to be made of the content of this statement by Garda Kelly s representatives who suggested that the reference to Garda Kelly putting a foot inside the porch was in some way exculpatory of him On the final day of the hearing the 11th July 2011 the tribunal found all six counts had been established and recommended that Garda Kelly be dismissed from service By letter of the 26th July 2011 the chairperson of the Board of Inquiry sent to the Chief Superintendent for Internal Affairs at garda headquarters a letter recording the fact that the Board of Inquiry had commenced sitting on the 26th May and concluded on the 11th July The letter stated that the chairperson was enclosing the report of the Board pursuant to Regulation 30 of the Regulations comprising the recommendation of the Board a list of witnesses the list of exhibits one extra statement handed in during the hearing presumably that of Mrs McGourty and the transcript of the hearing A copy of the report and transcript of the proceedings was also sent to Garda Kelly s solicitors The Commissioner accepted the recommendation of the Board and dismissed Garda Kelly from An Garda Síochána 10 On the 14th July 2011 the appellant indicated his intention to appeal the decision of the Board of Inquiry On the 16th August 2011 a formal Notice of Appeal was submitted which merely recited the grounds of appeal contemplated in the Regulations There was a change of representation on Garda Kelly s behalf and following the grant of an extension of time submissions on behalf of Garda Kelly were lodged on the 2nd March 2012 The grounds of appeal submitted by the appellant were in general terms It was stated that he had not been provided with due process during the investigation or during the hearing of the Board that the findings of the Board were wrong in law and in fact and that the recommendation of the Board and the decision of the Commissioner were too severe in the circumstances of the case Some correspondence was exchanged as to possible dates for a hearing However in mid March 2012 the Appeal Board dismissed the appeal of Garda Kelly without a hearing pursuant to Regulation 35 2 b of the Regulations on the basis that the grounds of appeal were without substance or foundation Regulation 35 on its face does not require that a hearing be held before an appeal is dismissed on this ground nor does it provide in terms that reasons should be given for dismissal The decision of the Appeal Board was recorded on a pre printed form on which the other grounds for dismissal under Regulation 35 i e that the appeal was frivolous or vexatious were deleted by hand That was the full extent of the information provided to Garda Kelly in respect a decision which had the effect of making final his dismissal from An Garda Síochána Proceedings in the High Court 11 Following the dismissal of his appeal by the Appeal Board Garda Kelly initiated judicial review proceedings in the High Court seeking inter alia orders of certiorari in relation to the decision of the Commissioner of An Garda Síochána to dismiss him from service the recommendation of the Board that he be dismissed and the dismissal of his appeal by the Appeal Board 12 In a judgment delivered on the 12th April 2013 the High Court Hedigan J refused the reliefs sought by the appellant The

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/4f37924c38411fbf80257c1a004d24bd?OpenDocument (2016-02-09)
    Open archived version from archive



  • two decisions Reade v Judge Reilly Anor 2010 1 I R 295 and Gormley v Judge Smyth Anor 2010 1 IR 315 18 In Reade v Judge Reilly Anor the facts were that the applicant was charged with offences contrary to s 3 and s 15 of the Non Fatal Offences Against the Person Act 1997 which were hybrid offences enabling both summary trial and trial on indictment The applicant was summonsed to appear before the District Court Judge Reilly having read the statements was of the view that the offences were minor and accepted jurisdiction However at the trial following evidence of the victim Judge Reilly changed his mind and ordered that the offences were not minor offences and that the matter did not fall within his jurisdiction Judge Reilly sent the accused forward for trial to the next sitting of the Circuit Criminal Court and directed the service of the book of evidence The applicant obtained leave to seek an order of certiorari quashing the order of Judge Reilly declining jurisdiction and an order of mandamus compelling Judge Reilly to hear the matter 19 In Reade the High Court Charleton J refused the reliefs sought and held that even if a District Judge took a preliminary view that the papers in a case disclosed a minor offence the Court is under a constitutional duty to ensure that the case was tried by a jury should it emerge that the case was non minor The applicant appealed to the Supreme Court 20 In Reade the Supreme Court Macken J affirmed the order of the High Court refusing an order of certiorari but made a declaration that the District Court did not have power to send an accused forward for trial or direct service of a book of evidence in the circumstances The Court confirmed that it was for the District Court to determine if an offence was minor or non minor That if during a hearing it became clear to a District Judge that a hybrid offence was not a minor offence he or she was obliged to decline jurisdiction and discontinue the hearing 21 In Reade Macken J held I now turn therefore to the second issue It will be recalled that on the second issue counsel on behalf of the appellant contended that even if the District Court Judge was entitled to decline jurisdiction on one or other of the above grounds nevertheless the District Court Judge had no statutory power vested in him in such circumstances to send forward an accused for trial at the next sitting of the Circuit Criminal Court as he did and did not have any power to direct service of a book of evidence as he also did Under the provisions of the Act of 1951 the District Court Judge is vested with a statutory power once he has concluded that an indictable offence is not apt to be tried on a summary basis to send an accused forward for trial and direct the service of a book of evidence Analogous statutory provisions exist in relation to similar offences where created by other legislation of a similar nature This flows from the natural logic of any statutory scheme for the disposal of indictable offences on a summary basis and from specific statutory provisions vesting such powers in the District Court Judge Different considerations arise in relation to hybrid offences where no such specific power is provide by statute I have been unable to find any statutory general power vested in the District Court or in a District Court Judge which permits any equivalent order to be made in the case of non minor hybrid offences where the District Court Judge has properly declined jurisdiction and no such statutory power was drawn to this Court s attention by counsel for the second respondent Although all the academic writings including Walsh on Criminal Procedure Thomson Round Hall Dublin 2002 and Woods on District Court Practice and Procedure in Criminal Cases Limerick 1994 as well as the Report of the Working Group on the Jurisdiction of the Courts on The Criminal Jurisdiction of the Courts Dublin 2003 state that the District Court Judge must send an accused forward for trial if he considers the offence in the case of a hybrid offence not to be a minor offence it is not at all clear on what basis this is stated While the case of Cumann Luthchleas Gael Teo v Judge Windle 1994 1 I R 525 is cited as supporting this latter contention by one of the authors a consideration of that case makes it clear that although there were hybrid offences provided for under the Act in question the sending forward was by reference to an indictable offence triable summarily under another specific provision of the same Act I do not consider therefore that it is of assistance in resolving the issue Since the District Court Judge is obliged to decline jurisdiction there is clearly an actual power vested in him to strike out the proceedings as the appellant contends as being the only consequence which can flow from the determination that the offence is not a minor offence I am of the view that in the absence of a statutory power to do anything further this is the correct conclusion It does not of course prevent the second respondent from commencing proceedings again in respect of the offence on an indictable basis 22 In Gormley v Judge Smyth Anor 2010 1 IR 315 the applicant was charged with two offences in the District Court both of which could be tried summarily or on indictment A member of An Garda Síochana indicated in error to the District Court that the DPP was consenting to a summary trial The District Court judge accepted jurisdiction Then a solicitor for the DPP indicated to the District Court judge that in fact the DPP was directing a trial on indictment The applicant opposed the direction on the ground that the District Court judge had accepted jurisdiction to hear the matter and that the DPP did not have the power to direct the District Court judge to send the matter forward for trial on indictment The applicant sought an order of certiorari quashing the order of the District Court judge sending him forward for trial to the Circuit Criminal Court and an injunction restraining the DPP from prosecuting him in the Circuit Criminal Court 23 The High Court O Neill J in Gormley refused the reliefs sought In the Supreme Court it was held that where the DPP had directed prosecution of a hybrid offence by way of indictment the District Court judge had power to take the necessary steps to ensure that the matter was sent forward for trial as long as there were neither unfair procedures oppression or abuse of process For while the jurisdiction of the District Court was a statutory jurisdiction in relation to the prosecution of criminal and civil matters the Court was vested with implied procedural powers relating to the exercise of its functions 24 In Gormley Geoghegan J held with which Fennelly J and Finnegan J agreed that the District Judge acted properly and the appeal was dismissed 25 In Gormley Geoghegan J referred to the judgment of Macken J in Reade v Judge Reilly Anor 2010 1 I R 295 at p 313 where the issue of the jurisdiction to send the applicant forward for trial on indictment was addressed and thus Since the District Court Judge is obliged to decline jurisdiction there is clearly an actual power vested in him to strike out the proceedings as the applicant contends as being the only consequence which can flow from the determination that the offence is not a minor offence I am of the view that in the absence of a statutory power to do anything further this is the correct conclusion It does not of course prevent the second named respondent from commencing proceedings again in respect of the offence on an indictable basis 26 In Gormley Geoghegan J analysed the situation thus On one view of that passage and reading it literally it might be thought that it would apply to this particular case and that accordingly on that account this court should allow the appeal For a combination of reasons I do not accept that conclusion First of all the doctrine of precedent or stare decisis has to be applied with a careful eye on the context in which the alleged principle was set out and the nature of the case and I believe in particular that courts should be cautious about precedents in relation to criminal procedures Every criminal trial turns out to be different quite radically from every other criminal trial and problems arise which were not necessarily foreseen when general principles were laid down in another case A good example for instance is a series of decisions in this court on preservation of evidence Wide propositions have had to be modified in the light of different facts There are a number of factors in Reade v Reilly 2009 IESC 66 2010 1 I R 295 which radically and in my opinion relevantly differentiate it from this case First of all in Reade v Reilly 2009 IESC 66 the Director of Public Prosecutions had unequivocally directed a summary trial The trial only became aborted because after changing his mind more than once the District Court Judge decided that it was a non minor offence Secondly there is no suggestion that the representative of the Director of Public Prosecutions was given any option or even to argue as to what was to happen By that I mean there was no choice given to the Director of Public Prosecutions to either consent to the matter being sent forward for trial on indictment or on the other hand to request that the case be struck out with the option open to the Director of Public Prosecutions to institute new proceedings In this particular case the Director directed a trial on indictment Once that direction was given the District Court Judge automatically had all the consequential procedural powers One obvious feature of a hybrid offence is that the Oireachtas from the beginning contemplates there will definitely be a trial be it on indictment or summarily Where the Director of Public Prosecutions has as in this case and unlike Reade v Reilly 2009 IESC 66 2010 1 I R 295 directed a trial on indictment it makes no sense in my view to suggest that effectively the prosecution has to be struck out with no further order That would be contrary to the intention of the Oireachtas As O Connor s Justice of the Peace Ponsonby 1911 points out and as was further underlined in the Report of the Working Group on the Jurisdiction of the Courts May 2003 jurisdiction to conduct a summary trial is statutory only This undoubtedly means that the court does not have an inherent jurisdiction though the exact meaning of that expression is none too clear In my view this does not mean that every act done by a District Court Judge in the course of lawfully sitting in the District Court is unauthorised unless there is an express statutory provision permitting it It is true he is confined to the statutory jurisdiction but in exercising that statutory jurisdiction there can be and are necessary inherent powers There is no doubt that a purely statutory court such as the District Court has no inherent jurisdiction to conduct any form of criminal or civil litigation without express statutory authorisation That proposition which has always been accepted does not mean that a judge of the District Court does not in carrying out his or her function have any inherent procedural powers which he or she is entitled to exercise As I see it the position was quite simple in this case The relevant parts of section 4A of the Criminal Procedure Act 1967 as inserted by s 9 of the Criminal Justice Act 1999 read as follows 4A 1 Where an accused person is before the District Court charged with an indictable offence the court shall send the accused forward for trial to the court before which he is to stand trial the trial court unless a the case is being tried summarily b the case is being dealt with under section 13 or c the accused is unfit to plead 2 The accused shall not be sent forward for trial under sub section 1 without the consent of the prosecutor The rest of the section is not particularly relevant to the issues on this appeal Without even considering inherent powers it would seem to me that the Oireachtas expressly told the District Court Judge to do what he did The appellant was before the District Court and charged with an indictable offence in that the offence was capable of being tried on indictment That being so the District Court Judge was obliged to send the appellant forward for trial to the Circuit Criminal Court because none of the exempting conditions applied The case was no longer being tried summarily even if it ever was validly tried summarily The case was not being dealt with under s 13 of the Criminal Procedure Act 1967 as amended and the applicant was not unfit to plead I am not clear that there was any gap to be filled in the procedure so as to enable the District Court Judge to take the steps of sending the case forward for trial on indictment in slightly unusual circumstances but if there is any argument that can be made to that effect it would seem to me that the District Court judge clearly had the necessary implied or inherent powers I do not think that the more elaborate setting out of powers in the Criminal Justice Act 1951 for cases coming within that Act of 1951 indicates any lack of powers on the part of the District Court Judge in the particular circumstances of this case If a hybrid offence therefore is before the court and it becomes clear that with the approval of the Director of Public Prosecutions it has to be tried upon indictment for whatever reason I take the view that the judge will have the power to take the necessary steps to achieve that result absent unfair procedures oppression or abuse of process None of those inhibitions apply in this case In my view the District Court Judge acted properly I would dismiss the appeal I agree with this analysis of the law by Geoghegan J and adopt and apply it Decision 27 This appeal raises the matter of the two decisions Reade v Judge Reilly Anor 2010 1 I R 295 and Gormley v Judge Smyth Anor 2010 1 IR 315 The perceived conflict is between the words in Reade v Judge Reilly Anor that where the DPP had directed disposal of a hybrid offence summarily the District judge did not have power to send the appellant forward for trial or to direct service of a book of evidence On the other hand in Gormley v Judge Smyth Anor Geoghegan J stated If a hybrid offence therefore is before the court and it becomes clear that with the approval of the Director of Public Prosecutions it has to be tried on indictment for whatever reason I take the view that the judge will have the power to take the necessary steps to achieve that result absent fair procedures oppression or abuse of process 28 In all the circumstances of that case I am satisfied that the words of Macken J in Reade v Judge Reilly Anor were obiter Further in that case the terms of s 4A of the Criminal Procedure Act 1967 were not addressed Reade v Judge Reilly Anor was decided on and limited to the facts of that case and it should be distinguished 29 As Geoghegan J stated in Gormley v Judge