High Court of Ireland Decisions

1. This is a consultative Case Stated by Judge Haughton, a Judge of the District Court assigned to the Dublin Metropolitan District, pursuant to the provisions of Section 52 of The Courts (Supplemental Provisions) Act, 1961. The Defendant appeared before Judge Haughton in the District Court on the 10th January, 1995 and pleaded guilty to two offences with which he had previously been charged on Terenure Charge Sheet No. 1 of 1995. The charges were as follows:-

2. The Case Stated goes on to explain that the Judge adjourned the hearing until the 11th January, 1995 and assigned Mr. Garrett Sheehan, Solicitor, to represent the Defendant under the Criminal Legal Aid Scheme. He also advised the prosecuting Garda to have a representative of the Chief State Solicitor's office in Court the following day as he was of the opinion that the provisions relating to penalty and disqualification contained in The Road Traffic Act, 1994 in respect of the offence under Section 13(3) of that Act may be such that the offence could not be regarded as a "minor offence" and that in those circumstances he, the District Court Judge, would be exceeding his jurisdiction were he to proceed with the matter. The Judge states that he was anxious to allow the State Solicitor and a Solicitor on behalf of the Accused to address him on that issue and to decide whether or not he should state a case for the High Court to determine. Ultimately, the matter came to be argued on the 12th January, 1995. Mr. Mooney, on behalf of the State, submitted to the Judge that the decision of the Supreme Court in Attorney General -v- Conroy , 1965 I.R. 411 might well have been made thirty years ago but that the decision was binding on the District Court. He argued that the reasoning of the Court in the Conroy case applied equally to the circumstances of the case before Judge Haughton. He further submitted that Mr. Conroy had made the very point being made in relation to the present case, that is, that his livelihood depended on his being able to drive. Mr. Mooney submitted to the Court that in any evaluation as to what constituted a minor or non-minor offence regard would have to be had to the circumstances of the particular case before the Court and that there was nothing in the case before the Judge to distinguish it from that of Mr. Conroy. Mr. Mooney submitted further that there were many Orders in the District Court which would have consequences far beyond that which was directly intended. In particular, the recording of a conviction in the District Court would, in many instances, effectively prevent a person from travelling to many parts of the world and that it had never been suggested at any time that such consequences might be brought into evaluation in considering the gravity of the offence. The judge stated that he would distinguish circumstances where foreign States exercised their sovereignty by refusing to grant visas. The case at issue was one where the State itself had taken steps contrary to the interests of the defendant.

3. With regard to the second matter, Mr. Mooney submitted to the Court that the provisions of Section 29 were directed to the Executive and need not and do not concern the Court, that there were many instances where the strict terms of the Court would be mitigated in its execution and he instanced those provisions of law whereby a prisoner might be granted early release or parole. It was submitted that Section 29 was to be read as a directive to the Executive. Mr. Mooney then went on to submit that it was not within the competence of the District Court to refer a question in the manner proposed on an issue of constitutional law. He made reference to the decision of the Supreme Court in Foyle Fisheries Commission -v- Gallen , 1960 Ir. Jur. Rep. 35. He further read from the second edition of Kelly on the Constitution. Mr. Sheehan, on the other hand, submitted that he would be surprised if it was not within the competence of the Court to refer a question for the opinion of the High Court on an issue concerning the jurisdiction of the District Court. According to the Case Stated the Judge then expressed the view that the question he proposed to pose to the High Court was not one which necessarily touched upon the constitutionality of the provisions but the question was as to the nature of the offences before the Court. But Mr. Mooney submitted further that since the legislature provided for the summary trial of the offences and had not provided any alternative method that the question to be posed was one which impliedly went to the constitutionality of the statutory provisions. However, the Judge ultimately decided to state the case and the questions he has asked are the following:-

4. The first matter which this Court has to consider is whether the Case Stated should be entertained by it at all. Counsel for the Director of Public Prosecutions, Mr. O'Caoimh, has argued that the District Judge had no jurisdiction to state a case because by doing so he was effectively raising the constitutionality of provisions contained in The Road Traffic Act, 1994 and that he was totally precluded from doing this by virtue of Article 34.3.(2) of the Constitution. There is absolutely no doubt that a District Court Judge is not entitled to state a case to the High Court on a question of the validity of a statutory provision having regard to the Constitution. The direct effect of the constitutional provision already cited prevents him deciding the question himself and he can obviously only state a case on questions which he himself would be entitled to decide independently of the Case Stated. The mere fact, therefore, that the High Court is given jurisdiction under the Constitution to determine a question of the constitutionality of a statutory provision does not mean that this can be done by way of Case Stated and the former Supreme Court of Justice has made this absolutely clear in Foyle Fisheries Commission -v- Gallen cited above. This case was subsequently followed by O'Hanlon J. in Minister for Labour -v- Costello , 1988 I.R. 235 in the context of an issue as to whether a particular offence was a "minor offence" or not, but I will be returning to that case in more detail later in this judgment.

