J.R. No. 325 of 1987

THE HIGH COURT

JUDICIAL REVIEW

BETWEEN

THE  DIRECTOR  OF   PUBLIC  PROSECUTIONS
APPLICANT
AND

DISTRICT JUSTICE DANIEL SHIELDS

RESPONDENT
AND

MICHAEL KELLY

NOTICE PARTY

Judgment of Mr. Justice Gannon delivered the 4th day of December 1987.

On the 27th of July, 1987, Johnson J. granted leave to the applicant, the Director of Public Prosecutions, to apply for Orders of Certiorari and Mandamus by way of application for Judicial Review in respect of four Orders of the respondent District Justice made on the 1st of May 1987 in the Dublin Metropolitan District Court.  Pursuant to that Order Notice of Motion was duly served with copy Statement of Relief sought, verifying affidavit, and copies Orders of the District Court sought to be reviewed. The respondent District Justice in reply served notice of grounds of opposition and supporting affidavit of the District Court Clerk.  Copies of the documents in support of the application were served on Michael Kelly who was the defendant in the District Court.  On the hearing in this Court of the Motion on foot of the Order of Johnson J. on the 20th of November 1987 the applicant was represented by Mrs. Susan Denham S.C. and the respondent by Mr. Paul O'Higgins B.L.  The notice party Michael Kelly was not present nor was he represented.

The four Orders which are challenged relate to charges brought against Michael Kelly alleging failure to comply with the provisions of the Road Traffic Acts 1933 to 1984 requiring him to have and to produce on demand a licence to drive and a certificate of insurance in relation to his driving of motor car Registration No. 634 TI at Tyrconnell Road, Inchicore, Dublin on the 12th of August 1986.  The charges were set out on forms appearing to be adaptations of the form of District Court Summons for the Dublin Metropolitan District prescribed by the District Court Rules prior to 1986.  On the 21st of January 1987 a different form of District Court Summons was prescribed by Statutory Instrument No. 23 of 1987 so as to conform to the requirements of the Courts (No.3) Act 1986 which became law on the 19th of December 1986.  The four adapted summonses which were served on Michael Kelly on the 22nd of April 1987 required him to attend at Court No. 1 Morgan Place, Dublin on the 1st of May 1987 at 1400 hours.  This he did in person. Detective Garda Patrick O'Sullivan who was described on the adapted summonses as "applicant" attended at that time to prefer the charges. In the affidavit grounding the application for Judicial Review Detective Garda O'Sullivan describes the making of the Orders sought to be quashed as follows:

5. The said Michael Kelly was in Court. 
6. When the case was called I got up to give evidence.
 	7.  I was stopped from doing this by the respondent.
8.  The respondent said a he had decided on such summonses before.  He then made the order of "strike out" on each summons.  I beg to refer to true copies of the said four Orders upon which clipped together and marked with the letter B I have signed my name prior to the swearing hereof.

9. The respondent said that his grounds for striking out the summonses was because they were applied for before the new Summonses Act came into force."

The affidavit of the District Court Clerk Rose O'Sullivan grounding the notice of opposition on behalf of the respondent describes the matter in the following manner:

3. I say and am informed by the respondent herein that the practice which had, for some time been followed by the respondent herein in relation to summonses which stated themselves to be based on applications made prior to the introduction of the Courts (No. 3) Act 1986 had been to strike the same out on the basis that the same were bad on their face and purported to rely on a form of application not open to a person willing to commence proceedings on the date on which such commencement was sought. On occasions several of the summonses in any given list might be in such a form and were struck out as the cases were called, one by one."

She says she cannot say whether any appearance by or on behalf of H the defendant was made known to the Court. At paragraph (6) she says "I say and am informed by the respondent that if any	particular matter had been brought to the attention of the respondent to distinguish this case from the generality of similar cases that he would have heard and considered the same and that he has no recollection of preventing any Garda from saying anything which he wished to say in relation to any such summons."

