THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURRAY J.
HARDIMAN J.
GEOGHEGAN J.
1998 No. 178 JR
208/99
BETWEEN:
T.D.I. METRO LTD. AND PATRICK HALLIGAN
Applicants/Respondents
and

JUDGE SEAN DELAP
Respondent
and

FINGAL COUNTY COUNCIL
Notice Party/Appellant
and

THE ATTORNEY GENERAL
Added Notice Party

[Judgments by Keane C.J., Geoghegan J. and Hardiman J.; Denham J. and Murray J. agreed with Keane C.J. and Geoghegan J.]

JUDGMENT delivered the 5th day of July 2000 by Keane C.J.

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(2)

I agree with the judgment of Geoghegan J. There are two matters in respect of which I would wish to add some short observations.

It was urged on behalf of the applicants/respondents that, in construing the amendment effected to s. 80 of the Local Government (Planning and Development) Act 1963 by s. 13 of the Local Government (Planning and Development) Act 1982, the court should have regard to the speech in Dáil Éireann of the then Minister for the Environment when opening the debate on the second stage of the bill which subsequently became that Act. While not expressing any view as to whether this was an admissible guide to the construction of the relevant provision, the court allowed counsel for the applicants/respondents to open the relevant passage from the debate.

In the event, the passage in question from the Minister’s speech proved of little, if any, assistance in resolving the problem of interpretation with which the court was confronted in this case. In the circumstances, I would expressly reserve for consideration in an appropriate case the question as to the extent, if any, to which parliamentary debates are admissible in the construction of legislation enacted by the Oireachtas. We were referred to the decision of this court in The People (Director of Public Prosecutions) .v. Michael McDonagh [1996] 1 IR 565. That case, however, was not concerned with anything that

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(3)

was said during the course of parliamentary debates on a particular measure but with the legislative history of a particular provision. While there are undoubtedly authorities both of the High Court in this jurisdiction and the House of Lords which lend support to the proposition that in certain circumstances regard may be had to what was said during the course of the parliamentary debates on a particular measure in order to ascertain the meaning of one or more of its provisions, they were not opened to the court and, in the absence of any detailed argument on the issue, this court should not, in my view, express any concluded view as to how it should be resolved.

Another issue arose during the arguments as to the stage at which the Director of Public Prosecutions should assume the conduct of a prosecution, assuming, as the court now finds to be the case, that the planning authority were entitled at the least to institute the proceedings. In Cumann Lúthchleas Gael Teoranta .v. Judge Windle & Others [1994] 1 IR 525, Finlay C.J. said

“I am also satisfied that, of course, as is usual in modern legislation, statutes may provide by express terms for the institution of proceedings by bodies corporate, and indeed, the entitlement under s. 6 sub-s. 1 of the Act of 1981 of a fire authority to institute summary proceedings is such a provision. There could be no reason why the Oireachtas could not in its discretion, in any

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particular statute, provide that a body corporate might institute proceedings for an indictable offence and prosecute them up to the stage of return or refusal of informations.”

It appeared to have been accepted, during the course of the argument in the present case, that if the three preconditions to a summary disposition of the case required under s. 9 of the 1982 Act were not met, the case would have to be adjourned in order to enable the Director of Public Prosecutions to take over the prosecution. I cannot see why that should be so and it does not appear to have been the view of Finlay C.J. in the passage which I have just cited. In such a case, the District Judge retains seisin of the case and it remains one being heard in a court of summary jurisdiction on a complaint or summons and not on indictment. Until such time as the District Judge has determined to return the defendant for trial, a body such as a planning authority statutorily authorised to prosecute would appear to be in the same position as a common informer and there seems no reason why it should yield place to the Director of Public Prosecutions at any earlier stage than the return for trial. I express that view with some hesitation, however, since the matter was not fully argued in the hearing before this court.

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(5)

I would allow the appeal and substitute for the order of the High Court an order refusing the application for judicial review by way of certiorari.

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THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURRAY J.
HARDIMAN J.
GEOGHEGAN J.
1998 No. 178 JR
208/99
BETWEEN:
T.D.I. METRO LTD. AND PATRICK HALLIGAN
Applicants/Respondents
and

JUDGE SEAN DELAP
Respondent
and

FINGAL COUNTY COUNCIL
Notice Party/Appellant
and

THE ATTORNEY GENERAL
Added Notice Party
JUDGMENT delivered the 5th day of July 2000 by Geoghegan J.