Smyth Anor after referring to the fact that the jurisdiction to conduct a summary trial is statutory only This undoubtedly means that the court does not have an inherent jurisdiction though the exact meaning of that expression is none too clear In my view this does not mean that every act done by a District Court Judge in the course of lawfully sitting in the District Court is unauthorised unless there is an express statutory provision permitting it It is true he is confined to the statutory jurisdiction but in exercising that statutory jurisdiction there can be and are necessary inherent powers This identifies the appropriate and applicable law Indeed this has been applied correctly in subsequent cases in the High Court 30 The District Court Judge has authority to return a person charged with an indictable offence for trial The appropriate procedure is that set out in s 4A of the Criminal Procedure Act 1967 31 Absent the consent of the DPP the District Court Judge has no authority to send a person forward for trial Thus the appropriate step for the District Court Judge is to ascertain if the DPP is consenting to the return The Judge of the District Court should not take any step regarding the Book of Evidence until he or she has taken a step to see if the DPP consents to a return for trial If the DPP refuses consent then the District Judge may strike the matter out 32 In further clarification a hybrid offence i e one which may be prosecuted either summarily or on indictment does not alter its nature on the election of a method of prosecution For example if an election is made to prosecute such an offence summarily it does not then become a summary offence It may then be prosecuted summarily as long as no intervening factor arises such as a District Judge determining it to be a non minor offence On the choice of prosecution the nature of a hybrid offence does not change It retains at all times the nature of an offence which may be prosecuted summarily or by way of indictment Conclusion 33 For the reasons given I would dismiss the appeal THE SUPREME COURT Appeal No 80 2011 Denham C J Murray J O Donnell J Between Eamon Dillon Applicant Appellant and Judge David McHugh The Director of Public Prosecutions Respondents Judgment delivered on the 30th day of October 2013 by Denham C J 1 This is an appeal by Eamon Dillon the applicant appellant referred to as the appellant against the judgment of the High Court Kearns P delivered on the 14th January 2011 and the order made on the 28th January 2011 and perfected on 10th February 2011 wherein the High Court refused the appellant the reliefs sought by way of judicial review and it was ordered that the appellant pay the respondents costs The Director of Public Prosecutions is the respondent and is referred to as the DPP Judicial Review 2 The appellant had obtained leave to apply for judicial review for the following reliefs i An Order of certiorari by way of application for judicial review quashing the return of the appellant for trial to the Dublin Circuit Criminal Court as made by the first named respondent on the18th February 2009 in the proceedings entitled The Director of Public Prosecutions v Eamon Dillon ii An order of prohibition prohibiting the trial of the appellant before the Dublin Circuit Criminal Court or any other proceedings or processes in relation thereto in respect of Bill Number DU 302 09 or any other bill number arising from the return for trial of the 18th February 2009 iii A Declaration that the appellant was improperly returned to the Dublin Circuit Criminal Court pursuant to the decision of the first named respondent the18th February 2009 iv That the respondent be further precluded from prosecuting the appellant in light of his communicated decision to enter a nolle prosequi and or a declaration that his further prosecution would be in breach of the appellant s legitimate expectation v A declaration that the Circuit Criminal Court has no jurisdiction to further try the appellant on Bill No 302 09 in consequence of the bad return for trial vi A stay on the prosecution of the offences pending the determination of the within proceedings vii An extension of time where same is required to bring the within application viii The costs of the proceedings 3 The grounds upon which such relief was granted were i The appellant stands charged before the Dublin Circuit Criminal Court with the offence outlined in the indictment to Bill Number DU 302 09 namely the offence of arson contrary to s 2 of the Criminal Damage Act 19991 alleged to have been committed on the 1st September 2007 ii The Director of Public Prosecutions directed summary disposal of the matter but the District judge refused jurisdiction and on the18th February 2009 following the preparation of a book of evidence the appellant was sent forward by the first named respondent for trial before the Dublin Circuit Criminal Court iii The case was listed for mention from time to time in the Circuit Criminal Court and it was thereafter listed for trial on the 14th February 2010 By letter the DPP indicated that he proposed to enter a nolle prosequi in the matter arising from a decision of the Supreme Court However the DPP subsequently resiled from that position on the basis of another Supreme Court decision and has indicated an intention once more to prosecute the appellant iv The s 2 criminal damage charge with which the appellant was charged is a hybrid offence it is triable either summarily or on indictment at the instance of the DPP v In the case of Reade v Judge Reilly and Anor 2010 1 IR 295 the Supreme Court has ruled that the District Court has no jurisdiction to send a person forward for trial in such circumstances and therefore the Circuit Criminal Court had no jurisdiction to deal with the purported indictment laid against the appellant and it has no jurisdiction to further deal with the case vi In the case of Gormley v Judge Smyth Anor 2010 1 IR 315 though taking a different line to hybrid offences the Supreme Court expressly respected the decision in Reade and that decision is binding precedent vii Notwithstanding the foregoing having indicated an intention to enter a nolle prosequi it was incumbent upon the DPP to do so and the failure to honour that commitment or understanding was unfair and prejudicial viii Without prejudice to the foregoing it is and it would be unfair and prejudicial to the appellant to permit the continuation of the proceedings against him The High Court Judgment 4 Having discussed the relevant authorities the High Court Kearns P held I am satisfied the requisite powers for the return made in this case are to be found within the provisions of s 4A of the Criminal Procedure Act 1967 and that any suggestion to the effect that the Criminal Justice Act 1951 supplied enabling provisions to so order which are somehow absent or lacking in the Act of 1967 is mistaken Section 2 3 of the Act of 1951 simply states that this section shall not prevent the court from sending forward a person for trial for a scheduled offence This negative provision does not confer any positive power on the District Court to do anything and in my view could not be relied upon as the source of the power in question That power is to be found within s 4A of the Act of 1967 and I am satisfied that the return for trial in this case was validly made for the reasons set out above Finally I reject out of hand the suggestion that the DPP is estopped or precluded from adopting the course he has chosen to take on the basis that to do so is somehow unfair and prejudicial Cases such as Eviston v Director of Public Prosecutions 2002 3 I R 260 and Carlin v D P P 2010 I E S C 14 make it abundantly clear that the Director is entitled to change his mind about whether or not to prosecute a particular case No question of oppression unfair procedures prejudice or unfairness can be invoked or relied upon by the appellant to halt this prosecution particularly in circumstances where in correspondence with the appellant s solicitor the respondent had made it clear that whatever procedural course required to be adopted the appellant would still face prosecution on the particular charge I would therefore refuse the relief sought herein Notice of Appeal 5 The appellant filed a notice of appeal setting out the following grounds of appeal i The learned judge erred in law in his analysis and conclusions and in refusing relief to the appellant ii The learned judge erred in law and in fact in concluding that the doctrine of stare decisis did not apply and or that he was free to disregard the determination of this Honourable Court in the case of Reade v Judge Reilly Anor 2010 1 IR 295 either on the basis of distinguishing the facts of that case from the facts of the instant case or at all and he so erred in preferring the more general reasoning of Geoghegan J in the case of Gormley v Judge Smyth Anor 2010 1 IR 315 iii Without prejudice to the foregoing the learned judge erred in law in refusing relief to the appellant in circumstances wherein this Court in Reade held that there was no statutory provision which specifically enables a District Judge to send a person forward for trial in the case of a hybrid offence where the District judge has declined jurisdiction as happened in similar circumstances in the instant case iv The learned judge erred in law and in fact his determination that while at first blush the appellant s case appeared to have more of the features of the Reade case than the case of Gormley in fact the case more closely resembles the Gormley case v The learned judge erred in confusing hybrid offences that are being sent forward for trial with indictable offences as governed by s 4A of the Criminal Procedure Act 1967 and by so doing the learned Judge accorded undue relevance to the provisions of that section vi The learned judge erred in confusing the consent of the Director of Public Prosecutions to a return for trial with a direction that an offence should be tried on indictment Submissions of the Appellant 6 Written and oral submissions were made on behalf of the appellant In written submissions counsel for the appellant stated that although the DPP directed summary disposal of the hybrid criminal damage charge preferred against the appellant the appellant was sent forward to the Dublin Circuit Criminal Court by the District Judge who considered that the offence was not a minor offence fit to be tried summarily He also adjourned the case for the service of a book of evidence 7 Counsel referred to Reade v Judge Reilly Anor 2010 1 IR 295 where this Court it was submitted unanimously held that where the DPP directed summary disposal of a hybrid offence the District Judge did not have the power to send the appellant forward for trial or to direct service of a book of evidence 8 On the basis of Reade counsel for the appellant submitted that it was exclusively a matter for the DPP to determine the nature and mode of trial of a hybrid offence It was submitted that if a District Judge took a different view to the DPP the District Judge should strike out the charge In this case arising from the Reade case apparently the DPP informed the appellant in writing of the intention to enter a nolle prosequi in his case However later after considering 2010 IESC Gormley v Judge Smyth Anor 2010 1 IR 315 the DPP resiled from the offer and now submits she is entitled to maintain the prosecution against the appellant 9 Counsel referred to a line of cases leading up to Reade being Attorney General O Connor v O Reilly WJSC HC 1187 State McEvitt v Delap 1981 I R 125 at 131 The State Clancy v Wine 1980 I R 228 Director of Public Prosecutions v Logan 1994 3 IR 254 Robinson v Judge O Donnell Ors 2009 IESC 51 and the amendment to s 7 of the Criminal Justice Act 1951 Oral Submissions on behalf of the Appellant 10 In oral submissions counsel for the appellant submitted that where a District Judge had declined jurisdiction to try a case summarily he had no further role save to strike out the proceedings He submitted that if the DPP has elected to have a case tried summarily it can proceed only as a summary offence It was submitted that if the DPP elected to proceed summarily but a District Judge says it is a non minor case the District Judge has no further role and should strike out the case It was further submitted that that does not prevent the DPP recommencing the prosecution giving a direction that the matter proceed by way of trial on indictment 11 Counsel for the appellant submitted that this case was the same as Reade v Judge Reilly Anor 2010 1 IR 295 Further that the behaviour of the DPP in the proceedings should weigh with the Court to enable it to grant the relief sought It was submitted that it was not fair to the appellant that the DPP should adopt one analysis on one day and then when a second Supreme Court decision was made decide that the second Supreme Court decision is relevant However counsel stated that the appellant was not saying that he was prejudiced It was submitted that what the DPP was doing was unprincipled not mala fides It was argued that the DPP was in error in saying Gormley v Judge Smyth Anor 2010 1 IR 315 applied as it was submitted this case is virtually on all fours with Reade It was submitted that the District Judge did not have the power to adjourn the case Counsel relied on Robinson v Judge O Donnell Ors 2009 IESC 51 in saying that the offence becomes a summary offence Submissions on behalf of the DPP 12 Counsel for the DPP made oral and written submissions to the Court In written submissions it was stated that the appeal arises out of the Gormley and Reade decisions It was submitted that the return for trial was valid and that the learned High Court Judge was correct to dismiss the appeal Counsel submitted that the decision in Gormley makes it absolutely clear that the District Judge has jurisdiction to make a return for trial in a case such as this It was submitted that the appeal should be refused so as to now permit the prosecution of the appellant to proceed on foot of the return for trial 13 In oral submissions counsel stressed that the DPP had changed his mind which he did in light of the Gormley decision He submitted that pursuant to the Gormley decision the return for trial in this case is valid Counsel addressed the Reade case and distinguished it on its specific facts and circumstances He submitted that Gormley considered s 4A of the Criminal Procedure Act 1967 which Reade had not He submitted further that the point had crept into Reade on appeal that it had not been part of the decision of the High Court Counsel pointed out that members of this Court had previously stressed the importance of not having a point argued and decided in the Supreme Court that had not been in the grounds granted for judicial review 14 Counsel also stressed in oral submissions that when a District Judge decides that a case is non minor he loses all substantive jurisdiction However it was submitted that the District Judge has not lost all procedural jurisdiction The District judge in this case could have made the order to strike out If the DPP consents to a return for trial then the District Judge can order a return for trial That is if all the ingredients of s 4A exist and so the District Judge could order a return for trial It was submitted that there was no difference between a consent or a direction of the DPP to a return for trial In this case it was submitted there was no challenge to the DPP s consent which is recited on the face of the order Statute 15 Section 4A of the Criminal Procedure Act 1967 was inserted by s 9 of the Criminal Justice Act 1999 Section 4A provides for an accused to be sent forward for trial 4A 1 Where an accused person is before the District Court charged with an indictable offence the Court shall send the accused forward for trial to the court before which he is to stand trial the trial court unless a the case is being tried summarily b the case is being dealt with under section 13 or c the accused is unfit to plead 2 The accused shall not be sent forward for trial under subsection 1 without the consent of the prosecutor 3 Where the prosecutor refuses to give a consent required under subsection 2 in relation to an indictable offence the District Court shall strike out the proceedings against the accused in relation to that offence 4 The striking out of proceedings under subsection 3 shall not prejudice the institution of proceedings against the accused by the prosecutor 5 The accused shall not be sent forward for trial under subsection 1 until the documents mentioned in section 4B 1 have been served on the accused 16 The documents mentioned in S 4B 1 are as follows 4B 1 Where the prosecutor consents to the accused being sent forward for trial the prosecutor shall within 42 days after the accused first appears in the District Court charged with the indictable offence or within any extension of that period granted under subsection 3 cause the following documents to be served on the accused or his solicitor if any a a statement of the charges against the accused b a copy of any sworn information in writing upon which the proceedings were initiated c a list of the witnesses the prosecutor proposes to call at the trial d a statement of the evidence that is expected to be given by each of them e a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act 1992 f where appropriate a copy of a certificate under section 6 1 of that Act g a list of the exhibits if any Further statutory provisions deal with a number of matters including an extension of time additional documents and examination of exhibits Cases 17 This appeal revolves around two decisions Reade v Judge Reilly Anor 2010 1 I R 295 and Gormley v Judge Smyth Anor 2010 1 IR 315 18 In Reade v Judge Reilly Anor the facts were that the applicant was charged with offences contrary to s 3 and s 15 of the Non Fatal Offences Against the Person Act 1997 which were hybrid offences enabling both summary trial and trial on indictment The applicant was summonsed to appear before the District Court Judge Reilly having read the statements was of the view that the offences were minor and accepted jurisdiction However at the trial following evidence of the victim Judge Reilly changed his mind and ordered that the offences were not minor offences and that