The following Order stating grounds was made by Johnson J. on the 27th of July 1987:
	And on hearing what is offered by said Counsel IT IS ORDERED

(1) that the Applicant do have leave to apply for an	Order of Certiorari and Mandamus by way of application for Judicial Review in respect of the said Orders on the following grounds

(1) Mandamus

An Order of Mandamus is sought to compel the Respondent to hear and determine the case herein as the Respondent has wrongfully declined jurisdiction
		
(2) Certiorari

(i)  The Respondent acted contrary to his duty in failing to hear and determine the
summonses herein

(ii)  The Respondent while initially acting within jurisdiction went outside his
jurisdiction in a fundamental way and thus exceeded his jurisdiction in making the
said Order

(iii) The Respondent while initially acting within jurisdiction erred fundamentally in the course of the hearing and so deprived himself of jurisdiction in the matter 

(iv)  The Respondent exceeded his jurisdiction or acted in want of jurisdiction in refusing to hear and determine a summons validly issued pursuant to Courts (No. 3) Act 1986.

(v)  The Respondent exceeded his jurisdiction or acted in want of jurisdiction in failing to hear and determine the case herein and in ordering as he did 

(vi)  The Respondent acted in breach of fair procedures and or in breach of natural justice in refusing to allow the prosecution to proceed, or in failing to give the prosecution an opportunity to proceed."

There appears to be an inadvertent verbal inconsistency in describing the alleged error of the District Justice as "failing to hear and determine the case" in sub-sub-paragraph (1) and sub-sub-paragraph (2) (v) while in paragraph sub-sub-paragraph (2) (i) and (iv) the phrase used is "to hear and determine a summons or summonses".

The Courts (No. 3) Act 1986 to which the respondent refers came into force on the 19th of December 1986.  It was enacted to remedy a defect in the procedure for issuing summonses for the  District Court which had been disclosed by the judgment of Barron J. in The state (Clarke) .v. Roche and Senezio delivered on the 20th of March 1986 and subsequently affirmed on appeal by the Supreme Court on the 12th of December 1986.  In the unreported judgment of Barron J. he says at pages 4 and 5 thereof as follows:  
  
"Where proceedings are commenced by way of summons in a case of summary jurisdiction, the jurisdiction to hear the matter is dependent upon a complaint having been made to and received by a District Justice, Peace Commissioner or District Court Clerk. This jurisdiction is exercisable when the matter comes on for hearing following the issue of a valid summons served in accordance with the Rules of the District Court.  If the summons actually issued is invalid, this of itself does not mean that the Court does not have jurisdiction to hear the matter.  Of course, where the summons is invalid or the service bad and the defendant does not appear, the jurisdiction is not exercisable.  But if he does appear in such circumstances the Court is entitled to exercise its jurisdiction.  If he then submits that the Court has no jurisdiction by reason of a complaint not having been properly made within time,, in an appropriate case, such complaint can be made there and then to the Court in the presence of the defendant." In the course of his judgment Barron J. shows by extracts from judgments of the Supreme Court in P.P.P. .v. Gi11 1980 I.R. 263 and The Minister for Agriculture v. Norgro Limited 1980 I.R. 155 that the following matters of law are established, namely,

(a)	that the jurisdiction of the District Justice to enter upon the hearing of a charge derives from the making of the complaint stated on the summons and not from the existence of the summons;

(b)	that the complaint must be made to a person authorised to receive it;

(c)	that the summons must issue from such person having considered it;

(d)	that although an enforceable summons must contain on it information demonstrating the jurisdiction of the District Court to deal with the matter of complaint the omission of some such detail from the summons would not of itself deprive the Court of its jurisdiction; and 

(e)	proof of all necessary details of the jurisdiction of the District Court to deal with the matter could be required by the accused person and if so required would have to be given to the satisfaction of the District Justice at the hearing.

Needless to say if it should appear to the District Justice when the matter comes before him (whether raised by the accused person or not) that the facts disclose a matter not within the limitations of the nature or range of his jurisdiction he should not deal with it for by doing so he would be acting in excess of his jurisdiction.

The jurisdiction of the District Justice to procure the attendance of an accused person before him for the investigation of a complaint should not be confused with the limitations of the nature or range of matters which may be investigated or adjudicated upon by him.  In regard to the former element of jurisdiction the accused person or a defendant may waive mere irregularities of procedure, or, by appearing and contesting the matter in Court, may waive any irregularity in the service of the summons or the want of a valid summons. (See A.G. (McDonnell) .v. Higgins 1964 IR 374).  The following extract from the judgment of Kingsmill Moore J. at page 390 of the report of A.G. (McDonnell) .v. Higgins was quoted by Barron J. in his judgment in The State (Clarke) .v. Roche and Senezio:

To understand the importance and nature of the complaint it is necessary to advert shortly to the history of summary proceedings before Justices.

