THE HIGH COURT
Record Number: 2002 No. 533 SS

In The Matter of:

The Summary Jurisdiction Act, 1857 (19 & 20 Vict.,C.43), Section 2 As extended by The Courts (Supplemental Provisions) Act, 1961, S.51

Between:
The Director of Public Prosecutions
Prosecutor/Appellant
And

B.J.N. Construction Limited and Brendan Mooney
Accused/Respondents

JUDGMENT of Mr Justice Michael Peart delivered the 25th day of June 2003

The facts forming the background to the present application by way of Case Stated are brief and unfortunate. On the 20 July 2000 at about 10am, an employee of B.J.N. Construction Limited ("BJN"), namely Patrick O'Kane, fell from a scaffolding which had been erected at a dwellinghouse which was in the course of construction at Portarlington, Co. Laois. His injuries were very serious, and he unfortunately died some four days later.

An investigation into the circumstances of his death was carried out by the Gardai, and also by the National Authority for Occupational Safety and Health ("The National Authority") on the same date as the incident itself. An Inquest into his death was held on the 26th January 2001.

Within 6 months from the date of this incident, namely on the 22th June 2001, a number of summonses were issued out of the District Court at Portarlington against BJN.

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In all of these summonses the National Authority is named as the Prosecutor, and the charges- relate to alleged offences contrary to Section 13 of the Non-Fatal Offences Against the Person Act, 1997 ("the 1997 Act"), and contrary to a number of Regulations under the Safety Health & Welfare at Work (Construction) Regulations, 1995 ("the Regulations") and as provided for by Section 48(1)(c) of the Safety Health and Welfare at Work Act, 1989 ("the 1989 Act"). I should add that it is provided in Section 51(l) of the 1989 Act that, subject to subsection (2) thereof, any summary offence under any of the relevant statutory provisions may be prosecuted by the National Authority. The matters dealt with in subsection (2) are not relevant to this case.

From-the facts contained in the Case Stated, it appears that on the return date for these summonses, namely the 22nd June 2001, all summonses were struck out because of some difficulty with the service of same. But on the 11th September 2001, the Summonses were re-issued on foot of the original complaint, and were made returnable for the 6th November 2001. On that date the summonses were again struck out, the court being informed that it was now intended to proceed by way of indictment, rather than by summary proceedings.

Following the decision to proceed by way of indictment, fresh summonses were issued out of the District Court office at Portarlington on the 31st October 2001, which is some fifteen months after the date of the unfortunate incident in which Mr O’Kane fell from the scaffolding, and some nine months after the date on which the Inquest into his death was held. The Prosecutor is named in respect of each summons as the Director of Public Prosecutions.

They were issued on foot of an application made the same day by the solicitor acting on behalf of the Prosecutor, and notify BJN that on the 4th December 2001 at Portarlington District Court, it will be charged with the offences set out in the various summonses. These are the same offences which were the subject of the earlier summonses which were struck out. The matters came before the said District Court in fact on the 6th December 2001. The Prosecutor sought an adjournment for the purposes of

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the preparation-of the Book of Evidence. On the same occasion, however, Counsel on behalf of the BJN made an application to the District Judge for an order striking out the summonses on the basis that same had not been issued within time, namely within one year from the date of the incident, namely the 24th July 2000, or within six months of the Inquest, namely the 26th January 2001, as provided for by Section 51 of the 1989 Act, as amended by Section 38 of The Organisation of Working Time Act, 1997. Counsel for the Prosecutor submitted that these time limits were applicable only to summonses charging summary offences, and not to charges brought by way of indictment to which no time limits are applicable.

Having considered the submissions of Counsel, the District acceded to the request to have the summonses struck out on the basis that they had not been issued within the time limits set out above. She accepted the submission of Counsel for BJN that the decision in D.P.P. v. Nolan (1990) 2 I.R. 526 was support for the proposition that the effect of Section 1(7) of the Courts (No.3) Act, 1986 ("the 1986 Act") was to apply a six month time limit from the date of the alleged offences to the date of the application of the summonses under that Act, and that in accordance with the decision in Gleeson v. Chi Ho Chung (1997) 1 I.R. 522, that a penal statute must be strictly construed, and cannot create criminal-responsibility except by clear and unambiguous language.

Having been requested to state a case to the High Court, the District Judge has done so, and asks this Court to decide whether she was correct in striking out the summonses on the basis of a failure to comply with the applicable time limits.

Mr Will Fennelly B.L. on behalf of the appellant submits that the District Judge was wrong to strike out the summonses. He makes this submission on the basis that the time limits to which I have already referred apply only to summary offences, and that in the case of charges being brought by way of indictment, no time limits are provided. He submits that the District Judge misapplied the decision in DPP v. Nolan when she interpreted same as applying to all summonses, including those charging offences on indictment.

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Section 51(3) of the 1989-Act provides as follows:

"Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, but without prejudice to subsection 4, proceedings for an offence under any of the relevant statutory provisions may be instituted at any time within one year after the date of the offence.”