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/ca24af300881173f80257c140057c7e3?OpenDocument (2016-02-09)
    Open archived version from archive


  • actually in court on that occasion She also agreed that she was not present when it was said that Mr Clifford had entered into the relevant recognisance which was said to have required him to turn up in court on the 31st July 2006 6 2 At the close of the prosecution case counsel for Mr Clifford sought a direction on the basis that there was no evidence on which it could be found that Mr Clifford had either entered into recognisances which required him to attend court on the 31st July 2006 or that Mr Clifford had not attended court on that date It is of course clear that both of those facts are essential to proving an offence under s 13 of the Criminal Justice Act 1984 as amended by s 23 of the Criminal Justice Act 2007 6 3 That section as amended provides as follows 1 If a person who has been released on bail in criminal proceedings fails to appear before a court in accordance with his recognisance he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding 5 000 or to imprisonment for a term not exceeding twelve months or to both 6 4 It seems clear that the legislative intent in enacting the section was to ensure that there might in an appropriate case be an additional penalty imposed on those who failed to answer bail The position which pertained up to that time was that on a failure to answer bail a bench warrant could be issued thus permitting the relevant person to be arrested and brought before the court Depending on the circumstances the court might remand the accused further either on bail most likely because some reasonable explanation for failure to attend was tendered or in custody if the court was not satisfied that any reason tendered for failure to attend was legitimate and became sufficiently concerned about the risk of the accused concerned not attending for his trial Either way no additional sanction was imposed on the accused The purpose of s 13 was to allow for an additional sanction above and beyond the accused being arrested and brought before the court to allow the process in respect of which he was originally charged and bailed to continue 6 5 Be that as it may the real question which arises here is as to the sort of evidence which must be tendered by the prosecution to establish both the fact of the accused having been bailed to attend on a particular date and the fact that the accused failed to attend on the date in question Once those facts are established it becomes a matter for the accused to put forward any explanation for failure to attend such as might satisfy the court not to convict 6 6 As appears from the case stated the relevant bench warrant which was issued on the 31st July 2006 was on the court file and it was submitted on behalf of the prosecution that the District Judge was entitled to take account of that bench warrant The first point made on behalf of Mr Clifford is that it was not open to the prosecution to place reliance on the bench warrant at all It is said that the bench warrant needed to be properly produced as part of the prosecution case I am not satisfied that that submission is well founded The District Court is a court of record see s 13 of the Courts Act 1971 Its orders therefore amount to prima facie proof of the fact that an order in the terms so recorded was in fact made It does not seem to me that it was necessary in those circumstances for the bench warrant to be proved in any particular way It was an order made by the court and proves itself However that does beg the question as to what facts can be said to have been established by the bench warrant 6 7 Clearly in order for the District Judge to have issued the bench warrant concerned the District Judge would have been required to have been satisfied that the accused in this case Mr Clifford had entered into recognisances to attend on the occasion in question and was not present in court to answer his bail Those are the same factual elements as underly an offence under s 13 6 8 However in that context counsel for Mr Clifford places reliance on the decision of this Court in Corporation of Dublin v Flynn 1980 I R 357 On the facts of that case the defendant had previously been found guilty of offences under the Planning Acts which arose out of a failure to comply with an enforcement notice served under the provisions of those Acts The service of an enforcement notice was of course a necessary proof for it was a failure to comply with a properly served notice that constituted the offence Failure to comply with an enforcement notice is of course a so called continuing offence so that a person may be convicted again of a continuing or further failure notwithstanding an earlier conviction for non compliance The defendant had previously been convicted of failure to comply but was again before the court for an alleged further continuing offence On the occasion in question the prosecution did not seek to prove again the service of the relevant enforcement notice and the question arose as to whether the proof of the previous convictions of the defendant which were predicated upon the service of a valid notice was sufficient 6 9 The unanimous judgment of this Court was given by Henchy J In that context he said at pp 365 366 the following In my judgment the prosecution in this or in any other criminal charge is not relieved of the onus of proof in regard to necessary issues by showing that those issues were expressly or impliedly decided against the accused in earlier proceedings It is of the essence of a criminal trial that it be unitary and self contained to the extent that proof of the ingredients of the offence may not be established as a result of a dispersal of the issues between the court of trial and another tribunal Evidence of a previous conviction whether given as an ingredient of or an element in the charge or given pursuant to a special statutory permission does no more than provide conclusive proof of that conviction As to the issues that were decided against the accused in the earlier trial the conviction does not operate to foreclose those issues in the subsequent trial The opposite of that was thought to be the law by Lawson J in R v Hogan 1974 Q B 398 but his opinion was emphatically rejected by the House of Lords in Director of Public Prosecutions v Humphrys 2 1977 A C 1 In R v Hogan the charge was one of murder arising out of an incident in respect of which the accused had earlier been convicted of assault causing grievous bodily harm with intent to do so Lawson J ruled that the accused was estopped from reopening any of the issues necessarily decided against him by the jury s verdict in the earlier trial In the Humphrys Case the House of Lords overruled R v Hogan The real objection to the ruling given by Lawson J in R v Hogan is summed up in a sentence in the speech of Lord Salmon at p 48 of the report of the Humphrys Case On a charge of murder the onus lies on the prosecution to prove their case not by technical doctrine but by evidence and the jury s duty is to decide the case on the evidence called before them which might be quite different from the evidence adduced in the previous trial In my judgment that is a correct statement of the law whatever be the charge and whether the trial be before a jury or be a summary one 6 10 It seems clear therefore that it is necessary to prove again in any second or subsequent criminal process any facts necessary to the establishment of the relevant offence even though such facts were established in a previous case Such facts cannot ordinarily be established by proving a previous conviction from which it might be inferred that the judge or jury convicting must have been satisfied of some particular fact Those District Judges who had previously convicted Mr Flynn of failure to comply with an enforcement notice must have been satisfied that an enforcement notice had been served for if they were not he should not have been convicted In addition the relevant previous orders of the District Court in that case recited the service of such notice Notwithstanding same Mr Flynn was entitled to an acquittal on the occasion in question because there was no evidence of the service of the relevant enforcement notice before the court on that occasion 6 11 On that basis it is submitted on behalf of Mr Clifford that even if the bench warrant by virtue of it being on the court file can be taken to amount to evidence of the fact that a bench warrant was issued nonetheless its existence does not prove the ingredients or facts necessary to establish the offence with which Mr Clifford was charged In response counsel for the prosecution argued that the court order in this case recorded matters which occurred in the court itself rather than external matters of which the court was satisfied on evidence It seems to me that at the level of principle that point is well made A court order which records that which actually occurred in a court is it seems to me as a matter of evidence in a very different category to a court order from which it might be inferred that the court was satisfied on the basis of evidence that a certain state of facts existed or where the order concerned specifies that the court was so satisfied In the former case the court is recording matters of its own knowledge because they occurred in court In the latter case the court can only be taken to have been satisfied on whatever evidence was available on the occasion in question of certain facts On the authority of Flynn no inference can be drawn from such an order for the purposes of a future case so that the prosecution must present the same or other equally appropriate evidence to the court dealing with the issue again 6 12 In those circumstances I am satisfied that the bench warrant is undoubtedly sufficient to establish that Mr Clifford was not present in court on the 31st July 2006 The bench warrant involves the court recording something which actually happened before it that is that Mr Clifford was not present when his case was called It seems to me therefore that at least that element of the offence under s 13 was established by virtue of the prosecution placing reliance on the bench warrant which was on file 6 13 However greater difficulty arises in respect of the recognisance The case stated does not disclose nor is this Court aware as to how it is said that Mr Clifford was admitted to bail It is possible that he was admitted to bail by order of the District Court It is also possible and quite frequently is the case that persons are admitted to bail in a garda station and enter into recognisances requiring them to attend a specified future sitting of the District Court 6 14 I am satisfied that if it should transpire that Mr Clifford was admitted to bail on recognisance by the court the same principle would apply in relation to establishing that fact as I have already indicated should apply in relation to establishing that Mr Clifford did not attend before the District Court An order of the District Court admitting Mr Clifford to bail on recognisance to attend on a future occasion proves itself If such an order was on file or was otherwise available to the Court at the time of the prosecution then same would be sufficient of itself to establish that Mr Clifford was admitted to bail on recognisance 6 15 For like reasons to those already addressed in respect of the question of the prosecution seeking to place reliance on an order on file even though no mention of it was made during the prosecution case as such I am also satisfied that provided the relevant order admitting Mr Clifford to bail on recognisance by the court itself was available on file or otherwise available to the District Judge same can be considered as part of the prosecution case even though not specifically referred to during the presentation of that prosecution case 6 16 However if Mr Clifford was admitted to bail in a garda station then different considerations apply Without overruling the decision of this Court in Flynn it is impossible to see how the fact of Mr Clifford being admitted to bail on recognisance in a garda station can be established in a criminal prosecution simply by placing reliance on the bench warrant issued for his arrest The fact that such a form of issue estoppel does not arise in criminal proceedings is a well established part of the jurisprudence If it is considered appropriate to alter that situation then legislation would seem to be the only means available 6 17 It follows that I am of the view that this Court is unable to give a definitive answer to the question posed by the District Judge in relation to the failure to answer bail charges This is because the case stated does not make any reference to what seems to me to be a highly relevant fact The case stated does not set out whether there was available to the District Judge an order of the District Court admitting Mr Clifford to bail on recognisance If that was the case then the District Judge was entitled to find that there was evidence of Mr Clifford having been so admitted to bail on recognisance On the other hand if an order of the District Court itself admitting Mr Clifford to bail on recognisance was not available either because there was no order on the court file or otherwise available in court or because Mr Clifford was admitted to bail in a garda station then the answer must be different In such an eventuality there just was no acceptable evidence before the court to establish an essential ingredient of the offence under s 13 being that Mr Clifford had been so admitted to bail 6 18 In those circumstances it is only possible to give a conditional answer to the question raised in the case stated under this heading For the reasons already analysed I am satisfied that there was evidence in any event from which the District Judge could have concluded that it had been established that Mr Clifford did not turn up in court on the 31st July That element of the offence does not in my view gives rise to any difficulty However whether there was evidence of the second element of the offence being that Mr Clifford was under a legal obligation to so turn up by virtue of having been admitted to bail on recognisance is dependent on whether there was available to the District Judge from the District Court file or otherwise at the time of the prosecution an order of the District Court admitting Mr Clifford to bail If such an order was so available then there was sufficient evidence of that element of the offence such as would have permitted the District Judge to reach the overall conclusion that the offence had been established If such an order was not so available then there was no acceptable evidence before the District Court as to what is on any view a vital ingredient of the offence and in those circumstances the overall answer would have to be that there was not sufficient evidence to enable the District Judge to find the offence proved 7 Conclusions 7 1 For the reasons set out I would propose that the answers to the questions posed by the District Judge in the case stated be as follows 7 2 In respect of the public order charge I would propose that question a be answered yes and question b be answered to the effect that a District Judge is entitled to infer recklessness as to the occasioning of a breach of the peace even where the evidence was that no such breach was in fact likely to occur in circumstances where the District Judge is satisfied that there was from the perspective of the accused a substantial risk that the behaviour of the accused in question would occasion such a breach of the peace and where the District Judge was satisfied that the relevant accused carried on with that behaviour notwithstanding that substantial risk 7 3 So far as the failure to answer bail charge is concerned I would propose answering the question posed in the case stated by indicating that in the event that there was available to the District Judge whether from the court file or otherwise at the time of the prosecution an order of the District Court admitting Mr Clifford to bail on recognisance then there was evidence on which the District Judge could find the relevant offence under s 13 to have been established On the other hand if an order of the District Court admitting Mr Clifford to bail on recognisance was not so available either because he was in fact admitted to bail in a garda station or because there was no available evidence as to how Mr Clifford was admitted to bail then I would propose answering the question by indicating that there was not sufficient evidence to enable the District Judge to find the relevant offence proved Unfortunately for the reasons already analysed it is not possible to give a more definitive answer to this question THE SUPREME COURT Appeal No 386 2008 Denham C J O Donnell J Clarke J Between PAUL CLIFFORD Appellant Accused and THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA SUSAN McLOUGHLIN Respondent Prosecutor Judgment of Mr Justice Clarke delivered the 25th October 2013 1 Introduction 1 1 On the 1st October 2006 an incident involving the appellant accused Mr Clifford occurred at Kilmainham Garda Station Partly as a direct consequence of that incident but also arising from investigations made thereafter Mr Clifford was charged before the District Court with two offences While it will be necessary to analyse the offences concerned in somewhat more detail in substance the charges related to respectively a public order offence of engaging in conduct either recklessly or with intention to provoke a breach of the peace and an offence of failure to appear at a criminal hearing in respect of which the accused had been admitted to bail 1 2 At the close of the prosecution case submissions were made on behalf of Mr Clifford which suggested that he should be acquitted on both charges The District Judge did not agree with those submissions Mr Clifford did not go into evidence and was subsequently convicted but the District Judge did agree to state a case for the opinion of the High Court under the provisions of s 2 of the Summary Jurisdiction Act 1857 as extended by s 51 of the Courts Supplemental Provisions Act 1961 The substance of the issues raised in the case stated suggested that it was not open to the District Judge to convict Mr Clifford on the state of the evidence presented by the prosecution in relation to both of the charges 1 3 The case stated came before Charleton J in the High Court who delivered judgment on the 29th October 2008 Clifford v The Director of Public Prosecutions 2008 IEHC 322 In substance Charleton J held that the District Judge was correct in law in convicting Mr Clifford of the charges on the evidence before the District Court Mr Clifford has appealed to this Court against that finding 1 4 In substance the issues raised in relation to the two charges which Mr Clifford faced are entirely distinct and different and it follows that it is appropriate to consider them separately I will therefore turn first to the public order charge 2 The Public Order Charge The Facts 2 1 As noted in the case stated the prosecution case in respect of the alleged public order offence consisted of two witnesses both of whom were members of An Garda Síochána The evidence was that Mr Clifford arrived at Kilmainhaim Garda Station in the company of two other persons Evidence was given that Mr Clifford was drunk and abusive kicked and banged on the door in the public office and demanded the return of a mobile phone There was evidence that Mr Clifford said that he would get Garda McLoughlin and that it would not be him who would finish her off The evidence also suggested that there were other members of the public present in the public office of the garda station on the occasion in question The Gardaí concerned accepted in cross examination that none of those other persons attempted to become involved in the incident Rather those persons shied away from the confrontation The Gardaí also accepted that none of the Gardaí present would have breached the peace in response to Mr Clifford s behaviour In those circumstances at the close of the prosecution case it was submitted on behalf of Mr Clifford that there was no evidence on which a court could find either directly or by inference that Mr Clifford intended to provoke a breach of the peace or that he was reckless as to whether a breach of the peace might have been occasioned 2 2 As already noted the District Judge declined the application for a direction made on behalf of Mr Clifford and in circumstances where Mr Clifford did not tender any evidence either by himself or on his behalf the District Judge held that it had been proved beyond reasonable doubt that Mr Clifford had committed the offence as charged 2 3 So far as that charge is concerned the issues referred to the High Court for its opinion under the case stated procedure were as follows a Where a person is charged with an offence contrary to Section 6 of the Criminal Justice Public Order Act 1994 was the Prosecution obliged to prove by way of evidence that the Appellant having used or engaged in threatening abusive or insulting words or behaviour i intended to provoke a breach of the peace as a consequence of that behaviour or in the alternative ii was reckless as to whether a breach of the peace might have been occasioned as a consequence of that behaviour b Where a person is charged with an offence contrary to Section 6 of the Criminal Justice Public Order Act 1994 was I entitled to infer an intention and or recklessness to the occasioning of the breach of the peace in the circumstances of the present case where the evidence was that no such breach was in fact likely to occur 2 4 Against that background it is necessary to turn first to the text of the section itself 3 Section 6 3 1 The text of s 6 1 of the Criminal Justice Public Order Act 1994 is as follows 6 1 It shall be an offence for any person in a public place to use or engage in any threatening abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned 3 2 It is clear therefore that the answer to the first question posed by the District Judge must be yes The section requires that words or behaviour as specified be established but also requires that it be proved that the relevant behaviour was carried out either with intent to provoke a breach of the peace or in circumstances where the alleged perpetrator was reckless as to whether a breach of the peace might be occasioned Charleton J in the High Court correctly concluded that the section was to be construed in that fashion There was no controversy before this Court but that Charleton J s conclusion in that regard was correct 3 3 The real question which arises on this appeal is as noted by the District Judge in the second question referred as to whether the District Judge was entitled to infer either intention or recklessness where the evidence was that no breach of the peace was in fact likely to occur 3 4 It is important to emphasise that the issue which was before Charleton J in the High Court and which is before this Court on appeal is not as to whether the District Judge was factually correct to make a finding either of intent or recklessness but rather whether it was open on the evidence to the District Judge to reach such a conclusion If it were open to the District Judge to find either the necessary intent or recklessness then the proper means for dealing with any concern which Mr Clifford might have had as to whether the District Judge s conclusion on that question was in fact correct on the merits was by an appeal to the Circuit Court rather than by case stated That procedural distinction is no mere technicality The purpose of the case stated procedure is to deal with a point of law arising in in a case such as this the District Court so that the point can be definitively determined by the High Court or if necessary on appeal from the High Court by this Court On the other hand an appeal on the merits by way of complete re hearing is open to any accused convicted in the District Court The distinction between an appeal and a case stated is therefore one of substance rather than technicality Those aggrieved by a decision of a District Judge on the merits of the facts have their remedy in an appeal to the Circuit Court where all the witnesses are reheard Those who feel that the District Judge is wrong in law have the option in addition to or instead of an appeal of seeking as Mr Clifford has done a case stated But the case stated procedure is confined to points of law Where therefore the issue is as to whether a District Judge was correct in reaching a conclusion on the evidence that a particular charge had been made out the issue of law likely to arise and which did arise in this case is solely as to whether as a matter of law it was open to the District Judge to reach such a conclusion Provided it was so open to the District Judge it is no function of either the High Court or this Court to form a view as to whether the District Judge was right on the merits 3 5 The net question to be answered on this appeal under this heading is therefore as to whether Charleton J was correct to hold that it was open to the District Judge to conclude that the offence had been made out on the basis of the evidence before him In that context it is next appropriate to turn to the way in which this issue was dealt with by the trial judge 4 The Public Order Offence The High Court Judgment 4 1 Following an outline of the facts and a brief analysis of the development of the law on breach of the peace Charlton J turned to an examination of the concepts of intention and recklessness in criminal law being the necessary degrees of culpability for the s 6 offence The trial judge punctuated his succinct elucidation of the law on these points with helpful analogies to more fully explain these concepts 4 2 Charlton J held that prior to a s 6 conviction based on intent the court should be satisfied beyond reasonable doubt that in doing what he did by way of abusive words or behaviour or other conduct within the section the accused s purpose was to provoke a breach of the peace On the other hand Charlton J noted that recklessness can be defined as subjectively taking a serious risk involving high moral culpability that his conduct will bring about the wrong defined by the charge For an accused to be reckless it must occur to the mind of accused that his conduct will bring about the consequence impugned but nonetheless he proceeds to act On his view of the evidence available Charleton J was satisfied that there was ample evidence upon which both the external and mental elements of the offence could be found to have been proved by direct testimony or inference 5 The Public Order Offence Discussion 5 1 The starting point of any analysis of the evidential requirement which must be met in order to permit a conviction for an offence under s 6 is to note that the focus of the section is on the intent or recklessness of the accused rather than the actual outcome of the accused s actions While therefore the fact that no breach of the peace was actually occasioned or indeed might have been likely to have been occasioned is part of the overall circumstances which any decider of fact has to take into account it is far from decisive 5 2 Against that background it is necessary to address some of the English authorities relied on by counsel for Mr Clifford Particular reliance was placed on the decisions in Marsh v Arscott 1982 Cr App R 211 and D P P v Orum 1989 1 W L R 88 In Marsh the question was whether the defendant s abusive language and behaviour was likely to occasion a breach of the peace under s 5 of the United Kingdom Public Order Act 1936 in circumstances where the only witnesses to the behaviour concerned were police officers McCullough J concluded at p 216 In the circumstances here assuming the defendant to have been acting unlawfully in using threatening words and behaviour no breach of the peace was likely to have been occasioned No other person was likely to have broken the peace and all that the police were likely to do was arrest him as they did 5 3 The above passage was quoted with approval by Glidewell L J in D P P v Orum which concerned the similar but separate question of whether a police constable was a person likely to be caused harassment alarm or distress contrary to s 5 1 a of the Public Order Act 1986 which replaced the 1936 Act Glidewell L J concluded at p 93 I find nothing in the context of the Act of 1986 to persuade me that a police officer may not be a person who is caused harassment alarm or distress by the various kinds of words and conduct to which section 5 1 applies I would therefore answer the question in the affirmative that a police officer can be a person who is likely to be caused harassment and so on However that is not to say that the opposite is necessarily the case namely it is not to say that every police officer in this situation is to be assumed to be a person who is caused harassment Very frequently words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom It may well be that in appropriate circumstances magistrates will decide indeed they might decide in the present case as a question of fact that the words and behaviour were not likely in all the circumstances to cause harassment alarm or distress to either of the police officers That is a question of fact for the magistrates to be decided in all the circumstances the time the place the nature of the words used who the police officers are who else was present and so on 5 4 McCullough J in Orum noted that the amendment to the 1986 Act meant that it was not the likely physical reaction to the conduct complained of but the likely mental reaction to it which now mattered He did however add that It is improbable in the extreme that any police officer would ever be provoked by threatening abusive or insulting words or behaviour to cause a breach of the peace but it is by no means impossible that such an officer may not feel harassed alarmed or distressed as a result of such words or behaviour This distinguishes the present case from Marsh v Arscott 5 5 First it must be noted that the precise statutory provisions applying in England and Wales are not identical to the Irish provisions Section 5 of the United Kingdom Public Order Act 1936 which was in issue in Marsh provided Any person who in any public place or at any public meeting uses threatening abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned shall be guilty of an offence However as noted above s 5 of the Public Order Act 1986 was in issue in Orum This section titled Harassment alarm or distress provides 1 A person is guilty of an offence if he a uses threatening abusive or insulting words or behaviour or disorderly behaviour or b displays any writing sign or other visible representation which is threatening abusive or insulting within the hearing or sight of a person likely to be caused harassment alarm or distress thereby 2 An offence under this section may be committed in a public or a private place except that no offence is committed where the words or behaviour are used or the writing sign or other visible representation is displayed by a person inside a dwelling and the other person is also inside that or another dwelling 3 It is a defence for the accused to prove a that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment alarm or distress or b c that his conduct was reasonable 5 6 In any event I am not satisfied that the somewhat absolutist view which is inherent in those English authorities represents the law in this jurisdiction It must of course be hoped that by virtue of their training and character members of An Garda Síochána would only act in a legitimate and proportionate manner when provoked It must therefore be hoped that the use of even outrageous behaviour to An Garda Síochána would not in fact provoke a breach of the peace involving the Gardaí themselves However as pointed out earlier the real question is not as to whether it is likely that a breach of the peace would in fact be provoked but rather whether such was the intention of the alleged offending party or whether the alleged offending party was reckless as to the consequences of his behaviour in relation to provoking a breach of the peace The fact that all responsible citizens might hope that the Gardaí would not respond to such behaviour by becoming themselves involved in a breach of the peace does not mean that there may not be circumstances where