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This is an appeal from an order of certiorari made by the High Court (McGuinness J.) on the 9th of June, 1999 in respect of an order of Judge Delap Respondent herein on the 26th February, 1998 on foot of which the Applicants on the Judicial Review Application and Respondents on the appeal were convicted of an offence under Section 24 of the local Government (Planning and Development) Act 1963 as amended. Rather than set out in detail the grounding statement and the statement of opposition, particulars of which are fully set out in the judgment of the learned High Court judge, I will briefly explain what was really at issue.

Section 24 of the Local Government (Planning and Development) Act, 1963 contains the basic statutory obligation to obtain planning permission for development. As originally enacted sub-section (3) of that section provided that a person who carried out development without permission was guilty of a summary offence and penalties in the form of fines were set out in the sub-section both for first offence and continuing offences. Section 80 (1) of the same act as originally enacted provided that an offence under the Act might be prosecuted by the Planning Authority in whose area the offence was committed. By Section 8 (3) of the Local Government (Planning and Development) Act 1982 an offence under Section 24 of the 1963 Act was made an indictable offence. But under the provisions of Section 9 of the same Act a

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judge of the District Court was given jurisdiction to try summarily such indictable offence if:-
“(a) the (judge) is of opinion that the facts proved or alleged against the defendant charged with such an offence constitute a minor offence fit to be tried summarily,

(b) the Director of Public Prosecutions consents, and

(c) the Defendant (on being informed by the (fudge) of his right to be tried by a jury) does not object to being tried summarily...”

Section 13 of the 1982 Act amends Section 80 of the 1963 Act by inserting the word “summarily” after the word “prosecuted” in sub-section (1). The new sub-section following on the amendment reads as follows:-
“(1) An offence under this Act may be prosecuted summarily by the Planning Authority in whose area the offence is committed”.

Section 9 (3) of the 1982 Act became replaced by Section 20 (3) of the Local Government (Planning and Development) Act, 1992. But the substitutions still had the effect that an offence under Section 24 (3) of the 1963 Act was an indictable offence and the purpose of the new statutory provision was merely to increase penalty. By Section 20 (7) of the 1992 Act a consequential amendment was made to Section 9 (1) of the Act of 1982 by substituting a reference to Section 20 (3) of the 1992 Act for the reference to Section 8 (3) of the 1982 Act. Nothing turns on the amendments to the 1982 Act made by the

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1992 Act. Under both Acts a contravention of Section 24 of the 1963 Act is made an indictable offence whereas prior to 1982 it was a summary offence.

In this case Fingal County Council took out a summons for an offence under Section 24 of the 1963 Act with a view to it being tried summarily assuming that the statutory conditions were fulfilled and the District judge accepted jurisdiction. The Applicants on the judicial review application maintain that they were not legally permitted to do that because under the provisions of Section 80 (1) of the 1963 Act as amended by Section 13 of the 1982 Act a planning authority has power only to prosecute “summarily”. If the offence, as this offence was, is an indictable offence the Applicants say that the County Council can never at any stage be considered as having been prosecuting “summarily” and that therefore the District judge had no jurisdiction to make the order he did make. The logic of the submission is that where any contravention of Section 24 of the 1963 Act however trivial, the prosecution must be brought from the very beginning either by the Director of Public Prosecutions or by a common informer. In the latter case of course the prosecution could only be brought up to the stage of return for trial if the conditions for summary trial could not be fulfilled.

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The Applicants’ objection on jurisdiction grounds to Fingal County Council bringing the prosecution were raised in the District Court and were rejected by Judge Delap. But on the judicial review application in the High Court McGuinness J. agreed with the Applicants’ objections and quashed the order of the District Court. A great deal of the argument on behalf of the Applicant, both in the High Court and in this Court, was based on the decision of the Supreme Court in Cumann Lúthchleas Gael Teoranta .v. Judge Windle & Others [1994] 1 IR 525. In arriving at the view which she took, McGuinness J. placed heavy reliance on that case also and in particular the reasoning of Finlay C.J. in the judgment of the Court. For the reasons very clearly set out in the Attorney General’s written submissions before this court I would respectfully disagree with the view that the Cumann Lúthchleas case is relevant. The issue in this case is the meaning to be assigned to the words ‘prosecuted summarily” in Section 80 of the 1963 Act as amended by Section 13 of the 1982 Act. But those words are not anywhere contained in the Fire Services Act, 1981 which was the Act under consideration in the Cumann Lúthchleas case. Nor in my view does the reasoning of the former Chief Justice in that case have any bearing on the point at issue in this case.