Section 1(7)(a) of the 1986 Act provides:

“Any provision made by or under any statute passed before the passing of this Act relating to the time for making a complaint in relation an offence shall apply, with any necessary modification, in relation to an application under subsection (4) of this section.”

Section 10(4) of the Petty Sessions (Ireland) Act, 1851 ("the 1851 Act") provides as follows:

“In all cases of summary jurisdiction the complaint shall be made when it shall relate to the non-payment of any Poor Rate ... ... ... within one year from... ... ...and when it shall relate to any trespass, within two months from.........and in any other case within six months from the time when the cause or complaint shall have arisen, but not otherwise.”

It is worth noting at this stage, that Section 11 of the 1851 Act makes certain provisions, inter alia, for the issue of summonses in respect of indictable crimes and offences, but contains no provision as to any time limit from the date of the offence within which any such summons shall be issued.

Mr Fennelly submits that since there are no time constraints in respect of indictable offences under the 1851 Act, the meaning of Section 1(7)(a) of the Courts

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(No.3) Act, 1986 must be that there are no time limits in respect of such summons under that Act also. The words "any provision-made by or under any statute passed before the passing of this Act relating to the time for making a complaint in relation to an offence shall apply" is, he submits, clearly referable to the 1851 Act, and accordingly for this court to hold that the six month time limit applied to indictable offences as well as summary offences would go against the clear meaning of Section 1(7)(a) of the 1986 Act.

In relation to the summonses brought under the 1989 Act and the Regulations, and to the time limit of one year for the commencement of proceedings, Mr Fennelly submits that it clear from the express wording of Section 51(3) of that Act that the time limit refers only to summary offences, and -not to offences charged by way of indictment, and that to conclude otherwise would mean that the legislature has in passing Section 51(3) decided to single out indictable prosecutions from all other indictable offences and to apply a 12 month time limit to those, where no time limit applied to any others.

Section 51(3) of the 1989 Act (as amended) reads as follows:

“Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, proceedings for any offence under any of the relevant statutory provisions may be instituted at any time within one year after the date of the offence.”

Mr Fennelly submits that given the fact that section 10 (4) of the 1851 Act clearly refers only to time limits for the commencement of summary proceedings, it is inevitable that section 51(3) of the 1989 Act is similarly confined, and to find otherwise is to render completely superfluous the words "Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851" in that section, and would in addition ignore the context generally of section 51 of the 1989 Act which specifically deals with the prosecution of summary offences (see section 51, subsections (1) and (2) thereof). He submits that any finding to the contrary would be absurd and that if such was deemed to have been intended by the legislature, such intention would have to be expressly stated. In this regard he referred the

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court to the judgment of Henchy J. in Minister for Industry and Commerce v. Hales (1967) 50 at page 75, where the learned judge stated:

“Counsel for the Society submits that the object of the Act may be seen more clearly by looking at its long title. I take it to be established by the modern authorities that the long title is part of the Act (see Maxwell on Interpretation of Statutes, I1th Ed., p. 41), but there also modern authorities that say that-it is not permissible to call in aid the long title for the purpose of limiting the interpretation of a statutory provision that is clear and unambiguous - see Ward v. Holman(1). But I do not think that the most indulgent apologist for the draftsman would suggest that s. 3, sub-s 3, of the Act is clear and unambiguous in its import. A literal interpretation of it would say that it empowers the Minister to deem literally any person to be a ‘worker’ for the purposes of the Act; but since the Act is confined to relations between ‘workers’ and ‘employees’, such a reading would be manifestly absurd.”

Mr Fennelly submits that all words used in an Act have a meaning, and cannot be regarded as being superfluous, and referred the court to a passage from the judgment of Egan J. in Cork County Council v. Whillock (1993) 1 I.R. 231 at page 239 where it states:

“There is abundant authority for the presumption that words are not used in a statute without a meaning and are not tautologous or superfluous, and so effect must be given, if possible, to all the words used, for the legislature must be deemed not to waste its words or say anything in vain.”

Mr Shane Murphy S.C. for the Respondents submitted that the 1989 Act (as amended) and the Regulations made thereunder established a regime whereby the National Authority could prosecute certain offences summarily. He referred to the decision of Murphy J. in National Authority for Occupational Safety and Health v. Fingal County Council (1997) 1 ILRM 128 which dealt with an ambiguity arising from the wording of section 51(4) of the 1989 Act. That judgment in fact led the legislature to make good the lacuna identified in the section by- Murphy J. by amending the section

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under section 38 of the 1997 Act. Mr Shane Murphy relies on that judgment for his submission that the intention of the Oireachtas must be obtained from the words used in the legislation, and he also relied on the maxim ‘generalia specialibus non derogant, and in that regard he submits that the 1989 Act set up a particular scheme for regulating aspects of health and safety in the workplace, and that it is clear that the Oireachtas clearly intended that all prosecutions whether summary or on indictment, were to be commenced within one year of the offence, or within six- months of the date of any special report, report or inquest in accordance with Section 51 (4) of the Act. He submits that the application of the maxim referred to means that where as in this case the Oireachtas has made a particular provision, the general provision in the Petty Sessions (Ireland) Act, 1851 relating to prosecutions by indictment cannot override the specific time provision in the 1989 Act, and that therefore the twelve month time limit must apply to all summonses, and not simply to summary offences. He referred also in this regard to the wording of Section 51 (3) of the 1989 Act where it states that “proceedings for any offence under any of the relevant statutory provisions may be instituted at any time within one year after the date of the offence.” (my emphasis)