5. It is clear from the Case Stated, however, that the District Judge takes the view that he is not challenging the constitutionality of any provisions of the 1994 Act as such but that he is concerned in relation to the particular case before him that he should not breach the express provisions of Article 38.5. of the Constitution. That section of the Constitution reads as follows:-

6. Sections 3 and 4 deal with special and military Courts and are therefore not relevant to this case. But Section 2 provides as follows:-

7. As I understand his concern as expressed in the Case Stated, the Judge believes that he is under a direct constitutional obligation not to try a non-minor offence summarily and that he must consider his position in this regard in relation to any particular prosecution before him. As the District Court Judge would see it, he is not in any way raising a question as to the constitutionality of a statutory provision but rather he is raising a question of whether he is entitled to deal with these particular charges before him having regard to Article 38.5 of the Constitution. He believes it to be irrelevant that the same point would arise in every prosecution under these sections in the 1994 Act. As Counsel for the Defendant puts it, if he is entitled to consider whether the offences are minor offences or not and if he holds as a consequence of a decision upon a Case Stated or by virtue of his own decision unaided that they are not and that decision is upheld, the effect is not to render the statutory provisions unconstitutional as there would have been no declaration to that effect but rather to render them inoperative. The question of the entitlement of the District Court Judge to state the case was fully debated in Court. Irrespective of whether the hearing in respect of the charges can be said to have commenced, there were "proceedings ... before him". The questions of law posed in this consultative Case Stated arose in those "proceedings". It follows, in my view, that Judge Haughton did have jurisdiction under Section 52 of The Courts (Supplemental Provisions) Act, 1961 to send forward this consultative Case Stated. If this Court, however, takes the view that the District Court is bound to assume that any offence made a summary offence only by the Oireachtas is a "minor offence" within the meaning of the Constitution, the Court must decline to give specific answers to the questions raised for the reasons put forward by Mr. O'Caoimh and the case will be sent back to the District Court accordingly. The mere fact, therefore, that the District Court Judge has jurisdiction to send forward the Case Stated does not mean that he is per se entitled to specific answers to the questions he has posed.

8. I now turn to the questions in the Case Stated. I should say at the outset that it is more or less agreed by both parties that question No. (4) is not a question which was relevant to the proceeding before the District Court and ought not to be answered. I agree with this and I do not propose to answer it. The questions I am considering, therefore, are (1), (2) and (3). As I have already indicated, Counsel for the Director of Public Prosecutions argues that this Court cannot consider these questions as put because to do so would be effectively to permit a District Court Judge to hold that a statutory provision was invalid having regard to the Constitution something which he is prohibited from doing under Article 34.3.(2) of the Constitution. Counsel for the Defendant on the other hand adopts the view taken by the District Judge that he is not questioning the constitutionality of the section as such but he is considering (as in his view he is bound to do) whether the particular offence before him is a "minor offence". Although Counsel for the Defendant concedes that if the District Court Judge is entitled in this case to consider whether the offence before him is a minor offence or not, and if he decides that it is a non-minor offence and that consequently he has no jurisdiction, the same result would apply to any prosecution under the section and that, therefore, there could be no case which could be summarily tried. There being no provision in the section for a trial upon indictment, the section would be inoperative. Counsel for the Defendant argues that an inoperative section is not the same thing as an unconstitutional section. But such a proposition needs very careful examination as it could mean that every time that a District Court Judge considered that there was a constitutional infirmity in a particular section he could regard it as inoperative and inapplicable. In my opinion, this would be tantamount to a District Court Judge deciding on the constitutionality of a statutory provision and that he is not entitled to do under the Constitution.