The Cumann Lúthchleas case would appear to be authority for the proposition that a body corporate cannot exercise the rights of a common

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informer unless a statute specifically provides otherwise. There was evidently an issue in that particular case as to whether in initiating the prosecution the statutory body was alleging a summary offence or an indictable offence intended to be tried summarily. O’Hanlon J. in the High Court held that the offence was an indictable offence and that finding was upheld by the Supreme Court. By Section 6 of the relevant statute in that case, namely the Fire Services Act, 1981:-

“Summary proceedings for an offence to which Section 5 (1) applies may be brought and prosecuted by the fire authority for the functional area in which the offence is alleged to have been committed or by any other person”.

But Section 5(1) had only referred only to summary offences. The words ‘prosecute summarily” were not contained in that Act and the issues arising in this case did not arise in that case. It was perfectly clear in that case that the statutory power of the fire authority to prosecute was confined to summary offences. The only question to be determined was whether the fire authority could fall back on the common law rights of a common informer and prosecute the indictable offence on that basis. O’Hanlon J. held that to be the position but he was overruled by the Supreme Court.

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The case before this court is quite different. Fingal County Council has never alleged that it was prosecuting as a common informer. Furthermore the statute does not clearly confine the power of the planning authority to prosecute to summary offences as the Fire Services Act, 1981 did in relation to the statutory body under that Act. As already pointed out under Section 80 of the 1963 Act as amended by Section 13 of the 1982 Act;-
“An offence under this Act may be prosecuted summarily by the planning authority in whose area the offence was committed”.

I would again point out that the outcome of this case depends entirely and exclusively on the interpretation the court puts on the expression “prosecuted summarily”. The reason for the addition of the word “summarily” does not seem to me to lend the court any assistance in interpreting the combined words. Once an indictable offence was introduced it was necessary to amend the Act so as not to leave it open to interpretation that the planning authority had power to prosecute upon indictment. But it does not make crystal clear whether the net result is that the planning authority may only prosecute for summary offences or whether they can also prosecute for indictable offences provided they are being tried summarily. The reason for the amendment therefore not providing any assistance, the court must interpret the words as best it can. The question is what did the Oireachtas intend. I am of opinion that there is no reason whatsoever to give the expression “prosecuted summarily” a narrow

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interpretation so as to confine it to prosecutions for summary offences. Even applying the strict canons of construction it does not require such an interpretation and I cannot believe that such an interpretation would have been the intention of the Oireachtas. A failure to comply with a planning permission or a failure to obtain a planning permission contrary to Section 24 of the 1963 Act may in numerous instances be a very minor matter and it would be strange if the Oireachtas intended that although the planning authority would be the normal prosecuting authority for the summary offences it could not deal with minor incidents of indictable offences clearly thought fit to be tried summarily. An objection to this line of reasoning which was aired at the hearing of the appeal was that if the District Court judge ultimately held that the offence was of a nature that it should not be tried summarily, then the commencement of the prosecution by the planning authority was ultra vires. I do not agree with that objection. What the Act allows the planning authority to do is a certain activity namely to “prosecute summarily”. Up to the stage when the District Court declines jurisdiction the planning authority, is doing nothing unlawful. The activity in which the planning authority is engaged is the activity permitted by Section 80 of the 1963 Act as amended by Section 13 of the 1982 Act. The declining of jurisdiction by the District Court could not have the effect of retrospectively rendering invalid the prosecution up to that moment.

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The learned High Court judge also referred to Section 9 of the Criminal Justice (Administration) Act, 1924 and to Article 30.3 of the Constitution. Under the constitution all offences other than minor offences must be tried by jury. Minor offences however can be dealt with by a court of summary jurisdictions. Article 30.3 is merely providing that prosecution before a judge and jury of a non-minor offence must be brought in the name and at the suit of the Attorney General or other person authorised in accordance with law to act for that purpose. It is clear that that constitutional provision did not prevent common informers proceeding up to the moment of return for trial and that is because it is dealing with the actual prosecution upon indictment, The position is similar in relation to Section 9 of the Criminal Justice (Administration) Act, 1924. That is referring only to “criminal charges prosecuted upon indictment”. I do not think that for the purposes of the arguments in this case anything turns on either of the constitutional provision or Section 9 of the 1924 Act.