Mr Murphy in his written submissions submits that the 1989 Act clearly created a range of offences and provided that some of those offences may be prosecuted on indictment and that specific fines have been provided for persons who are convicted on indictment. I am not certain that this is strictly correct in as much as section 48 describes the offences themselves, and section 49 then goes on to provide that on summary conviction a person found guilty shall be liable to a fine not exceeding £1000, and on indictment to a fine. The Act, however, does not appear to specify which offences shall be prosecuted summarily and which on indictment. He also refers to the fact that section 51(2) makes reference to the authority of the National Authority to prosecute summary offences under any of the relevant statutory provisions, but that in section 51(3) there is no mention of summary offences in particular when dealing with the twelve month time limit, but only to "any- offence under any of the relevant statutory provisions”.

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It think it is relevant to note at this stage also, though I was not referred to it, that section 51(4) of the 1989 Act which provides that where a report is obtained or an inquest is held summary proceeding against any person liable to be proceeded against in respect of the contravention may be commenced at any time within six months of the making of the report or the conclusion of the inquest. This section clearly does not relate to proceedings by way of indictment, although proceedings by way of indictment are clearly contemplated by the Act, given the specification of penalties for conviction on indictment in section 49.

In relation to the application of the decision in DPP v. Nolan to the summons brought under section 13 of the 1997 Act, Counsel submits that since the prosecution had invoked the summary summons procedure at the outset of this case, and since the offence is an indictable offence triable summarily, he is bound by the time limit imposed in respect of summary offences under section 1(7)(a) of the 1986 Act.

Conclusion:

There is no doubt but that a penal statute must be strictly interpreted strictly, and that as with any other statute, it must be interpreted by reference to the ordinary meaning of the particular words used in the Statute. If any ambiguity remains after attempting such an exercise, the resort can be had to what are known as the canons of construction. Both Counsel agree with this. However each contends that a strict interpretation of the legislation at the heart of this case ought to yield a different result.

Firstly, I am satisfied that the District Judge was wrong in her application of the decision in DPP v. Nolan to the summonses charging offences under section 13 of the Non-fatal Offences Against the Person Act, 1997. That is an indictable offence, and it is clear that DPP v. Nolan relates only to summary offences in the context of Section 1(7)(a) of the 1986 Act.

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In relation to the other summonses brought under the 1989 Act and the Regulations made thereunder the matter is more complicated. It is true that the Act brought into being a regime for the regulation of certain matters concerned with health and safety, and to that extent could be regarded as a discrete regime, not necessarily bound by Acts of more general application, as submitted for by Mr Murphy on behalf of the Respondents when he referred to the maxim "generalia specialibus non derogant”, but in this case I am not satisfied that this maxim is apposite in this case, since as I shall outline I am of the view that it was not intended by the legislature when it enacted the 1989 Act, that the relevant provisions of the 1851 Act would not apply in relation to indictable offences. In my view, a literal interpretation of section 51 clearly permits of the fact that the twelve month and six month time limits referred to in that section are applicable only to offences being prosecuted summarily.

Quite obviously the Act contemplates a situation in which some offences under the Act and the Regulation made thereunder will be tried by indictment as under section 49 specific penalty provisions are set out in relation to conviction on indictment. Then section 51(1) provides that any summary offence may be prosecuted by the National Authority. By making this specific provision, it is clearly contemplated that any prosecution on indictment will remain to be prosecuted in the normal way at the suit of the Director of Prosecutions.

Section 51(4) again as I have already referred to, makes certain provision for a six month time limit to be applicable to summary proceedings where a report has been obtained or an inquest held. This subsection is silent in relation to prosecution by way of indictment.

The problem arises only in relation to section 51(3) of the Act. On a first reading of this subsection, it is possible to assume that since it refers to “ proceedings for any offence under any of the relevant statutory provisions”, the time limit of twelve months must apply also to indictable offences. But, as submitted by Mr Fennelly on behalf of the appellant, such an interpretation would ignore completely the opening words of the

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subsection “Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851”. That section which I have set out in this judgment relates only to summary offences. The remainder of section 51 deals only with what is to happen in relation to summary matters. In my view it is therefore clear that the whole context of section 51 is offences being prosecuted summarily. If the legislature had intended to restrict the commencement of offences by indictment to a twelve month time limit, it would firstly have stated in section 51(3) “Notwithstanding section 10(4) and section 11 of the Petty Sessions (Ireland) Act, 1851”, and secondly would need to have either deleted the word “summary” from the final paragraph of the subsection, or have included after the words “summary proceedings” the words “or proceedings on indictment”, so that in either case the provisions of subsection would apply.

I am therefore satisfied that the meaning of the section is clear and unambiguous, and that accordingly the District Judge-was incorrect in striking out the summonses on the grounds of failure to comply with the applicable time limits.