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/2e9a58dcab6d4df680257c1400573d9d?OpenDocument (2016-02-09)
    Open archived version from archive


  • Counsel in relation to the consideration of the possibility of applying for a certificate pursuant to Section 51 of the Illegal Immigrants Trafficking Act 2004 to appeal one or more cases to the Supreme Court In fact a definite decision was later reached to apply for a certificate in relation to two of the cases involved Igbinoba and Rajib one of which my firm was not the Solicitor on record for namely Igbinoba A decision had been made to apply for a certificate in relation to these cases but on or about the 6th November 2009 judgement was handed down in the case of Olunloyo by Cooke J which had been the first case of the series heard As a result of further considerations by Junior and Senior Counsel in the light particularly of the Olunloyo decision it was decided ultimately not to make any application for a Certificate This decision was arrived at on Wednesday 18th November 2009 the day Justice Cooke had fixed at the request of the Applicants a time for application for a certificate In the circumstances no application for a certificate was made Counsel for the appellants subsequently indicated that in other cases no order for costs would be sought where the cases were withdrawn on or before the 9th December 2009 and I am currently obtaining instructions from numerous clients in relation to the said offer and anticipate that a substantial number of cases will be withdrawn to take advantage of the offer in the circumstances that have now arisen The above is the general background to the position that is now current and I set out hereunder my response firstly to the Affidavit of Majella Donoghue filed herein In relation to Paragraphs 3 and 4 of the Affidavit of Majella Donoghue I say that the facts therein are true and accurate but the interpretation of the law is a matter for legal argument in any particular case In relation to Paragraph 8 of the said Affidavit under reply I say that Notice of Appeal to the Refugee Appeals Tribunal was lodged without prejudice to the application for Judicial Review I say that reliance was being placed in this case and intended to be placed in all of the other cases against ORAC listed in the current term on the fact that the Statutory Instrument applied to the particular decision and that there was no application of the said regulations applicable in the cases comprising what is described as the Kayode Nganzunu line of case law In relation to Paragraph 9 of the Affidavit under reply I say that my advice from Counsel was that in view of the judgments already given and the cases that had already been heard and the general impression that there were more than enough test cases and being conscious of the scarce resources of the Court together with our duty to act responsibly that it would be well to adjourn some of the cases given that the facts and arguments did not differ significantly This advice was partly on the basis of the Okoh judgement sic handed down that day My instructions from my client in the light of that advice was to withdraw the case unless an adjournment would be granted With regard to Paragraph 10 of the Affidavit under reply I say that on the 16th October 2009 the Applicant s Counsel Mr Ian Whelan indeed agreed that there did not appear to be an issue in the case which had not already been decided by a number of cases This I am informed by Counsel referred as far as Mr Whelan was concerned to cases which had been heard this term i e the test cases In relation to Paragraph 12 of the Affidavit under reply I say that the so called Kayode principles were not applicable to this case insofar as these cases were distinguishable by virtue of the statutory instrument point I say that the letter of the 10th July 2009 from my firm to the Chief State Solicitor exhibited in the affidavit under reply does seek to explain why this case fell outside those principles in that regard I say that it is correct to say that in a number of similar cases costs have been awarded to the Respondents but no application has been made to date pursuant to Order 99 Rule 7 of the Rules of the Superior Courts and no indication was given until 6th November 2009 that such application was intended to be made 27 Murray J pointed out that the Kayode principles were not relevant 28 Counsel for the respondent referred to the issue of the withdrawal of the case without sufficient explanation and argued that that was not misconduct He stated that they had answered this in their explanation He submitted that in a wasted costs case one must identify action or actions of a solicitor that are grossly negligent He submitted that the reasons a case may be withdrawn may be connected to client privilege He pointed out that they were not required to give a full explanation when withdrawing the case He submitted that it was unsatisfactory when a court day is lost but that what happened here was not misconduct by a solicitor who was acting on the advice of counsel Decision 29 This case was one of many hundreds in the Asylum list On the 15th June 2009 a practice direction was issued and applied by the judges of that list as to asylum cases against the ORAC It permitted judicial review cases to be withdrawn with no costs awarded against the applicants The respondent did not wish to withdraw her case and in a letter of the 9th July 2009 the solicitors for the respondent pointed to that fact and further that the case could be distinguished from recent cases 30 Having referred to the practice direction the letter of the 9th July 2009 from the solicitors for the respondent stated We are instructed by our client through her next friend that she wishes to proceed with the hearing of her application for leave to apply for Judicial Review in the above proceedings We would point out that it is our view that this case may be distinguished from the various recent cases relating to challenges by way of Judicial Review to decisions of the Refugee Applications Commissioner We refer to the decisions in the High Court cases of Nganzumu Diallo Akintunde Ajoke Nnauma and the Supreme Court decision in the case of Kayode As we see it the common factor running through these cases is that there was no finding made that any of the decisions in those cases were reached in breach of fair procedures or natural justice or in breach of any other requirement of the law In the case of Nganzumu Mr Justice Hedigan expressed the view that only in rare and exceptional circumstances should relief be granted by way of Judicial Review and provided an example of such circumstance i e where in certain circumstances no oral hearing was available to an applicant on appeal It was however not stated in that case or in the other cases mentioned that a breach of fair procedures or natural justice of sufficient significance in arriving at a decision could not be a rare and exceptional circumstance such as might influence the High Court to exercise it s discretion and grant leave review Furthermore in the more recent case of Ojuroya the Honourable Mr Justice Cooke stated as per stenographer s note approved Judgement not yet available It is sufficient to say that the court considers that it is now settled law that consistently with the scheme and legislative intention of the 1996 Act this court should intervene to review a section 13 report and recommendation in advance of a decision on appeal by the RAT only in the rare and exceptional cases where it is necessary to do so in order to rectify a material illegality in the report which is incapable of or unsuitable for rectification by the appeal which will have continuing adverse consequences for the applicant independently of the appeal or is such that if sought to be cured by the appeal will have the effect that the issues or that some wrongly excluded evidence involved will not be reheard but will be examined only for the first time on the appeal Furthermore we are of the view that any comments of the High Court contained in the above cases which could be interpreted as to mean that Judicial Review should not be granted in cases where there has been a breach of natural justice or fair procedures and we do not concede that there are any would be necessarily obiter given the findings that thee were no such breaches Indeed this was the view taken by the Respondents in their written Submissions in the applications made for a certificate to appeal in the cases of Nganzumu and Nnauma We are of the view that there will be continuing adverse consequences for the Applicant independent of any appeal in that should her appeal be unsuccessful then the Section 13 Report will be relied on by the Minister in any subsequent application for leave to remain on Humanitarian Grounds or Subsidiary Protection pursuant to S I 518 2006 We are of the view that in the instant case there have been breaches of natural justice fair procedures and lawful obligations in particular EU Eligibility for Protection Regulations which in our view should bring this case within the category of case in which it is open to the High Court to exercise its discretion and grant leave review In particular and without prejudice to the generality of the foregoing we respectfully refer you to the Statement Required to Ground application for Judicial Review herein There are several main grounds for complaint made by our client in the within proceedings inter alia Breach of Audi Alterem Partem wrongful reliance on assistance that might be available from NGO s in Nigeria failure to assess the effectiveness of any State protection that might be available disregard of the minimum standards required in assessment of the claim pursuant to S I 518 2006 together with the other grounds set out in our client s Statement of Grounds herein The applicant s claim was not properly considered leading inevitably to a situation where if appealed at this juncture the Applicant s claim would effectively be heard only for the first time We feel that there has been a material illegality in failing to apply the Regulations referred to above which would be incapable or unsuitable to be dealt with on appeal It is our view that individually or cumulatively these complaints if upheld or some of them may take this case into the category of cases where the discretion of the court might be exercised in favour of Judicial Review and we are therefore not in a position to advise our client that it would be in her best interests to accept the offer made that the case be withdrawn with no order as to costs and accordingly on our client s instructions same is rejected 31 The facts of the case have been rehearsed previously On the day of the hearing of the case there was an application on behalf of the respondent for the case to be adjourned and when that was not acceded to the case was withdrawn The issue of costs was adjourned 32 No issue of wasted costs was raised that day The misconduct alleged in the application was non compliance with the practice direction and proceeding with the case until the day set for the hearing However it was deposed that the respondent wished to proceed with the case and that it was believed that the case was distinguishable from recent decisions and further that the solicitor was acting on the advice of counsel Consequently issues of client s instructions and privilege arise also 33 In these circumstances the learned High Court judge refused to make an order of wasted costs against the solicitor for the respondent as detailed previously 34 Order 99 rule 7 of the Rules of the Superior Courts states If in any case it shall appear to the Court that costs have been improperly or without any reasonable cause incurred or that by reason of any undue delay in proceeding under any judgement or order or of any misconduct or default of the solicitor any costs properly incurred have nevertheless proved fruitless to the person incurring the same the Court may call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and his client and also if the circumstances of the case shall require why the solicitor should not repay to his client any costs which the client may have been ordered to pay any other person and thereupon may make such order as the justice of the case may require The Court may refer the matter to the Taxing Master for inquiry and report and may also nominate a solicitor to attend and take part in such inquiry Notice of the order shall be given to the client in such manner as the Court may direct Any costs of the solicitor nominated as aforesaid shall be paid by such parties or out of such funds as the Court may direct or if not otherwise paid may be paid out of such moneys if any as may be provided by the Oireachtas 35 The law as to a wasted costs order was set out comprehensively by Finnegan P in Kennedy v Killeen Corrugated Products Limited 2007 2 I R 561 In that case Finnegan P described the ambit of such an order The inherent jurisdiction of the High Court over solicitors has not been affected by the Solicitors Acts 1954 to 2002 Solicitors Act 1954 s 14 3 Order 99 r 7 of the Rules of the Superior Courts 1986 has its origin in the exercise of that jurisdiction The courts have fixed solicitors personally with costs in a wide variety of circumstances acting for either plaintiff or defendant in an action without authority joining a plaintiff without his authority acting for a non existing plaintiff defending an action with knowledge that no defence is possible failure to deliver bills of costs acting against a former client instituting fraudulent proceedings instituting a collusive action instituting a frivolous and vexatious action unreasonably pleading fraud and undue influence In short the jurisdiction has been exercised where there has been improper conduct during proceedings Finnegan P analysed leading cases on the matter and he held On my review of the authorities I am satisfied that the power of the court to make an order under Order 99 Rule 7 whether as to costs as between the solicitor and his own client or an Order that the solicitor personally bear the costs awarded against his own client depends upon the solicitor being guilty of misconduct in the sense of a breach of his duty to the court or at least of gross negligence in relation to his duty to the court In the present case I am satisfied that the conduct of the solicitor falls far short of this requirement In particular I have regard to the circumstance that the solicitor acted on the advice of counsel While acting on such advice would not justify a breach of duty to the court it will in general be an answer to a charge of negligence Put at its highest in the present case the solicitor has been guilty of negligence but not of negligence which could be characterised as gross In these circumstances the jurisdiction to make the Order whether that jurisdiction be punitive compensatory or both did not arise and the Order ought not to have been made 36 I adopt and apply the analysis of Finnegan P In so doing I would dismiss the appeal 37 In this case there are several relevant factors in considering the applicability of an Order 99 rule 7 order These factors include the letter of the 9th July 2009 from the solicitors for the respondent as set out earlier in this judgment the description of the factual situation deposed to by Brian Burns in his affidavit of the 8th December 2009 and the fact that the solicitors for the respondent were acting on the advice of counsel 38 In addition there is the fact that this is a discretionary matter The learned High Court judge has addressed the facts and law in a reserved judgment and has exercised his discretion therein This Court is slow to interfere with the exercise of discretion by a trial judge Indeed if the learned High Court judge has been persuaded that there is no basis for an order under Order 99 r 7 it is difficult for an appeal court though not impossible to find that there has been misconduct by the solicitor 39 Solicitors must comply with practice directions Such directions are made to assist the administration of justice It is thus a duty for court officers to comply with these directions and a wasted costs order remains an important tool of a judge to enforce such directions However in this case there is a factual basis upon which the learned High Court judge could and did find that there was no misconduct The normal sanction of costs against a losing party applies However there was a foundation of facts a stateable basis upon which the learned High Court judge could find that there were no grounds for an Order 99 r 7 order 40 It is very unfortunate that there has been such delay in this case The system for addressing asylum cases is constantly being considered by those judges who take the Asylum list in the High Court and the Minister for Justice has indicated that the whole system is under review However the delay in all the circumstances is not a basis for an order under Order 99 r 7 Conclusion 41 For the reasons given I would dismiss the appeal THE SUPREME COURT Appeal No 360 12 Denham C J Murray J Clarke J Between HO an infant suing by her mother and next friend AAO Applicant Respondent and The Minister for Justice Equality and Law Reform and the Refugee Applications Commissioner Respondents Appellants Judgment delivered on the 23rd October 2013 by Denham C J 1 This is an appeal by the Minister for Justice Equality and Law Reform and the Refugee Applications Commissioner the respondents appellants referred to as the appellants against the judgment of the High Court Hogan J delivered on the 13th June 2012 and the order made on the 20th June 2012 and perfected on the 4th July 2012 2 HO an infant suing by her mother and next friend AAO is the applicant respondent in this appeal and is referred to as the respondent 3 At issue is the learned trial judge s decision not to award a wasted costs order under Order 99 rule 7 of the Rules of the Superior Courts against the solicitors for the respondent Background 4 The respondent instituted judicial review proceedings through her next friend on the 22nd April 2009 challenging a decision of the Refugee Applications Commissioner the ORAC to refuse her refugee status 5 At the time of the institution of proceedings the High Court had established in a number of cases the principle that absent exceptional circumstances a decision of the ORAC is not amenable to judicial review and that an appeal to the Refugee Appeals Tribunal was the appropriate remedy This principle had been approved by this Court in an ex tempore judgment delivered by Murray C J in Kayode v The Refugee Applications Commissioner Unreported Supreme Court Murray CJ 28th January 2009 6 The respondent was given a number of opportunities to withdraw the case without incurring any costs but did not do so When the judicial review came on for hearing at first instance in the High Court Clark J indicated that there did not appear to be any issue in the case which had not been decided Counsel for the respondent sought an adjournment which was opposed by the appellants and the High Court refused an adjournment Counsel for the respondent then withdrew the case The issue of costs was adjourned 7 The issue of costs and the wasted costs application was heard in the High Court on the 20th April 2012 by Hogan J Judgment was delivered on 13 June 2012 and this appeal is against the judgment and decision on a wasted costs order The High Court Judgment 8 The High Court refused to make a wasted costs order However it was ordered that the next friend of the respondent pay to the appellants the costs of the proceedings It was also ordered that the appellants pay to Burns Kelly Corrigan solicitors for the respondent such costs as were incurred in respect of the application under Order 99 rule 7 of the Rules of the Superior Courts 9 In considering the Court s jurisdiction to make a wasted costs order the learned trial judge stated In considering this question it must be recalled of course that it is a pure fallacy to suggest that all or even a significant majority of litigants will follow the advice of their lawyers It is for the lawyer to advise and the client to decide Once the client has decided to continue with the litigation it becomes the task of the advocate lawyer be he or she a solicitor or barrister to put the best possible case before the court for that client It is for this reason that the mere fact that a hopeless case is pursued will not in itself justify the making of a wasted costs order see e g the comments of Sir Thomas Bingham MR in Ridehalgh v Horsegfield 1994 Ch 205 234 legal representatives will of course whether barristers or solicitors advise clients of the perceived weakness of their case and of the risk of failure But clients are free to reject advice and insisted that cases be litigated It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers concerned They are there to present the case it is for the judge and not the lawyers to judge it 10 Having reviewed some legal principles Hogan J stated All of this means that the courts must be especially wary of retrospective endeavours to saddle solicitors with wasted costs orders simply because the case has been lost Obvious cases such as misconduct lack of bona fides and a vexatious desire to harass and oppress one s opponent by litigation aside the jurisdiction to impose a wasted costs order must otherwise be confined to those cases where it is obvious that the litigation is so obviously pointless The jurisdiction under 0 99 r 7 has of course been comprehensively examined by Finnegan P in Kennedy v Killeen Corrugated Products Ltd 2006 IEHC 385 2007 3 I R 561 and by Cooke J in OJ v Refugee Applications Commissioner 2010 IEHC 176 2010 3 I R 637 and Idris v Legal Aid Board 2009 IEHC 596 As one would expect these cases make it plain that the jurisdiction must be exercised sparingly 11 The learned High Court judge reviewed the situation on the asylum list where the issue had arisen as to whether a litigant after a decision by the ORAC was obliged to appeal to the Refugee Appeal Tribunal or whether alternatively there were circumstances in which an applicant could directly challenge the decision of the Commissioner in judicial review proceedings 12 Reference was made to BNN v Refugee Applications Commissioner 2009 1 I R 719 where Hedigan J held that absent exceptional circumstances a decision of the Commissioner was not amenable to judicial review and that the appropriate step was to appeal to the Refugee Appeals Tribunal 13 There were a further series of cases where the issue was considered and on the 15th June 2009 it was indicated by the Minister that he would allow applicants who had sought to challenge decisions of the Commissioner by judicial review to strike out their cases with no order as to costs Litigants who considered that they were entitled to continue their judicial review case were directed to write to the Chief State Solicitor s office At that time there were hundreds of cases listed in the judicial review list challenging decisions of the Commissioner 14 The respondent s solicitor wrote to the Chief State Solicitor stating that this case could be distinguished from the series of cases including BNN v Refugee Applications Commissioner 2009 1 I R 719 Thus the respondent continued with the judicial review application 15 Hogan J reviewed the case law It is clear in the light of this series of recent decisions that it is only in very rare and limited circumstances indeed that judicial review is available in respect of an ORAC decision The investigative procedure with which ORAC is tasked must be properly conducted but the flaw in that procedure that entitles an applicant to judicial review of an ORAC decision must be so fundamental as to deprive ORAC of jurisdiction The Courts the applicants themselves and the general public have a right to expect that no such fundamental flaw should ever occur in such an application An applicant must demonstrate a clear and compelling case that an injustice has been done that is incapable of being remedied on appeal to the RAT If such a clear and compelling case is not demonstrated the applicant must avail of the now well established procedure that has been set up by the Oireachtas which provides for an appeal to the RAT 16 The learned High Court judge stated that the very fact that the issue falls to be determined by discretionary principles rather than a jurisdictional barrier tells heavily against a successful litigant who also wishes to invoke the exceptional O 99 r 7 jurisdiction on the ground that the litigation was pointless and destined to fail Hogan J held In the present case the respondent had a tenable argument that the case fell within one of the discretionary grounds justifying intervention by way of judicial review in respect of a first instance administrative decision Given the high hurdle which such an applicant would in all likelihood face the prospects of success were admittedly not great but when viewed by reference to what Denham J expressly said in Tomlinson and impliedly so observed in 0 Donnell it cannot be said that the prospects were hopeless to the point where the further continuation of the litigation was plainly wasteful and vexatious Naturally the fact that the proceedings were abruptly withdrawn on the morning of the hearing might perhaps be thought to suggest otherwise This decision was however almost certainly taken in view of the judicial comments to the effect that the case was not particularly strong and in circumstances where discretion seemed the better part of valour But it cannot be said that the case was untenable and certainly not in the sense of being wasteful and vexatious 17 The learned High Court judge referred to the respondent s submissions of which a complaint had been made which did not refer to case law such as BNN v Refugee Applications Commissioner 2009 1 I R 719 Kayode v The Refugee Applications Commissioner Unreported Supreme Court Murray CJ 28th January 2009 or other cases dealing with the alternative remedy He stated that this is at best a reflection on the quality of the submissions but that simply because written submissions can be critiqued is not a basis for an application based O 99 r 7 18 The learned High Court judge concluded It follows accordingly that there is simply no appropriate basis on which a wasted costs order could possibly be made against the respondent s solicitors While I will naturally award the appellant the costs of the proceedings against the applicant I will refuse to make the wasted costs order sought pursuant to O 99 r 7 against the respondent s solicitors for the reasons just stated Notice of Appeal 19 The appellants appealed against the judgment and order of the High Court The following grounds of appeal were filed i The learned High Court judge failed to consider that by unduly prolonging this action without proper justification the conduct of the solicitor for the respondent was misconduct within the meaning of Order 99 rule 7 and resulted in costs being improperly or without reasonable cause incurred by the appellants ii The learned High Court judge erred in his conclusion that the solicitor for the respondent had complied with the direction of the High Court in its letter dated 10th July 2009 in circumstances where said letter failed to properly set out the grounds on which this case could be continued in direct contravention of said direction and where said case was then abruptly withdrawn on the morning of the hearing 16th October 2009 with no proper or adequate explanation iii The learned High Court judge failed to properly consider that these proceedings were wastefully continued in circumstances where many opportunities were afforded to the respondent to withdraw before the appellants had incurred substantial costs iv The learned High Court Judge failed to take into account that this case was one of a category of cases a challenge to a decision of the Refugee Applications Commissioner which the High Court and the Supreme Court had ruled could only succeed in very rare circumstances and which case was unduly prolonged without proper justification for such continuance v The learned High Court Judge failed to consider that the solicitor for the respondent failed to properly comply with the High Court direction that was made to promote the active management of the list in circumstances where the failure to comply with the direction led to the wasting of court time and resources and was a dereliction of the solicitor s duty to the Court vi Such further and other grounds of appeal as the appellants may with leave of this Honourable Court seek to advance at the hearing of this appeal Submissions 20 Written and oral submissions were given to the Court Submissions on behalf of the Appellants 21 Extensive written submissions were filed on behalf of the appellants and were the foundation of the oral submissions Ms Moorhead S C counsel for the appellants pointed out that a day of High Court time was wasted on the 16th October 2009 Counsel stated that there was no suggestion that the solicitor for the respondent was grossly negligent but that Order 99 r 7 also covers breach of duty to the Court When Mr Byrne wrote the letter on the 10th July 2009 he said that the case involved fair procedures issues but when the submissions were lodged they did not deal with the narrow category of cases which were the exception under the law on challenging a Commissioner s decision This counsel submitted was misconduct Counsel said that if the case had gone to hearing on the 10th July 2009 an Order 99 r 7 order would not have been sought But it had been said that the respondents believed they had a case that they would argue it that it came within the exception to the law and on the morning of the hearing they withdrew it without explanation Counsel submitted that that was a breach of duty to the Court 22 In written submissions it was stated that the law on challenging ORAC s decision in judicial review had been well settled and was well known to Burns Kelly Corrigan Solicitors in April 2009 when these proceedings were issued It was submitted that the letter written on the 10th July 2009 was vague and set out no basis for the continuation of the case It was submitted that the High Court did not adequately consider the vagueness of the letter which appeared to be a pro forma letter Criticisms were raised as to the submissions filed on behalf of the respondent It was pointed out that when Clark J on the hearing date of the application stated that she did not see any issue in the case that had not already been determined in other cases the respondent s counsel sought an adjournment It was only when an adjournment was refused that the case was withdrawn and that no explanation was given Further it was submitted that the learned High Court judge did not consider the evidence of misconduct or default or negligence that could be inferred from the standard form letters sent by Burns Kelly Corrigan solicitors to the appellants in a large number of cases which showed that a failure to obey the rulings of the court in this case was not an isolated incident and they showed that the said solicitors failed to engage with the relevant case law It was submitted that the directions by the Asylum Judges had the important purpose to distinguish between those claims that had merit and those which had not and to free up the lists so that genuine stateable cases could be heard promptly There was evidence in the High Court that on the 26th June 2009 Burns Kelly Corrigan solicitors represented applicants in 282 ORAC cases which were awaiting hearing in the court lists Only 19 were withdrawn in June and July pursuant to the court direction although 6 were withdrawn in October either on the day of the hearing or shortly prior thereto It was submitted that this evidence was not considered in the High Court judgment It was also submitted that the respondent had limited means and that there was little or no prospect of ever satisfying an order of costs against her Also it was submitted that this Court should consider the fact that the respondent refused to avail of the offer in June to withdraw the case with no order of costs against her It was submitted that it was difficult to perceive of any ground on which this litigation was legitimately pursued It was submitted that the conduct of Burns Kelly Corrigan solicitors came clearly within the principles set out in O J v Refugee Applications Commissioner 2010 3 IR 637 and Idris v Legal Aid Board 2009 IEHC 596 in that the litigation was vexatious and wasteful It was submitted that the litigation had no purpose other than that of prolonging the process and postponing a final determination of the asylum application It was also submitted that a wasted costs order should be imposed as the conduct complained of falls within the principles of Myers v Elman 1940 AC 282 as explained by Lord Wright it was conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty to aid in promoting in his own sphere the course of justice Submissions on behalf of the Respondents 23 Feichín McDonagh S C counsel on behalf of the respondent relied on the written submissions filed It was submitted as this Court has frequently stated that when a judge of the High Court exercises his discretion in relation to an order for costs this Court is slow to intervene It was submitted that the learned High Court judge correctly identified the relevant legal principles and correctly determined that there was no reasonable basis in law upon which an award of costs should be made against the solicitor acting for the respondent Alternatively it was submitted that even