For the reasons which I have indicated I would allow the appeal and set aside the order of certiorari.

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THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURRAY J.
HARDIMAN J.
GEOGHEGAN J.
1998 No. 178 JR
208/99
BETWEEN:
T.D.I. METRO LTD. AND PATRICK HALLIGAN
Applicants/Respondents
and

JUDGE SEAN DELAP
Respondent
and

FINGAL COUNTY COUNCIL
Notice Party/Appellant
and

THE ATTORNEY GENERAL
Added Notice Party
JUDGMENT delivered the 5th day of July 2000 by Hardiman J.

Section 9 of the Criminal Justice (Administration) Act 1924 provides:

“(1) All criminal charges prosecuted upon indictment in any Court shall be prosecuted at the suit of the Attorney General of Saorstát Éireann.

(2) Save where a criminal prosecution in a Court of summary jurisdiction is prosecuted by a Minister, Department of State, or a person (official or unofficial) authorised in that behalf by the law for the time being in force, all prosecutions in any Court of summary jurisdiction shall be prosecuted at the suit of the Attorney General of Saorstát Éireann.”

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(2)

Making the necessary allowances for changes in the status and description of the State and the Attorney General, and the statutory position of the Director of Public Prosecutions, the above provision requires that all prosecutions on indictment be prosecuted at the suit of a law officer. It also requires that criminal prosecutions in a Court of summary jurisdiction be prosecuted at the suit of a law officer unless some other person or body is authorised to prosecute them by the law for the time being in force.

The question in this case is whether Fingal County Council is a “person (official or unofficial)” authorised by the law now in force to prosecute two complaints alleging offences contrary to Section 24 of the Local Government (Planning and Development) Act 1963, as amended by Section 8 of the Local Government (Planning and Development) Act 1982 and Section 20 of the Local Government (Planning and Development) Act 1992.

The statutory provisions mentioned above have been set out and analysed in the judgment of the High Court and the judgment of Mr Justice Geoghegan in this Court. I gratefully adopt what both learned judges say. I am also happy to adopt the history of the present proceedings as set out in the judgment of Mr Justice Geoghegan.

There is only one relevant law in force and accordingly this case centres on the construction of Section 80(1) of the Act of 1963 as amended by Section 13 of the Local Government (Planning & Development) Act, 1982. This provides that:

“An offence under this Act may be prosecuted summarily by the Planning Authority in whose area the offence is committed”.

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(3)

As appears from the judgments referred to the word “summarily” was inserted by the Act of 1982 which also made provision for the prosecution of the offence created by Section 24 either summarily or on indictment.

History of the Complaints

The complaints in question were made on foot of a manager’s order dated the 9th September 1997. This, in turn, was made on the basis of a recommendation by a senior administrative officer headed “Section 24 of the Act of 1963” and stating, so far as material:

“I recommend that prosecution proceedings be instituted against the owner of the lands, Mr Patrick Halligan, St. Joseph’s, Ballough, Balrothery, Co. Dublin, and the occupiers of the lands T.D.I. Metro Limited, 26 Fitzwilliam Square, Dublin 2 for the erection of an unauthorised advertising hoarding.”

The manager’s order made on foot of this recommendation was as follows:

“The law agent is hereby instructed to institute prosecution proceedings against the owner of lands Mr Patrick Halligan   and the occupier of lands, T D. I. Metro Limited... .for the erection of unauthorised advertising hoarding.”

It will be observed that the order on foot of which the complaints were made describes the proceedings directed to be instituted merely as “prosecution proceedings”. The complaints actually made were in respect of an offence which was at the time of the complaint, and had been since 1982, an indictable offence. It was, however, an offence which could be dealt with summarily on three conditions as follows:

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(4)

(a) That the District Judge was of the opinion that the facts alleged constituted a minor offence fit to be tried summarily.

(b) That the Director of Public Prosecutions consented to summary disposal and

(c) That the Defendant, on being informed of his right to be tried by jury, did not object to be tried summarily.