Save for a few exceptional cases, of which this is not one, the jurisdiction of Justices to enter upon the hearing of an alleged offence, triable summarily, depended from the earliest times - and still depends -upon the making of a complaint or information before a person authorised to received the complaint.

Barron J. also quotes the following extract from the same judgment: 

"That an information or complaint to an authorised person is the very foundation of the jurisdiction hardly needs authority, but I may refer to Paley on Convictions (1st ed., 1814), at p.14: "It is requisite in all summary proceedings that there should be an information or complaint, which is the basis of all subsequent proceedings and without which it seems that the Justice is not authorised in intermeddling." Hutton on Convictions (1st ed., 1835) has as the first words in his treatise: - "In exercising the power of convicting summarily any person charged with having infringed the provisions of a statute the initiative proceeding is that the party complaining must present a statement of the offence complained of to a Justice authorised to take such an information."  To the same effect are Nun and Walsh, Justice of the Peace (2nd ed., 1844), at p.472; Molloy, Justice of the Peace (1890), at p.169; O'Connor, Justice of the Peace (2nd ed., 1915), vol. 1, at p. 227.

Neither summons nor warrant to arrest, consequent on the information, confer jurisdiction. They are merely processes to compel the attendance of the person accused
of the offence: R. (U.D.C of Athy) .v. Justices of Kildare; R. .v. Justices of Cork. It is equally clear that if a person is in Court, voluntarily or involuntarily, legally or illegally, an information or complaint may be made then and there "ore tenus" to the justice, accusing such person of having committed a summary offence, and, if the information contains the necessary ingredients, the person may at once be charged with the offence: R. .v. Fuller; R. .v. Millard; Blake .v. Beech; R. .v. Hughes; R. .v. Justices of Cork.

In an unreported judgment delivered by me on the 9th of May 1986 in the D.P.P. v. John Sheeran a case stated by Aodhagan O'Reilly District Justice, I also had to consider the nature of the summons for commencement of District Court proceedings and its relation to the complaint; and in the course of my judgment I referred also to the following authorities namely: Attorney General (McDonnell) .v. Higgins 1964 IR 374; Minister for Agriculture .v. Norgro Limited 1980 IR 155; P.P.P. .v. Gill 1980 IR 263; P.P.P. .v. Clein 1983 ILRM 76; P.P.P. .v. McQuaid (Murphy J. 26th October 1984 unreported). 

Following consideration of these authorities I set out in enumerated form towards the end of my judgment what I considered an accurate summary of the fundamental points established by those decisions as follows:

1.  A complaint is a statement of facts constituting an offence.

2.  Such a complaint is the initiative proceeding: it must be made to a person having authority to receive it.

3.  Such person receiving the complaint must have authority to issue a summons and may do so.

4. The summons is a mere statement of the complaint notifying that a complaint has been made to an authorised person.

5.  The summons of itself does not afford proof of the fact that a complaint was made.

6. Neither defect of form of a summons nor failure to serve or proceed on foot of it will invalidate the proceeding.

7.The Court at which the person charged is present may proceed with a hearing notwithstanding a deficiency in the form, contents, or service of the summons.

8.  The attendance of the person charged may be procured by the issue of a second summons issued by the same or a person other than one who has issued the first summons.

9.  In the trial of an offence coming within section X (4) of the Petty Sessions (Ireland) Act 1851 it is a matter of proof that a complaint to an authorised person was made within six months from the commission of the offences alleged.

10.  The issue of the summons and the making of the complaint need not be contemporaneous.

On the hearing of the appeal from the decision of Barron J. in The state (Clarke) .v. Roche and Senezio reported at 1987 ILRM 309 the Supreme Court unanimously dismissed the appeal and affirmed the Order of Barron J.  Finlay C.J. in the course of his judgment is reported at page 311 of the report as saying

“Against the decision the prosecutor has appealed, stating in his grounds of appeal a number of different grounds, but in the debate before this Court, essentially what was at issue was a contention on the part of the prosecutor, firstly, that the issue of a summons was not an act of a judicial nature, but rather of an administrative nature, and that accordingly it could be delegated by the District Court clerk, and, secondly, that for the purpose of the time limit in the Act of 1851, once the complaint was delivered to the District Court office, irrespective of whether it was communicated to the District Court clerk or not, a complaint had duly been made.”