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/b040823747dadb7580257c0d00561322?OpenDocument (2016-02-09)
    Open archived version from archive


  • consider the expression rates and other taxes and charges The appellants rightly do not claim that the payments are either a form of rates or taxes Clearly they are not Neither however is the word charges even taken on its own apt to describe the payments The word charge in its ordinary or primary meaning suggests a payment made under compulsion However the most compelling point is that in context the word charges is used in close association with both rates and taxes The respondent invokes the principle of interpretation noscitur a sociis Words must be interpreted in the context in which they appear This is an obvious case for application of the more particular aspect of that principle the ejusdem generis rule of interpretation A word with a wider or more general meaning will be treated as limited by the more precise words preceding it The section draws a distinction between the average annual cost of repairs insurance and other expenses if any that would be necessary to maintain the property in that state on the one hand and rates and other taxes and charges on the other The second category establishes a genus permitting deduction of deduction of payments made to the State or public authorities by way primarily of taxation It extends to rates generally understood as referring to payments made to local authorities to support the provision of services The term charges must be interpreted in the light of the two preceding subjects 20 In my view the payments made by the operators under the agreement are so different in their nature from any of the three subjects of payment rates and other taxes and charges that in my view it does violence to the language and intention of the provision to treat them as amounting to a charge They are computed in order to arrive at a sharing of the proceeds of the tolls One share is retained by the toll authority The other share is paid to the National Roads Authority 21 Secondly I am also satisfied that the payments are not made by or under any enactment in respect of the property No enactment provides for their payment They are not paid in respect of the property The payments are made pursuant to agreements freely entered into They are made in particular by virtue of the provision of s 63 1 which permits the Authority to enter into agreements for the payment to or retention by the person of all or part of the proceeds of tolls in respect of the toll road the subject of the scheme The appellants relied at the hearing on s 63 5 which provides that t he parties to an agreement under this section shall carry out the agreement in accordance with its terms and conditions and a road authority shall have all such powers as may be necessary for that purpose In my view that provision does not alter the fact that the payments are made under the agreement Indeed it tends if anything to emphasise that fact 22 For these reasons I would dismiss the appeal from that part of the judgment of Charleton J which held that the payments of parts of the tolls collected by them made by the respective appellants under the agreements were deductible pursuant to s 48 3 THE SUPREME COURT Appeal No 306 307 2008 Fennelly J Clarke J MacMenamin J Between Westlink Toll Bridge Limited Appellant and Commissioner of Valuation Respondent and Fingal County Council Notice Party and Between Celtic Road Group Dundalk Limited Appellant and Commissioner of Valuation Respondent and Louth County Council Notice Party JUDGMENT of Mr Justice Fennelly delivered the 23rd day of October 2013 1 I regret that I find myself unable to agree with the judgment which is about to be delivered by MacMenamin J and with which Clarke J agrees on one point only That is on the question whether payments made by the appellants to the National Roads Authority pursuant to agreements with that body are deductible when calculating net annual value pursuant to s 48 3 of the Valuation Act 2001 This being a dissenting judgment on that point I can express myself briefly 2 I agree with the judgment of MacMenamin J on the other question namely the appellant in the second case mentioned above Celtic Road Group Dundalk Limited is entitled to deduct the costs of repair and maintenance incurred by it of the entire length of road 54 7 kilometres thus not limited to the cost of maintaining the tolled stretch of the M1 motorway from Gormanstown Co Meath to Monasterboice Co Louth a distance of 21 74 km 3 The first question at issue is whether the royalty payment made to the National Roads Authority by each of the appellants from the tolls collected by it falls within the scope of the expression all rates and other taxes and charges if any payable by or under any enactment in respect of the property 4 In my view the royalty payment is not a charge and is certainly not payable by or under any enactment 5 What used to be called a rateable hereditament has become since the passing of the Valuation Act 2001 relevant property see s 3 and Schedule 3 of the Act 6 The Local Government Toll Roads Act 1979 introduced the regime for charging tolls on new highways The relevant legislation is now found in the Roads Act 1993 7 There are three relevant sets of provisions Firstly there is a power to make schemes Section 57 1 of the Act of 1993 empowers a road authority to make a scheme a toll scheme for the establishment of a system of tolls in respect of the use of a public road Section 57 1 d provides that such a toll scheme shall include an estimate of the amounts of the tolls that it is proposed to charge in respect of the use of

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/51d842f35f131a2d80257c0e0057346a?OpenDocument (2016-02-09)
    Open archived version from archive