When the complaints came before the learned District Judge for hearing, the Defendants solicitor, Mr Peter Dempsey stated that they were challenging the “jurisdiction” of the County Council to prosecute the relevant offences on the basis that the complaints were instituted in respect of an indictable offence. When this contention was rejected by the learned District Judge the Defendants opted for summary jurisdiction. The statement of opposition contends that, by so doing, they became estopped from maintaining their challenge to the Council’s power to institute the proceedings in the present case. However, the uncontradicted evidence in the supplemental affidavit of Mr Dempsey was that 

“it was at all times clear to the Respondent that the Applicants did not accept that the Notice Party, Fingal County Council had any jurisdiction to prosecute the said offences”

and I did not understand the estoppel point to be vigorously pressed on the hearing of this appeal.

Having been convicted of the said offences the Defendants, as Applicants, sought Orders of Certiorari in relation to the convictions and were granted these orders by the High Court (McGuinness J.) on the 9th June 1999. The County Council has appealed against this order and, by leave of the Court, the Attorney General was joined to the proceedings and made submissions on the hearing of the appeal.

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(5)

The Net Point

To my mind, the net point disclosed by the pleadings and submissions whether Fingal County Council, in making the complaint giving rise to the District Court proceedings, on foot of the manager’s order set out above, was acting within the power conferred by Section 80 of the principal Act as amended. It is not contended that they had any other power to institute the said proceedings. In other words, was the making of the complaint (alleging against each of the Applicants the indictable offence created by Section 24) mandated by the section which provides that
“an offence under this Act may be prosecuted summarily by the Planning Authority in whose area the offence is committed”.

The Statutory Context

The Local Government (Planning & Development) Acts 1963 to 1993, as they were at the relevant time, constitute for present purposes a self contained statutory code. The indictable offence contrary to Section 24 is provided within the code as are the circumstances in which such an offence may be tried summarily. It is therefore strictly unnecessary (though it may be illuminating) to have regard to the more general provisions in the Act of 1924, the Criminal Justice Act, 1951, the Criminal Procedure Act, 1967, or else where, whereby an indictable offence may in certain circumstances be prosecuted summarily. But it is relevant to note the background, whereby the offence constituted by Section 24 was originally a summary offence only, rendered indictable by the Act of 1992. The sole amendment in the power to prosecute occasioned by this reconstitution of the offence as an indictable one, was the insertion of the adverb “summarily” in Section 90 of the principal Act, by Section 13 of the Act of 1982.

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(6)

It appears indisputable, first that the County Council has no statutory power in any circumstances to prosecute on indictment and indeed could not have such power by virtue of the Act of 1924 quoted above, and more fundamentally by virtue of Article 30.3 of the Constitution. Secondly, the Applicant as a body corporate is incapable of prosecuting, and continuing to return to trial stage, an indictable offence as a common informer: see Cumann Lúthchleas Gael Teoranta .v. Judge Windle & Others [1994] 1 IR 525.

Status of the Complaint

Each complaint was in respect of an indictable offence. Having regard to the immediately foregoing matters, it must I think be presumed that it was instituted in the hope that the District Judge would consider it suitable for summarily trial, that the Director of Public Prosecutions would consent and that the Defendants would not object to summary disposal. It is conceded by the County Council that if any of these preconditions were not eventually met they could carry the matter no further and would have to cease to act as Prosecutor. In respect of the second precondition, however, they were armed in advance with a general letter from the Director, dated the 28th May 1997 in answer to a letter from the Law Agent in April of that year, in which a Legal Assistant on behalf of the Director said:

“I confirm that the Director of Public Prosecutions elects for summary disposal of all indictable cases arising out of a Local Government (Planning & Development) Acts, the Casual Trading Acts and the Fire Services Act 1981 where his consent falls to be given unless the case is referred to this office with a request for a prosecution on indictment in which situation a specific direction will be given.”

No point was taken in the High Court or in this Court as to whether this general form of “election” in all such cases except those where the Local Authority wishes to proceed on

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(7)

indictment is capable in law of constituting a “consent” within the meaning of Section 9(1) of the Act of 1982. Assuming it to be a valid consent, it leaves outstanding the question of whether the initiation of a prosecution for an indictable offence, in the hope that the other two preconditions to its summary disposal would eventually be met, is or is not an act of summary prosecution.