The Chief Justice traced the devolution to the District Court established by the constitution of the jurisdiction which originated in sections 10 and 11 of the Petty Sessions (Ireland) Act 1851.  Referring to the judgment of Barron J. the Chief Justice then said:

"In the course of his judgment he has pointed out that he has found in the cases of: Minister for Agriculture .v. Norgro Ltd (1980) IR 155; State (O'Leary) .v. Neylon (1984) ILRM 35; Attorney General (McDonnell) .v. Higgins (1964) IR 374; Irish Insurance Commissioners .v. Trench 27 ILTR; and R (Futter) .v. Justices of County Cork (1917) 2 IR 430 considerable support for the contention that the complaint in order to be made within the meaning of the Act of 1851 must be brought to the notice of the person who is authorised to receive it. I accept his interpretation of these cases, and they seem to me to be entirely consistent with the ordinary understanding of the concept of the making of a complaint.  If, in ordinary language, for example, a person asserts that he has made a complaint with regard to the conduct of some servant or agent to his master, it seems to me that he means that he has communicated to the Master's mind his grievance or complaint.  I cannot see how it is possible to distinguish between the concept of making a complaint to a particular individual and the concept of that particular individual receiving a complaint.
I cannot therefore accept the proposition that under the section a complaint could be made to the District Court clerk without being communicated to him."

The nub of the matter in the Senezio case was that because of the large number of cases, particularly Road Traffic Act offences, coming before the Dublin Metropolitan District Court the individual personal perusal of complaints and information and the issuing of summonses by hand had become an impossible task.  In order to speed the trial of summary offences a procedure was put in operation linking by computer operation the typing in from all areas of particulars and printing out and issuing of summonses stamped by District Court clerks.  In the District Court upon objection taken on behalf of the accused to the validity of the summons the District Justice had dismissed the charge.  The Prosecutor sought Orders of Certiorari to quash the Order of dismissal of the charge and of Mandamus to enter continuances. The grounds for that application as submitted were that the District Justice acted in excess of jurisdiction or in want of jurisdiction in dismissing the summonses without hearing evidence, the reason for her dismissal being that the summons was not issued by the District Court clerk to whom the complaint had been made. Before concluding his judgment in that case the Chief Justice said as reported at page 315 of the I.L.R.M. Report:
 
"It appears to me that there is much to be said for the point of the view that with regard to summary summonses  issued in criminal cases by members of Garda Siochana, at least, it is no longer necessary nor appropriate for a justice of the District Court or any other person to reach a judicial determination as to whether the summons should be issued."

That decision was followed by the enactment on the 19th of December 1986 of the Courts (No. 3) Act 1986 and the publication of the District Court (Forms of Summons) Rules S.I. Number 23 of 1987 which came into operation on the 22nd of January 1987.  These rules prescribed a form of summons which avoids using the term "complaint" or "complainant" but informs the accused person that on a named date "an application was made to this office by 	 on behalf of the prosecutor for the issue of a summons to you" alleging the commission by the accused of an offence and requiring him, the accused, to appear at a specified sitting of the District Court when he will be accused of that offence which he will be required to answer.  That form of summons was not used to require Michael Kelly to appear at Court No. 1 Morgan Place on the 1st of May 1987.  The form of summons with which Michael Kelly was served on the 23rd of April 1987, although not in the form prescribed in S.I. 23 of 1987, contained all the essential ingredients set out in such form and avoided the use of the terms "complaint" or "complainant".  As in the form prescribed by S.I. 23 of 1987 the adapted form which was used states that the application by the prosecutor for the issue of a summons had been made on a specified date without indicating to whom it had been made.  But the significant date on which it is alleged on the adapted form that an application for a summons was made is the 12th of November 1986.  That date preceded the making on the 21st of January 1987 of the Rules in S.I. 23 of 1987, and the enactment on the 19th December 1986 of the Courts (No. 3) Act 1986 and the delivery by the Supreme Court of their judgment on the 12th of December 1986 in The State (Clarke)  .v.  Roche and Senezio. 