  • most exceptional circumstances the Court should not hear and determine an issue which has not been tried and decided in the High Court To that fundamental rule or principle there may be exceptions but they must be clearly required in the interests of justice This case can not in my view however provide such an exception Part of the rationale for the decision in K D was because of the run of case and the nature of the evidence which had actually been adduced on the issues put before the High Court The same is true here 47 In I v The Minister for Justice Equality and Law Reform 2003 IESC 42 Keane C J Denham Murray McGuinness and Hardiman JJ concurring similarly deprecated the possibility that the court should be asked in effect to act as a court of first instance and to deal with issues where it has not had the benefit of a reasoned considered judgment by a High Court judge in dealing with the point which is now sought to be advanced for the first time 48 More recently in Lough Swilly Shellfish Growers Co Operative Society Ltd and anor v Bradley and anor 2013 IESC 16 O Donnell J considered the circumstances in which the argument of an amended ground of appeal might be permissible in accordance with the provisions of the Constitution At para 27 of that judgment he said There is a spectrum of cases in which a new issue is sought to be argued on appeal At one extreme lie cases such as those where argument of the point would necessarily involve new evidence and with a consequent effect on the evidence already given as in K D for example or where a party seeks to make an argument which was actually abandoned in the High Court as in Movie News or for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued and perhaps evidence adduced In such cases leave would not be granted to argue a new point of appeal At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court or where new materials were submitted or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court or a refinement of them and which was not in any way dependent upon the evidence adduced In such cases while a court might impose terms as to costs the Court nevertheless retained the power in appropriate cases to permit the argument to be made 49 It is noteworthy however that O Donnell J added The question whether the Supreme Court is precluded from exercising such a jurisdiction either by the terms of the Constitution or the weight of authority is however a matter which it is not necessary to resolve in this case since I would not extend time for the appeal and the point which it was sought to argue on this appeal is misconceived I am not of the view that Lough Swilly radically alters the established jurisprudence When one applies the test as posited in Lough Swilly one can discern the application was doomed to failure What was being sought to be argued had not been put before the Tribunal or the High Court The case then was quite different Moreover the evidence adduced was quite different also The testimony would not and could not have addressed the issues which were sought to be advanced in this Court by the Commissioner 50 To permit the amendment would have been inconsistent with this courts purely appellate function as laid down in long established jurisprudence The application in the view of the court fell short of any exceptions to the principle which are founded in the interests of justice The incongruity of the Commissioner s position is best demonstrated by the fact that at the Tribunal the Commissioner s valuer was actually prepared to make allowance for monies spent on repairs insurance and other expenses of the public road as expenses when valuing the relevant property albeit only in respect of 21 74 km of the public roadway The position he sought to adopt in this Court would have been the polar opposite 51 Moreover I think that the position of the Commissioner was circumscribed in another way This was an appeal by way of case stated from the Tribunal as provided for in s 39 of the Valuation Act 2001 The appeal does not proceed by way of an automatic re hearing The jurisdiction of the High Court is defined by s 39 5 of the Act which provides The High Court shall hear and determine any question or questions of law arising on the case and shall reverse affirm or amend the determination in respect of which the case has been stated or shall remit the matter to the Tribunal with the opinion of the Court thereon or may make such other order in relation to the matter as the Court thinks fit emphasis added 52 The jurisdiction of this Court is in turn delimited by s 39 7 which provides an appeal shall lie to the Supreme Court from the decision of the High Court In my view the Tribunal was not asked to make a decision on the argument sought to be raised by the Commissioner The case stated did not address the issue The new matter did not arise on the case Thus neither the High Court nor this Court could embark upon a consideration of that point whether to reverse affirm or amend the determination The point is a simply one of jurisdiction Neither this Court nor the High Court would have had jurisdiction to entertain the point as quite simply it did not come within the terms of s 39 5 of the Act of 2001 There had been no determination on the issue in the case stated This court had no jurisdiction to entertain the point on appeal The remaining cross appeal 53 It now remains to determine whether the Tribunal and the High Court were correct in determining that the costs of maintaining the whole of the M1 were deductible for the purposes of calculating its net annual value Again this matter turns on the interpretation of ss 48 1 and 48 3 of the 2001 Act which have been cited earlier in paras 7 and 8 of this judgment Central to this issue is the concept of relevant property in s 48 1 of the 2001 Act Further relevant statutory provisions 54 Section 3 of the 2001 Act provides that relevant property shall be construed in accordance with the Schedule 3 to that Act That schedule states Property of whatever estate or tenure which falls within any of the following categories and complies with the condition referred to in paragraph 2 of this schedule shall be relevant property for the purposes of this Act emphasis added Below as one of the categories is to be found h tolls 55 Paragraph 2 of Schedule 3 provides The condition mentioned in paragraph 1 of this Schedule is that the property concerned a is occupied and the nature of that occupation is such as to constitute rateable occupation of the property that is to say occupation of the nature which under the enactments in force immediately before the commencement of this Act whether repealed enactments or not was a prerequisite for the making of a rate in respect of occupied property or b is unoccupied but capable of being the subject of rateable occupation by the owner of the property emphasis added Submissions of the Commissioner 56 Counsel for the Commissioner contends that subparagraph a above is applicable here and that therefore occupation of the property means occupation the nature of which under the enactments in force immediately before the commencement of the 2001 Act whether or not repealed was a prerequisite for the making of a rate in respect of occupied property 57 Counsel argued that the occupied property here is both the tolls and associated toll roads and that the Tribunal and High Court transformed the definition of tolls to mean tolls and the public road associated with those tolls In support of this contention counsel points out that the Tribunal findings refer to the property concerned in these appeals as being the tolls arising from that section of the M1 motorway and approach roads between Gormanstown Interchange in Co Meath and the Monasterboice Interchange in Co Louth together with the ancillary buildings in connection therewith It is submitted that this interpretation accords with the decision of this Court in Dublin City Council v Westlink Toll Bridge Limited 1996 1 I R 487 The effect of this submission would be that allowance would be made only for the shorter section of the motorway not its entirety Corporeal and incorporeal property 58 I am unable to accept this submission What is fundamental here is the principles of interpretation to be applied They have been summarised earlier and apply here also Applying those appropriate principles of construction nowhere does s 48 1 seek to differentiate between corporeal and incorporeal property Instead the all encompassing term relevant property is deployed the subsection provides that the value of that property is to be determined by estimating the net annual value of the property the amount so estimated is to be its value Section 48 3 draws no distinction between corporeal and incorporeal property either That subsection provides that the net annual value is to mean in relation to a property the rent for which one year with another the property might in its actual state be reasonably expected to let from year to year on the assumption that the probable annual costs of repairs insurance and other expenses if any would be necessary to maintain the property The terms in its actual state and repairs are to my mind determinative 59 In my view the contention advanced by the Commissioner depends on a process of reasoning which entails reaching the conclusion that the annual costs of repairs is not properly allowable in determining net annual value of the toll The Oireachtas did not lay down any such rule whether for tolls or any other form of incorporeal property listed in para 1 of Schedule 3 Moreover the wording of s 48 3 does not allow for such a conclusion 60 Each term of s 48 3 is highly relevant It provides that the average annual cost of repairs which the tenant must bear is that which would be necessary to maintain the property in that state The phrase in that state must be referable back to the term actual state also used in s 48 3 which is to be seen as part of the premise on which the yearly rent is based I consider that the terms in that state and actual state must both be construed as referring to both the corporeal and incorporeal property It means in real terms that which is necessary to maintain the status quo No alternative interpretation is allowed for within the terms of the Act Accordingly I am forced to conclude that the term actual state cannot simply mean that one is limited to assessing the physical condition of the corporeal property seen in isolation from its incorporeal dimension 61 It is of course true that incorporeal property is necessarily a legal construct In Imperial Tobacco Company of Great Britain and Ireland Ltd v Pierson 1961 1 A C 463 a majority of the House of Lords held that a right to fix an advertising sign on a building was to be valued by reference to that incorporeal right without regard to the physical work to be carried out on foot of it Viscount Simonds explained that the right which for rating purposes is deemed to be a separate one is the right to use any land in its extended meaning for the purpose of exhibiting advertisements which is let out or reserved To ascertain what that right was necessitated looking at the terms of the document by which the grant was made or reserved and that the value was to be the value of the rights so granted or reserved He cites at p 472 a sentence from the rating tribunal in that case While it is of course that the value must be ascertained as of the date of the proposal it is the value of the grant and not of some other grant The grant has its value irrespective of whether it is in fact exercised and it is a grant which is the rateable hereditament not the exercise of the grant 62 Later he expanded on this point saying the appellants are not for rating purposes in occupation of a hereditament consisting of a structure Whether there is a structure there or not they are rateable in respect of a right which is deemed to be a separate hereditament in their occupation emphasis added 63 Lord Reid in his speech at p 474 observed to similar effect what has to be valued is not land but the appellants right to use land The only right to use land which is let out or reserved to the appellants is that given to them by their agreement with the corporation and therefore it appears to me that the sole question is what is the value of that right He explained pithily In valuing corporeal hereditaments land one takes the land as one finds it So also in valuing an incorporeal hereditament a right one must take the right as one finds it 64 In my view the situation here is that one must look to is what is provided for in s 48 3 of the Act of 2001 What is necessary to maintain the property in that state This necessitates looking to what is necessary in order to continue the appellant s incorporeal hereditament in legal existence Its continuance in being hinges on the repairs being carried out on the entire road 65 In my view it matters not whether one is speaking here of an incorporeal or corporeal hereditament What is essential to the definition is what flows from the provisions of Celtic s agreement with The National Roads Authority which stipulated that the Authority had the right to terminate the agreement in the event of Celtic s non compliance Thus Celtic s incorporeal right to collect the tolls would lapse or be terminated in the event that it failed to comply with the maintenance obligations This contractual duty is critical in defining what is necessary to maintain the property in that state Celtic s entitlement to collect the toll is solely a product of the agreement Going with the corporeal hereditament there is an obligation to maintain the entirety of the toll road failure of compliance with that legal duty would have the consequence of the failure of the incorporeal hereditament Celtic would be liable to lose the right to collect the toll Thus I conclude Celtic s entitlement to collect the toll and thus to occupy the property was and is entirely dependent upon compliance with the maintenance obligations in relation to the entire motorway 66 I do not think any distinction in principle can be drawn between the observations of Viscount Simonds and Lord Reid in Imperial Tobacco and the situation which obtains here Moreover the proposition that the obligation can be ignored in valuing the right runs counter to the terms of the contract The proposition relies upon a view as to the position of a hypothetical tenant which in my view is entirely divorced from the considerations that such hypothetical tenant would engage in when carrying out the process of valuation In real terms it would be unthinkable that a hypothetical tenant would not take the entirety of the duties and the rights into consideration The 1996 Westlink case 67 It might be said that in Dublin County Council v Westlink Toll Bridge Ltd 1996 1 I R 487 tolls were recognised by this Court as being incorporeal hereditaments The Court noted that the toll bridge operator itself argued that the toll was an incorporeal hereditament A passage from that decision must be seen in its true context At p 493 of the judgment O Flaherty J stated that the property was the tolls He stated We are concerned exclusively with the rateability of the tolls The rateability of the buildings and other structures other than the structure at which the tolls are collected is not an issue 68 When the judge stated that the Court was concerned exclusively with the rateability of the tolls and that the rateability of the buildings and other structures was not in issue he was not speaking of the broader context which is in issue here Here it is the contracts which render the right and duty an incorporeal hereditament a concept which is broader in nature than the narrow question of the rateability of the tolls used in quite a different sense in Westlink Again applying the principles of interpretation referred to earlier one must identify what there must be in order to maintain Celtic s property both corporeal and incorporeal in that state This necessitates a consideration not just of the physical element or simply the right to receive money but the entirety of the contractual arrangement The right gives rise to a duty which devolves upon the rate payer without which the rate payer would be deprived of the right to collect tolls In my view therefore the views of the learned High Court judge on this issue should be upheld allowance should be made for Celtic s liability to repair the entire length of the roadway Conclusion 69 In summary therefore I would allow the appeal against the decision of the learned High Court judge on the primary issue as set out in para 33 and dismiss the appeal against his decision as set out in para 68 of this judgment THE SUPREME COURT Appeal No 306 307 2008 Fennelly J Clarke J MacMenamin J Between Westlink Toll Bridge Limited Appellant and Commissioner of Valuation Respondent and Fingal County Council Notice Party and Between Celtic Road Group Dundalk Limited Appellant and Commissioner of Valuation Respondent and Louth County Council Notice Party Judgment of Mr Justice John MacMenamin delivered the 23rd day of October 2013 1 A number of issues are appealed to this Court on foot of a judgment delivered by the High Court Charleton J on the 11th May 2008 This was a single judgment delivered in response to two cases stated by the Valuation Tribunal The Tribunal The Tribunal delivered judgments on the 21st December 2005 on appeals brought by the two appellants Westlink and Celtic against decisions of the Commissioner of Valuation The Commissioner Section 39 of the Valuation Act 2001 empowers the Tribunal to state a case to the High Court The case stated concerned the rateable valuation of tolls 2 The first rateable property is the Westlink toll facility in Dublin where Westlink was the rated occupier At the relevant time Westlink operated the toll bridge on the M50 motorway The Commissioner revalued the hereditament after a second bridge was built beside the first one over the River Liffey Westlink appealed this revaluation to the Tribunal 3 The second toll derived from a section of the M1 motorway and approach roads thereto between Gormanstown Interchange in Co Meath and the Monasterboice Interchange in Co Louth where Celtic is the rated occupier Celtic s appeal relates to an initial rating by the Commissioner The primary issue 4 Under their agreements with the National Roads Authority the appellants are obliged to pass a proportion of their gross toll revenue to the Minister for the Environment National Roads Authority NRA These payments are referred to as royalty payments throughout this judgment The primary question to be determined is the deductibility of these payments in the estimation of the net annual value of the hereditaments for rating purposes The Tribunal found that these royalty payments were deductible However the learned trial judge held that the appellants were not entitled to deduct these royalties This determination is under appeal by the appellants The length of the roadway issue 5 A further issue arises in the Celtic appeal Under a contract with the NRA Celtic was placed under an obligation to repair the entire length of the M1 motorway However the tolled section is considerably shorter The issue then arises as to whether allowance should have been made for Celtic s liability to repair the entire length of the roadway even though the toll related that shorter section of the road between Gormanstown and Monasterboice The Tribunal found in favour of Celtic on this point and this determination was upheld by the High Court judge On this the Commissioner has cross appealed to this Court The Commissioner s application to amend the cross appeal 6 At the outset of this hearing counsel for the Commissioner sought to amend the notice of cross appeal The application was heard first For reasons set out later in this judgment this Court declined to allow the amendment The range of issues in the cross appeal can only be understood by reference to the matters more immediately addressed in this judgment to which I now turn The primary issue The relevant statutory provisions 7 Two statutes lie at the centre of this dispute The first the Valuation Act 2001 the 2001 Act provides for the method whereby the value of a hereditament is to be determined for rating purposes Section 48 1 of the Valuation Act 2001 provides as follows The value of a relevant property shall be determined under this Act by estimating the net annual value of the property and the amount so estimated to be the net annual value of the property shall accordingly be its value 8 Section 48 3 provides for the factors to be taken into account in calculating the net annual value Subject to Section 50 for the purposes of this Act net annual value means in relation to a property the rent for which one year with another the property might in its actual state be reasonably be expected to let from year to year on the assumption that the probable annual cost of repairs insurance and other expenses if any that would be necessary to maintain the property in that state and all rates and other taxes and charges if any payable by or under any enactment in respect of the property are borne by the tenant emphasis added The words emphasised in this subsection identify what matters are to be deductible in the calculation of the net annual value Allowances are made for repairs insurance and other expenses necessary to maintain the property in that state Allowance is also to be made for all rates and other taxes and charges payable under any enactment The primary issue is whether the royalties are a charge within the terms of s 48 3 9 All parties agree that the relevant provision for determining this question is s 63 of the Roads Act 1993 as amended This section provides 1 Where a toll scheme is adopted by a road authority the road authority may enter into an agreement with another person under which upon such terms and conditions as may be specified in the agreement including the payment to or retention by the person of all or part of the proceeds of tolls in respect of the toll road the subject of the scheme the person agrees to do all or one or more of the following a to pay some or all of the cost of the construction of the road b to pay some or all of the costs of the maintenance of the road c to construct or join or assist in the construction of the road for or with the authority d to maintain or join or assist in the maintenance of the road with the authority e to operate and manage including provide supervise and operate a system of tolls in respect of the use of the road the road for or with the authority f Such other things connected with or incidental or ancillary to or consequential upon the foregoing as may be specified in the agreement 2 Without prejudice to the generality of subsection 1 an agreement under this section may a provide for the application of the proceeds of tolls systems of accounting for tolls collected and the methods and times of payment of proceeds of tolls to the persons to whom they are to be paid under the terms of the agreement b specify the period for which the agreement shall have effect and provide for its termination or suspension and for matters connected with or incidental or ancillary to or consequent upon the expiration of the agreement or such termination or suspension and c provide for the giving of such security as may be specified therein i to the road authority by any other party to the agreement or ii by the road authority by any other party to the agreement in relation to the carrying out and observance by that party or authority of the terms and conditions of the agreement 3 A road authority may enter into an agreement with a party with whom it has entered into a previous agreement under this section amending the terms or conditions thereof adding thereto or deleting therefrom terms or conditions or revoking the previous agreement 4 Entry into an agreement under this section in relation to a regional road or local road shall be a reserved function 5 The parties to an agreement under this section shall carry out the agreement in accordance with its terms and conditions and a road authority shall have all such powers as may be necessary for that purpose emphasis added The ultimate question for determination in respect of the primary issue 10 Are the royalty payments identified in contracts charges payable under the enactments or are such payments simply payable on foot of private contractual arrangements entered into between the two companies and the National Roads Authority The High Court s findings on the primary issue 11 In his judgment the High Court judge focused on the concepts of a tax and a charge He pointed out that a tax had certain specific characteristics He observed at para 23 It is involuntary it may increase or decrease it may be abolished or it may be imposed at the wish of the legislature and it is inescapable once the conditions for taxation are fulfilled Fundamentally however any tax fulfils in law the characteristic that it is similar to the position of a local authority in law no tax can be levied and no other revenue can be made pursuant to an enactment unless the nature of the tax its rate and circumstances under which it applies are defined by law Here in contrast the division of the toll proceeds is pursuant to an agreement entered into following on negotiations emphasis added 12 As a result the judge held that the royalties were payable under the contract that they were private arrangements and not a tax and therefore were not deductible in calculating the net annual value The parties submissions on appeal in summary 13 The appellants contend that the contracts were made under s 63 of the Act of 1993 and that the provisions of the contracts actually reflect in large measure the provision of the section They submit that s 63 5 creates a statutory duty that the parties to an agreement to carry out that agreement in accordance with its terms and conditions Furthermore they point to the actual usage by the legislative drafters of the phrase agreement under this Section in ss 63 2 and 63 5 They contend that the trial judge conflated the consideration of net annual value with an entirely separate question of whether the costs imposed amounted to a tax 14 However the Commissioner contends that the contracts which were entered into were simply private arrangements and relies on a number of English authorities to that effect His counsel points to the fact that the 1993 Act does not specify any statutory consequences which may arise in the event of non performance of the obligation He contends s 63 5 is to be read as a whole and not broken into two parts the approach which he says is taken by the appellant Therefore it is contended that the High Court judge was correct in determining that the revenue share in respect of the operation of the toll should have been included in calculating the gross receipts for the purpose of ascertaining the net annual value of the relevant authority through recourse to what is known as the Receipts and Expenditure Method REM of valuation The contracts 15 It is necessary to turn next to the provisions of the contracts To determine whether those contracts are by or under an enactment is not of course merely a one way process of statutory interpretation It requires also a detailed examination of the inter relationship between the terms of the contracts and the relevant statutes The process requires consideration of the way in which the very terms by or under are deployed in the section One looks first to the agreements The Westlink agreement 16 The Westlink Agreement was entered into between the National Roads Authority and the company on the 7th June 2001 and was to last for 30 years This 2001 agreement referred back to an original agreement dated the 16th October 1987 in which the National Road Authority s predecessor was the County Council of Dublin For the purposes of discussion however the relevant contract is that of the 7th June 2001 17 Westlink were to procure the design construction financing maintenance and operation of the new bridge in accordance with contract documentation which was approved in advance by the National Roads Authority The company bore the entire cost of the works The National Roads Authority was relieved of any liability save as was provided for in the contract 18 Clause 4 1 of the agreement provides that Westlink is to occupy the Toll Road and shall be required to manage supervise operate and maintain a system of tolls in accordance with a new toll scheme for traffic using the toll road On collection of the toll Westlink is obliged under the contract to apply the proceeds of a toll towards meeting its financial obligations Clause 4 3 of the agreement sets out the portion of the collected tolls which is to be made payable to the Minister Where the daily number of vehicles using the roadway averages between 8 000 and 27 000 vehicles the sum to be deducted and remitted to the Minister is 30 of the gross toll revenue The deduction to be remitted then increases on a sliding scale of percentages The method of calculation places a ceiling on the amount which the rate payer may retain so that when the relevant figure exceeds 45 000 vehicles the amount payable to the Minister under the contract is 80 This ceiling is intended to prevent super profits The method by which tolls are to be paid is set out in by laws appended to the contract The Celtic Agreement 19 Celtic entered into its agreement with the National Roads Authority on the 5th February 2004 The contract differs from the Westlink agreement both because of the nature of the transaction and the nature and extent of the maintenance commitments which the company undertook Not only were Celtic to provide for the new link roads and associated bridges but also for the operation and maintenance of the entirety of the then existing M1 motorway from Hainstown to Gormanstown again for a period of 30 years The company also undertook to design contract finance operate and maintain a shorter extension of M1 motorway as part of the agreement 20 The toll scheme provided for a system of tolls in respect of the 21 74 km section of the motorway from Gormanstown Co Meath to Monasterboice Co Louth The scheme involved approved roads linking the motorway with the existing local road network identifying where toll collection facilities were to be placed Celtic is required to provide for a satisfactory residual life of the entire 54 7 km after the end of the 30 year period The Celtic agreement also provides for the share of gross toll revenue to be paid out of receipts Matters of agreement regarding valuation 21 The submissions of counsel revealed that there were significant areas of agreement between the parties It is common ground that the property to be valued must be assumed to be owned by a hypothetical landlord who wishes to let it and that there is a hypothetical potential tenant who is willing to pay rent in order to occupy it The property is assumed to be vacant and to let The object of the valuation is to ascertain the rent which would be paid for the subject property in accordance with the statutory requirements of s 48 of the Act of 2001 The property must be valued at the relevant valuation date and as it stands 22 What is the legal status of these royalty payments under the 2001 Act I now turn to consider the principles applicable in interpreting the 2001 Act The proper approach to interpreting the Valuation Act 2001 23 The High Court judgment in Nangles Nurseries v Commissioner of Valuation 2008 IEHC 73 seeks to summarise principles applicable to the interpretation of a statute such as the Valuation Act 2001 The judgment referred to the decisions of the former Supreme Court in Revenue Commissioners v Doorley 1933 I R 750 and of this Court in Inspector of Taxes v Kiernan 1981 I R 117 The principles enunciated can be found at para 39 of Nangles 1 While the Act of 2001 is not to be seen in precisely the same light as a penal or taxation statute the same principles are applicable 2 The Act is to be strictly interpreted 3 Impositions are to be construed strictly in favour of the rate payer 4 Exemptions or relieving provisions are to be interpreted strictly against the rate payer 5 Ambiguities if they are to be found in an exemption or to be interpreted against the rate payer 6 If however there is a new imposition of liability looseness or ambiguity is to be interpreted strictly to prevent the imposition of liability from being created unfairly by the use of oblique or slack language 7 In the case of ambiguity the court must have resort to the strict and literal interpretation of the Act to the statutory pattern of the Act and by reference to other provisions of the statute or other statutes expressed to be considered with it The definition of charge in s 48 24 Counsel for the Commissioner argues that the interpretative principle noscitur a sociis is applicable in this context and therefore the term charge is to be understood in the context in which it appears see the judgment of Hamilton P in United States Tobacco International Inc v Ireland 1993 I R 241 He argues that the word other in s 48 3 distributes to both taxes and charges in accordance with normal drafting practice thus it is said the expression charges is intended to include other charges imposed in a similar manner to