9. I appreciate, of course, that Counsel for the Defendant would argue that the situation of "minor offences" is quite exceptional. It can be argued that in that instance, the Court is directly prohibited from embarking on a trial without a jury by the Constitution itself. Strong reliance has been placed by the Defendant on O'Sullivan -v- Hartnett , 1983 ILRM 79. In that case the plaintiff had been charged in the District Court with two offences concerning the unlawful capture of 900 salmon contrary to Section 182(2)(a) of the Fisheries (Consolidation) Act, 1959. Section 182(4) in providing for a penalty on summary conviction necessarily implied that the case could be tried summarily. But before the hearing of the charge, the plaintiff in separate proceedings sought a declaration in the High Court that the offences could not be said to be minor offences and consequently that Section 182 (4) was unconstitutional having regard to Article 38.5 which requires that non-minor offences be tried with a jury. McWilliam J. held that the offences charged were not minor but the Order as drawn up purported to contain a declaration by the High Court that "offences under Section 182(2)(a) of the Fisheries (Consolidation) Act, 1959 are not minor offences". On appeal to the Supreme Court, the judgment of McWilliam J. was upheld but the Supreme Court varied the Order so as to contain a declaration simply that neither of the particular offences charged against the plaintiff was a minor offence. Henchy J. who delivered the judgment of the Court pointed out that the judgment of McWilliam J. decided no more than that the particular offences were not minor offences and that it did not go so far as to hold that all offences under Section 182(2)(a) are not minor offences. The clear implication from those dicta of Henchy J. is that some hypothetical offences under that statutory provision could be minor offences and could therefore be tried summarily. That being so, the statutory provision as such was not under constitutional challenge. For that reason the same point could have been determined by the High Court, and on appeal by the Supreme Court, by way of Case Stated from the District Court, but I do not think that that could have been done if the necessary effect of the particular offence being held to be a non-minor offence would have been that no offence under the statutory provision could be tried summarily. That would be tantamount to challenging the constitutionality of the provision and could only be done by separate action in the High Court. In this regard, I would follow and adopt the view taken by O'Hanlon J. in Minister for Labour -v- Costello , 1988 I.R. 235. At page 241 of the report the following passage appears from the judgment:-

10. It is clear from the report that O'Sullivan -v- Hartnett cited above was referred to in the case before O'Hanlon J. but he clearly did not consider it relevant. I assume that he discerned a major distinction between the situation where some offences under the particular section would be regarded as "minor offences" and the situation where the logic of a Court determination that in any individual case the offence was not a "minor offence" would be that no prosecution could be brought summarily under the section. In the latter instance, the constitutionality of the section was being effectively impugned. This view is consistent also with the judgment of O'Higgins C.J. in The State (McEvitt) -v- Delap 1981 I.R. 125 (Supreme Court).

11. For this reason, therefore, I am of the view that even though the District Court Judge had jurisdiction to state the case, I should simply answer the questions by saying that by reason of the prohibition on the District Court challenging the constitutionality of a statutory provision, he is obliged to treat this offence as a "minor offence" and to try it summarily accordingly.

12. There is another reason why the arguments put forward on behalf of the Defendant to the effect that the District Judge is not attempting to challenge the constitutionality of the section are unsound. At common law there was no such thing as summary jurisdiction. Summary jurisdiction can only be vested in the District Court or any other Court in relation to criminal offences by a statute. It follows from that, that the prohibition on trying persons for non-minor offences without a jury contained in Article 38.5 of the Constitution is tantamount to a prohibition on the Oireachtas enacting any post 1937 Act making a non-minor offence a summary offence. But a corollary of that proposition is that it is for the Oireachtas in the first instance to determine whether an offence is a minor offence or not though it may delegate the function to the District Court where it provides for alternative modes of trial. In Conroy -v- The Attorney General cited above, Walsh J. in the course of his judgment says the following at p. 436:-

13. While I appreciate that that passage in the judgment of Walsh J. is in the context of one aspect of whether an offence is minor or not, that is to say, the moral quality of the act, it indicates a broader general view that there must necessarily be quite a range of discretion in the Oireachtas at any given time in considering whether an offence is a minor offence or not. Having regard to the general mores of the community, there may well be legitimate differences of opinion as to whether a particular offence should be regarded as minor or non-minor. An enactment that provided for summary trial of an offence which can legitimately be argued to be minor but which some might equally legitimately regard as non-minor would not, in my view, be declared void having regard to the Constitution. It would be only if on any reasonable view the offence was non-minor that the Courts would declare the enactment unconstitutional. If I am right in my view that that is the approach which the Superior Courts should adopt in considering whether an enactment providing for summary trial is constitutional or not in the context of whether the offence is minor or non-minor, then clearly the theory of the inoperative section must be misconceived. If such a principle could ever be countenanced, which I rather doubt, it certainly could not be appropriate in a case such as this where there is a range of discretion in determining whether an offence is minor or non-minor and that discretion is prima facie vested in the Oireachtas. In a case where summary trial only is provided for, any challenge by a District Judge to the mode of trial must necessarily be an attack on the constitutionality of the enactment. To put it another way, such a challenge is tantamount to suggesting that the Oireachtas may have gone badly wrong and acted unconstitutionally.

14. Having regard to the view which I have taken, it would be inappropriate that I should in this judgment consider the arguments put forward to the effect that the new form of disqualification arising from The Road Traffic Act, 1994 is different from that considered by the Supreme Court in Conroy's case and might be regarded as a punishment.