That chronological sequence naturally and properly provoked scrutiny by the respondent of the procedure by which the accused Michael Kelly was brought before the Court.  Having regard to the form used to bring the matter before the respondent and the absence of any statement that any complaint to any person authorised to receive it had been made the only necessary inquiry then was whether or not Michael Kelly was present in Court.  If Michael Kelly was not then in Court the District Justice, being a person authorised to receive a complaint, could then have heard the complaint and determined whether or not to issue a summons to procure the attendance of Michael Kelly to answer the charges appropriate to the complaint then made to him.  If Michael Kelly was then in Court, subject to whatever objection he, Kelly, might have had, the District Justice by the nature of his office had jurisdiction to hear in the presence of Michael Kelly whatever complaint might be made and to determine what offence with which to charge Michael Kelly and to decide whether or not to deal with those charges there and then or to require the attendance of Michael Kelly for a hearing at another time.  As presented to this Court the matter came before the District Justice without an indication that a complaint had been made but, on the contrary, clearly indicating that a complaint, the nature and terms of which were specified, would be made to the District Justice on the 1st of May 1987.  Because Michael Kelly was in fact in Court the District Justice could, there and then, have ascertained the nature of the information furnished to Kelly to procure his attendance and could have charged him with the offences of which he had been notified.

It should be noted that the Courts (No. 3) Act of 1986 does not repeal the provisions of the Petty Sessions (Ireland) Act 1851 nor revoke the regulations and procedure prescribed in the District Court Rules.  The Act appears to set up a secondary mode of procedure whereby the issue of a summons can precede the making of a complaint and may be procured on the application by or on behalf of the Attorney General, the Director of Public Prosecutions, a member of the Garda Siochana, or any person authorised by or under statute to prosecute an offence.  It would seem therefore that the procedure authorised by this statute does not avail to a common informer.  The right of a common informer however to make a complaint to a District Justice has not been withdrawn.  It is provided in sub-paragraph (1) of section 1 of the Act that proceedings commenced under the procedure prescribed by this statue are consider J to be- commenced by the issuing of the summons and not by the making of a complaint or the laying of an information.  Subsection (8) of section 1 of the Act prescribes that

"The procedures provided for in this section in relation to applications for, and the issue of, summonses are without prejudice to any other procedures in force immediately before the passing of this Act whereby proceedings in respect of an offence can be commenced and, accordingly, any of those other procedures may be adopted, where appropriate, as if this Act had not been passed."
 
It would seem therefore that on the 1st of May 1987 the proceedings against Michael Kelly could have been commenced by the  making of a complaint with or without the issue of a summons as under the procedure in force immediately before the passing of the
1986	Act.  The form used to procure the attendance of Michael Kelly in Court showed that a complaint as required for a valid summons under the pre-1986 procedure had not been obtained but it also notified that it would be made to the District Justice in Court.  

The form used did not conform to the pre-1986 Rules and neither did it conform to the Rules prescribed in January 1987.

The inquiry in this Court as indicated is whether or not the charges preferred against the accused Michael Kelly were presented to the District Justice for his investigation on the 1st of May 1987 in a manner which effectively invoked his jurisdiction.  The hybrid nature of the form of summons adopted and the anomalies of the dates of enactment, regulation, and procedural events would have distracted the respondent from the basic concern of the Court.  The fact that similar unauthorised procedures had previously been adopted and condemned in his Court would have been an additional cause of distraction.  His first inquiry, I think, should have been to ascertain if the person intended to be accused and warned (as it would have seemed to him) to be present in Court was in fact present and if so to ensure that that person knew and understood what was happening in Court.

Having regard to the authorities to which I have referred I am of opinion that the respondent, by virtue of the presence in Court of the person intended to be accused, had before him a matter properly within his jurisdiction.  On the facts as deposed to it appears to me the respondent mistakenly, but wrongly, declined to exercise the functions of his jurisdiction.  In these circumstances the Order made is a bad Order and should not remain a matter of record.  This case does not appear to be one in which the circumstances would justify this Court as a matter of discretion to decline to grant the relief sought.

In the result the Orders of the 1st of May 1987 must be sent forward to be quashed, and the proceedings will be remitted to the respondent to enter continuances and the formal Order in the nature of Mandamus must issue.