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/3ac6758d5bd6d6d380257c1500591fab?OpenDocument (2016-02-09)
    Open archived version from archive


  • strict construction of a penal statute seems to manifest itself in four ways in the requirement of express language for the creation of an offence in interpreting strictly the words setting out elements of an offence in requiring the fulfilment of the letter of the statutory conditions precedent to the infliction of punishment and in insisting on a strict observance of technical provisions concerning criminal procedure and jurisdiction It would appear that the principle applies not only to criminal offences but to any form of detriment At p 572 of Bennion the nature of the principle is stated thus Whenever it can be argued that an enactment has a meaning requiring the infliction of a detriment of any kind the principle against doubtful penalisation comes into play If the detriment is minor the principle will carry little weight If the detriment is severe the principle will be correspondingly powerful however it operates the principle requires that person should not be subjected by law to any sort of detriment unless this is imposed by clear words 23 In my view these principles underline and support the passage in the judgment of Kearns J in DPP v Moorehouse 2005 EISC 52 which is quoted in the judgment of Mr Justice Clarke in the present case 24 I consider that it is important in a case like the present where the construction of a statutory provision for a penalty is in issue to restate the well established and special legal provisions applicable to a statute which creates or imposes a penalty or detriment However in the circumstances of this case I do not believe that question of doubtful penalisation arises because I think that properly construed the Section in question here is unambiguous I say this specifically on the basis of the central phrase in s 224B 3 of the Fisheries Consolidated Act 1959 This is the phrase all or any Regard must also be had of course to the nature of the statutory provision in question which is one which creates an offence and provides a penalty for it All or any 25 The broader context of the words quoted above is forfeiture of all or any of the following found on the boat to which the offence relates a any fish b any fishing gear Emphasis added 26 The phrase all or any consists of two words separated by the disjunctive word or According to the Oxford English Dictionary this disjunctive word was originally a reduced form of OTHER and this derivation is suggestive It suggests that the word after or is different or other than the word which precedes it The same dictionary addressing the contemporary meaning of the word or finds it in the following senses 1 Introducing the second of two or all but the first or only the last of several alternatives 2 Introducing the only remaining possibility or choice of two or more quite different or mutually exclusive alternatives 3 Followed by or as an alternative either Emphasis supplied 27 I consider that the Oxford Dictionary aptly states the contemporary meaning of the disjunctive or Where two things are separated in speech or writing by the word or they are distinguished from each other or set in anthesis by or they are set up as alternatives to the other word or words so separated It follows that the words so separated are not identical but are different in nature or meaning 28 If the statutory phrase of relevance here read forfeiture of all of the following found on the boat Emphasis added the meaning would be quite clear all the fish and all the gear would be liable to forfeiture 29 But the subsection is not worded in that way In that Act as passed by the Oireachtas the words or any follow the word all On the ordinary and natural meaning of words the effect of this addition is to create an alternative to the forfeiture of all of the gear and catch Bearing in mind that the effect of this part of the subsection is to create a penalty that alternative can only be to permit the forfeiture of some of the gear or catch instead of all of the gear and catch Since one is dealing with a penalty which can be imposed only on conviction before a court it follows that the selection of which of the alternatives to adopt is a function of the trial judge Section 224B 3 and in particular the emphasised words creates not a mandatory forfeiture of all the fish or fishing gear found on the relevant vessel but a discretion as to whether to order the forfeiture of all of the gear or fish or of only some of the gear or fish This appears to me to be self evidently so by reason in particular of the use of the word or which is disjunctive and whose effect is specifically to create alternatives The actual disposal requires to be selected from amongst the alternatives created by statute by the trial judge in the Circuit Criminal Court 30 The foregoing arises primarily from the ordinary and natural meaning of the common word or I believe however that it is supported by a consideration of the true meanings of the word all and any 31 There is an element almost of artificiality in having recourse to a dictionary to ascertain the true meaning of such exceedingly common words The result of the exercise however is confirmatory of what I believe to be the ordinary or man in the street meaning Thus All is defined as follows in the Oxford English Dictionary 1 The entire or unabated amount or quantity of the whole extent substance or compass of the whole 2 All that is possible the greatest possible 3 The entire number of the individual components of without exception 32 The foregoing in and of itself appears to me to require that any thing here signified by the word any any entity which is presented as an alternative to all must of necessity be a part of a lesser amount of that all 33 Any is defined in the same source as follows An indeterminate derivative of one or rather of its weakened adjectival form a an in which the idea of unity or in plural partitivity is subordinated to that of indifference as to the particular one or ones that may be selected 34 It is odd in seeking the dictionary meaning of a common word to find it explained by the use of a much less common word such as partitivity However that unfamiliar word connotes merely the status of being part of something else that other thing being the whole represented by the term all in the subsection 35 On the view I take it is unnecessary to examine any other phrases in the subsection Lest the point arises elsewhere however I wish to express my agreement with Mr Justice Clarke s construction of the phrase liable to 36 I do not consider that the words all or any can be said of themselves to create an ambiguity What they create is a discretion to be exercised by a judge in the Circuit Court Until the judge has completed the trial it naturally cannot be known which of the alternatives created by these words he will select for that will depend on the individual facts and circumstances of the offence and of the offender But that uncertainty which of its nature cannot be resolved until the end of the criminal process is not an ambiguity there is an unambiguous creation of a discretion which must be judicially exercised 37 I do not consider either that the use of the phrase all or any would permit a discretion to order no forfeiture at all on conviction and to that extent I would not express the discretion created by the phrase as being a discretion as to what fish if any and what gear if any are to be forfeited I say this because any refers to a part of a whole that being the aspect of the word s connotation in relation to which the Oxford English Dictionary uses the term partitivity The Official Translation 38 It is a peculiarity of this case but only that that the phrase which I regard as dispositive all or any does not appear in the official translation of s 224B 3 at all The Irish version by contrast is Dlífear forghéilleadh a dhéanamh ar a bhfaighfear díobh seo a leanas I would translate this as meaning forfeiture may be levied on what is found of the following things on the boat 39 An argument might be raised as to whether that phrase incorporates the possibility of forfeiture of a quantity of what is found on the boat less than the whole but that would be a different and more complicated argument than the one based on the English language version 40 The Act of 1959 as appears from its official text was passed in the English language so that the Irish version has the status merely of official translation and not that of an alternative original version 41 I concur with the conclusion expressed in the judgment of Mr Justice Clarke 2013 IESC 40 THE SUPREME COURT JUDICIAL REVIEW 365 08 Denham C J Hardiman J Fennelly J Clarke J MacMenamin J Between JUAN M MONTEMUINO Applicant Appellant and THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES IRELAND AND THE ATTORNEY GENERAL Respondents JUDGMENT of Mr Justice Hardiman delivered the 17th day of October 2013 1 This is the applicant s appeal from the order of the High Court of the 18th June 2008 grounded upon the judgment of that Court the late Mr Justice Feeney of the 30th May of that year 2 The applicant is a citizen of Spain and is a fisherman by occupation In December 2005 he was the Master of an Irish fishing vessel the Ocean Enterprise This vessel was registered in the port of Tralee It was owned by Patrick Brown and was leased from him by Brendan Rogers 3 The Ocean Enterprise was boarded by Fishery officers on the 8th December 2005 They formed the view that there had been a breach of the Fisheries Consolidation Act 1959 as amended They obtained a court order for the detention of the vessel for forty eight hours After that period had expired they obtained another order for the further detention of the vessel pursuant to s 234 1 of the Fisheries Acts In accordance with normal procedures a bank draft in the amount of 88 000 was produced by Brendan Rogers on the 10th December 2005 This was by way of security for any anticipated fine and expenses and also covered the estimated value of the entire catch The vessel was then released 4 On the same day the applicant as Master of the vessel was charged with fishing within the State s exclusive fishery limits in contravention of Article 6 of the Council Regulation 2847 93 as amended and Article 1 a of Commission Regulation 2807 83 as amended by failing to fill in the log book of the operation of the said sea fishing vessel in that he failed to record the true quantity of Fork Beard caught and retained on board in contravention of Regulation 4 of the Sea Fisheries Control of Catches Regulations 2003 SI 345 of 2003 contrary to s 224B of the Fisheries Consolidation Act 1959 as inserted by s 5 of the Fisheries Amendment Act 1983 and s 232 of the Fisheries Consolidation Act 1959 5 Fork Beard is a species of fish In this particular case it is to be noted that the agreed value of the entire catch on the boat in question when it was boarded by the Fishery officers was over 30 000 Of this the value of the Fork Beard was only 600 It was in relation to the Fork Beard alone that an allegation of failure to record has been made 6 Neither the Irish nor the European Fisheries legislation is aimed at clarity or transparency and at times seem deliberately to court complexity and obscurity But the essence of the allegation against Mr Montemuino is this that he failed to record the small quantity of Fork Beard caught by the vessel of which he was Master contrary to European Regulations which establish a control system and lay down detailed rules for recording information on Member States catches of fish Therefore he is alleged to be in breach of the Irish Fisheries Regulation set out in the Statutory Instrument mentioned above On this basis it is alleged that he is guilty of an offence under s 224B 3 of the Irish Act of 1959 which creates an offence of fishing in breach of the Regulations 7 This Section creates an indictable offence not also triable summarily Accordingly on the 3rd May 2006 Mr Montemuino was sent forward for trial from the District Court to Tralee Circuit Criminal Court 8 Subsequently the applicant commenced the present proceedings and his trial has been adjourned from time to time pending the outcome of these proceedings 9 The species of fish to which the alleged offence relates is the Greater Fork Beard This is a non quota species but under the Commission Regulations quoted above it is alleged that there was an obligation to record any quantity of the species on board the vessel in excess of fifty kilograms live weight 10 All the foregoing facts are uncontroverted The Judicial Review Proceedings 11 Mr Montemuino challenged the constitutionality of s 244B 3 of the Act of 1959 which is the penalty provision of the Section 12 This provision is as follows A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding 100 000 and as a statutory consequence of the conviction to forfeiture of all or any of the following found on the boat to which the offence relates a any fish b any fishing gear 13 The argument in the High Court proceeded on both sides on the assumption that this Section provided for a mandatory forfeiture of all fish and all fishing gear which was on a fishing vessel involved in an offence 14 In the applicant s statement of grounds seeking judicial review dated 27th July 2006 he claimed amongst other things The offence is one which is introduced into Irish law as a result of European Community Law and its common fisheries policy there is no requirement in Community Law for mandatory forfeiture of the total fish and fishing gear found on a vessel The Irish Statutory provision requires forfeiture of the entire gear and catch and such a forfeiture is a mandatory statutory consequence of a conviction and such an Order is made by the trial judge Such an Order is a penalty and one of which account is taken by the trial judge when the determining the sentence The said forfeiture is wholly and exceptionally disproportionate to the offence alleged against the applicant No matter what the trial judge decides to do insofar as a fine is concerned even if the fine were one euro the effect of the said forfeiture would be to impose a penalty which is wholly disproportionate to the offence 15 Although the case proceeded in the High Court and the appeal opened in this Court on the basis that the Section provided for the mandatory forfeiture of all the fishing gear and all the fish that were on a fishing vessel at the time of the detection of an offence the Court itself raised the question of whether on its true construction the Section did indeed require a forfeiture of that kind or whether on the other hand the Section permitted the trial judge in the Circuit Criminal Court to impose a forfeiture of all or alternatively of whatever portion number or amount of the catch and gear seemed appropriate to him 16 The respect in which the relevant Section was said to be unconstitutional was that it imposed a mandatory forfeiture of the entire amount of the catch and gear If on the true construction of the Section there was no such mandatory forfeiture then the claim that the Section was unconstitutional would simply not arise and would naturally be dismissed On the alternative construction of the Section whereby the forfeiture was discretionary only the constitutional argument would simply fall away When the question of the true construction of the Section was addressed on behalf of the applicant he invoked what is called the double construction rule whereby the Court should adopt any available construction of the Statute which avoids a finding of unconstitutionality Section 224B 3 17 All legislation is expressed in words and in principle the meaning of legislation is that expressed in the ordinary and natural meaning of the words used In Ireland statutes are passed either in the national and first official language Irish or in English which is recognised as a second official language See Article 8 of the Constitution By reason of Article 34 an official translation of a statute passed in either official language must be prepared in the other official language 18 For ease of reference I now set out s 224B 3 of the Fisheries Consolidation Act 1959 as inserted by s 5 of the Fisheries Amendment Act 1983 first in English and then in Irish In each version phrases which seem to me to be of particular importance are underlined 3 A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding 100 000 and as

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/5777c0959abafe0680257c070058513a?OpenDocument (2016-02-09)
    Open archived version from archive


  • in para 88 of the Opinion of Advocate General Kokott in Joined Cases C 387 02 C 391 02 and C 403 02 Silvio Berlusconi and Others 2005 ECR I 3565 where it was stated Rules laying down penalties are effective where they are framed in such a way that they do not make it practically impossible or excessively difficult to impose the penalty provided for and therefore to attain the objectives pursued by Community law 3 6 It would in those circumstances be appropriate to interpret an Irish provision designed to provide for penalties for breach of European Union law such as the provision with which this Court is currently concerned if at all possible in a manner which would ensure that any relevant penalties met the test of effectiveness However it is difficult to see how even if the construction sought to be placed on the section on behalf of Mr Montemuino is correct the penalties in this case would fail that test The sentencing judge would retain the ability in an appropriate case and in circumstances where it was considered necessary to impose it as a deterrent to direct the forfeiture of all fish and all fishing gear even though a relevant offence might be said to specifically relate only to a portion thereof In addition the legislation provides for a substantial fine as being capable of being imposed in any event On the facts of this case the maximum fine of 100 000 126 973 exceeds by a factor of approximately four the total value of any possible forfeiture I do not consider therefore that the proper construction to be placed on the section in the context of the dispute in this case could be influenced by European Union law for on either construction there would be what seems to be an effective penalty On that basis it is necessary to turn to the proper construction of the section 4 Discussion 4 1 I propose to deal with the point made on behalf of the Minister first While it is true that the phrase is liable to can depending on context give rise to varying meanings I am satisfied that a requirement that someone be liable to something as a statutory consequence of a conviction will in most cases mean that the specified consequence is to arise automatically in all cases rather than that the specified consequence is a maximum penalty carrying with it a discretion conferred on a sentencing judge to impose a lesser penalty of the same type The normal meaning of statutory consequence of a conviction will take the relevant consequence ordinarily outside the scope of the sentencing process altogether Whether legislation providing for such statutory consequences is consistent with the Constitution will of course depend on an analysis of whether such a mandatory penalty or consequence imposed outside of the sentencing process breaches the public law principle of proportionality 4 2 However it is impossible in this case to ignore the use by the legislature of the term all or any which seems to convey the possibility of alternatives It is difficult to see why different and clearer language would not have been used had the intention of the legislature been to require that there be a mandatory forfeiture of all fish and all fishing gear which might be found on board In the ordinary way the use of the term all or any implies a discretion or choice That term is not in itself ambiguous The combination of the use of language referring to a statutory consequence and the separate use of all or any might be said to at least give rise to a tension The former often implies a fixed and mandatory non judicial result The latter often implies a discretion 4 3 It must be recalled that the court is here being asked to construe a penal provision Whatever forfeiture is mandated by the section same is a penalty imposed as a result of a criminal conviction It is well settled that penal statutes should in the ordinary way be construed in the case of ambiguity in a manner favourable to the accused That principle stems from the fact that penal consequences need to be expressed clearly in legislation It follows that where there is a lack of clarity and thus ambiguity the penal consequences should not extend to those which might arise on a more severe construction precisely because as a result of the ambiguity concerned that more severe construction is not sufficiently clear As Kearns J pointed out in Director of Public Prosecutions v Moorehouse 2006 1 I R 421 It is a well established presumption in law that penal statutes be construed strictly This requirement manifests itself in various ways including the requirement to use express language for the creation of an offence and a further requirement to interpret strictly words setting out the elements of an offence Maxwell on the Interpretation of Statutes 12th ed pp 239 240 If there is any ambiguity in the words which set out the elements of an act or omission declared to be an offence so that it is doubtful whether the act or omission in question in the case falls within the statutory words the ambiguity will be resolved in favour of the person charged A desired statutory objective must be achieved clearly and unambiguously particularly where statutes of strict liability such as the Road Traffic Acts are concerned Thus in construing a penal statute the court should lean against the creation or extension of penal liability by implication 4 4 In my view at a minimum the use of the words a statutory consequence together with all or any in this section creates an ambiguity such that it is not clear that the section intended the mandatory forfeiture of all fish and all fishing gear Given the penal status of the section it seems to me to follow that the section when construed in accordance with ordinary principles of construction therefore must be interpreted in a way which requires that there be a discretion as to what fish if any and what gear if any are to be forfeited As there is a discretion it is clear that the only person who can properly exercise that discretion is a sentencing judge for it is well settled that allowing any discretion as to penalty to be exercised by any person or body other than the judicial power is inconsistent with the Constitution see Deaton v The Attorney General and the Revenue Commissioners 1963 1 I R 170 4 5 It follows that the ambiguity in the section leads to the conclusion that forfeiture must be imposed by the sentencing judge who has a discretion to forfeit anything up to and including the totality of any fish and or fishing gear found on the vessel in question The court understands although it is not relevant to the issue with which the court is currently concerned that in practice bonds are entered into which are substituted for any relevant fish and or fishing gear so that what in practice is forfeited is a part of the bond up to the value determined by the sentencing judge In that regard McCarthy J stated in Attorney General v Judge Sheehy 1990 1 I R 70 that In my view where a sum is paid as a surety the statutory scheme does not contemplate forfeiture in kind That being so the sum paid stands in the place of the thing or things to be forfeited and is answerable as such to the order of forfeiture The forfeiture is a statutory consequence of the conviction Its operation on the surety should be stated in the order of conviction 4 6 In accordance with European Union law it is of course necessary for any sentencing judge to have regard to the importance of ensuring compliance with European Union legislation and in selecting an appropriate penalty it must be assumed that any sentencing judge will properly take such factors into account subject also to the requirement of both Irish and European Union law that any penalties imposed also be proportionate 4 7 On the basis of that interpretation it is unnecessary to apply the double construction test for the interpretation arrived at as a result of the application of ordinary principles of construction does not give rise to any constitutional difficulty 5 Conclusions 5 1 It follows therefore that the construction ultimately urged on the Court on behalf of Mr Montemuino is correct By virtue of the provision being a penal statute and of the ambiguity identified in this judgment I am satisfied that the section must be construed as conferring a discretion on a sentencing judge to determine the appropriate amount of forfeiture that is to apply in respect of fish and or fishing gear found on a relevant vessel 5 2 On the basis of the section having that meaning it is clear that no question as to the consistency of the section with the Constitution arises and that therefore the specific relief sought in these proceedings and on this appeal must be refused I would propose that the Court might hear counsel further as to whether any alternative relief could or should be granted THE SUPREME COURT Appeal No 365 2008 Denham C J Hardiman J Fennelly J Clarke J MacMenamin J Between Juan M Montemuino Applicant Appellant and The Minister for Communications Marine and Natural Resources Ireland and the Attorney General Respondents Respondents Judgment of Mr Justice Clarke delivered the 17th October 2013 1 Introduction 1 1 It can I think safely be said that the legislation governing fisheries and fishing in Ireland is both complex and highly technical There is of course a significant overlay of European Union law by reason of the many measures adopted by the Union legislature in the context of the Common Fisheries Policy This appeal focuses at least so far as the primary issue with which this Court is currently concerned on one aspect of that regime 1 2 Section 224B 3 of the Fisheries Consolidation Act 1959 as inserted by s 5 of the Fisheries Amendment Act 1983 lies at the heart of these proceedings That section creates an indictable offence of fishing in breach of the regulations to which it refers Those regulations are Irish regulations which implement European legislation The applicant appellant Mr Montemuino currently faces criminal proceedings on indictment for allegedly failing to record the true quantity of forkbeard caught and retained on board his ship which failure is said to be in breach of the relevant European Union regulations being Council Regulation No 2847 93 establishing a control system applicable to the Common Fisheries Policy and Commission Regulation No 2807 83 laying down detailed rules for recording information on Member States catches of fish as amended As a result it is alleged that Mr Montemuino is in breach of the Sea Fisheries Control of Catches Regulation 2003 S I No 345 2003 and thus is said to be guilty of an offence under s 224B 3 of the 1959 Act 1 3 Mr Montemuino launched a challenge to the constitutionality of the s 224B 3 which challenge failed in the High Court before Feeney J Montemuino v Minister for Communications Ors 2009 1 I L R M 218 Mr Montemuino appealed to this Court However when the matter was first at hearing a question arose as to the proper interpretation of the section in question and the matter was put back for further submissions and argument In order to understand the precise issue of construction which arose it is necessary to say a little about the section and the constitutional argument as it developed 2 The Section and the Argument 2 1 The section in full reads as follows A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding 100 000 and as a statutory consequence of the conviction to forfeiture of all or any of the following found on the boat to which the offence relates a any fish b any fishing gear 2 2 The constitutional argument in the High Court proceeded on the assumption that the section provided for a mandatory forfeiture of all fish and all fishing gear which might be found on a boat where a conviction on indictment arose in respect of fishing by that boat on the occasion in question It appears that the section had in the past been consistently viewed by the authorities as having that meaning In simple terms the case made before the High Court by Mr Montemuino was that the mandatory and non discretionary nature of such a penalty of forfeiture was disproportionate in the public law sense of that term and for that reason unconstitutional On the particular factual context of this case it was noted that the agreed value of all of the fish on board the relevant boat on the occasion in question exceeded 30 000 while the value of the forkbeard in respect of which there was a failure to record amounted to 600 2 3 When the case was first at hearing before this Court on appeal as a result of interventions by members of the Court a question arose as to whether on its true construction the section did truly require a forfeiture of all fish and all fishing gear or rather whether the section permitted a sentencing judge of the Circuit Court to impose a forfeiture of whatever amount of fish and or fishing gear seemed appropriate to meet the seriousness of the offence It was that question which was put back for further submissions and argument Before going on to consider and deal with those arguments a number of points need to be noted 2 4 First it was clear that if the alternative interpretation of the section was correct i e if the section should properly be interpreted as leaving a discretion with a sentencing judge then the constitutional argument necessarily fell away for in those circumstances a sentencing judge would be entitled to impose whatever penalty of forfeiture was considered to meet all of the facts of the case It is important to recall that the careful judgment by Feeney J did not deal with the construction issue now under consideration precisely because that issue was not raised before him As already pointed out that issue first arose out of questions asked by members of this Court in the course of the appeal 2 5 Second it does need to be noted that the regime for the imposition of penalties for fishing in breach of the Irish regulations which implement the relevant provisions of European legislation on the Common Fisheries Policy has since been amended so that the issue which arises in this case is now historical although the Court was informed that there are a significant number perhaps of the order of 60 of cases pending which relate to offences alleged to have been committed before the relevant amendments were put in place and which therefore might potentially be affected by the decision in this case 2 6 Finally it should be noted that amongst the arguments put forward on behalf of Mr Montemuino was an argument that in interpreting the section regard is required to be had to the so called double construction rule identified in the judgments of this Court in McDonald v Bord na gCon 1965 I R 217 and East Donegal Co Operative v The Attorney General 1970 I R 317 If it were necessary to resort to that test then it would of course be necessary to address the constitutional issues raised for the East Donegal principle only comes into play if a construction which might otherwise be placed on legislation would lead to that legislation being considered inconsistent with the Constitution However the first port of call always has to be to seek to ascertain what the legislation means by reference to the ordinary canons of construction In that context it is first appropriate therefore to turn to the meaning of the section in accordance with those canons 3 The Ordinary Construction of Section 224B 3 3 1 A number of aspects of the wording of the section need to be addressed First it should be noted that a person guilty of a relevant offence shall be liable to forfeiture One of the issues canvassed was as to whether the phrase shall be liable carried with it a necessary implication that the entirety of the matters to which the convicted person was said to be liable must necessarily be imposed or whether legislation imposing a penalty in those terms simply exposed a convicted person to the specified penalty as a maximum allowing a sentencing judge to choose a lesser sentence if it was considered appropriate in all the circumstances of the case 3 2 Counsel for the respondents the Minister drew attention to The People at the suit of the Attorney General v Francis Murtagh 1966 I R 361 where the phrase shall be liable in s 2 of the Criminal Justice Act 1964 was considered by the Court of Criminal Appeal and this Court and the decision of this Court in Attorney General v Sheehy 1990 1 I R 70 where the same phrase in s 2 1 of the Fisheries Amendment Act 1978 was interpreted The Minister says that both of those judgments are authority for the proposition that the phrase shall be liable must be construed as imposing a mandatory penalty rather than merely identifying the maximum penalty which could be imposed However attention was also drawn on behalf of Mr Montemuino to a large number of offences where persons are said to be liable to a specific term of imprisonment on conviction where

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/cb628ac533eea03180257c07005895e7?OpenDocument (2016-02-09)
    Open archived version from archive