The complaint is the foundation of the jurisdiction of the District Court to enter upon the hearing of the case at all, whether the case itself be in respect of a summary offence only, an offence triable either summarily or on indictment or a purely indictable offence: see Attorney General (McDonnell) v Higgins [1964] IR 374, affirmed in The State (Clarke) v Roche [1986] IR 619. Once a complaint is made in respect of an indictable offence, the offence retains the character of an indictable offence even after (if that occurs) the conditions for summary disposal are met: see Attorney General v Conlon [1937] IR 762. Indeed, in D.P.P. v Logan [1994] 2 ILRM 229 the Director of Public Prosecutions himself submitted, as recorded in the judgment of Blayney J. at page 234:

“That the nature of the offence did not change by reason of the manner in which it was prosecuted. This was an offence which was capable of being tried on indictment and accordingly it was an indictable offence for the purposes of Section 7 (of the Criminal Justice Act 1951).”

Both in Conlon’s case and in Logan’s case were efforts by the respective prosecutors to avoid a salient feature of most summary offences, the six month time limit provided by Section 10(4) of the Petty Sessions (Ireland) Act, 1851, by relying on the indictable nature of the offence. Logan’s case featured a charge of common assault which, as has often been remarked, is sui generis from the point of view of procedure because Section 42 of the Offences Against the Person Act, 1861 provides for a summary trial whereas Section 47

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(8)

provides for trial on indictment, the election being that of the Prosecutor. Section 42 was amended by the Criminal Justice Act 1951. The Act provides one of the earliest, and in practice the most commonly used, examples of the phrase “may be summarily prosecuted”. Subsection (3) of Section 11 reads as follows:

“Common assault and battery may be summarily prosecuted on complaint made by or on behalf of the aggrieved person or otherwise.”

The statutory provisions in relation to assault, however, like those in relation to offences under the Fire Services Act which was in question in the Cumann Lúthchleas Gael case mentioned above, are of little direct assistance in the present case because each of these Statutes provides for summary and indictable offences in different sections. Thus, as Logan’s case held, if a Complainant makes a complaint of assault contrary to Section 42 of the 1861 Act it is clear that he is alleging a summary offence only and the fact that the same actions constitute, independently, an indictable offence is irrelevant to the disposal of the offence actually charged.

The County Council’s capacity to make the complaints in this case can have no source other than Section 80(1) of the Act of 1963 as amended. If, therefore, the making of the complaint was intra vires, it can only be on the basis that the making of the complaint for an indictable offence is within the authorised activity of “prosecuting summarily”.

I have already held in ease of the County Council, that they must be regarded as having instituted the present prosecution in the hope that the precondition to summary disposal will be met. It is, however, relevant to note that the County Council had no power to determine whether any one of the three preconditions would be in fact be met, these matters being entirely under the control of the learned District Judge, the Director of Public

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(9)

Prosecutions, and the Defendant respectively. Nor is there any question of their being entitled to prosecute summarily unless some event occurred to prevent it: the statutory scheme does not envisage a power in the learned District Judge to decline jurisdiction, but rather a positive obligation on him to consider whether or not the alleged offence is fit to be tried summarily, and then to seek the views of the D.P.P. and the Defendant, both of whom must opt summary disposal before the case can be heard in that way.

Accordingly, the question of the core of this case is not whether the phrase “prosecuted summarily” means that the Planning Authority may only prosecute for summary offences, or whether it means they can also prosecute for indictable offences provided they are being tried summarily, but whether they can institute as Prosecutor “prosecution proceedings” for an indictable offence, and compel the attendance of the Defendant in Court to answer their complaint, at a time when it is not known whether the offences would be tried summarily or otherwise. The precise time is important: I do not consider that their action in instituting the proceedings can be validated or invalidated retrospectively depending on whether the preconditions to summary disposal are met or not.

In the submissions in this Court Mr McGuinness S.C. for the Applicants focussed his argument entirely on the time of making the complaint. The complaint, he said, was not validly made because it was a complaint in respect of an indictable offence made at a time when the entity making it could have no knowledge of how the complaint would be dealt with.

In reply, Counsel for the Appellant Local Authority and for the Attorney General did not dispute that this was the appropriate time at which to consider whether the Authority was entitled to act as it did. Instead, Counsel for each of these parties made submissions to the general effect that unless and until the offence complained of is ordered to

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(10)

be disposed of on indictment, it should be regarded as being of a summary nature. Mr O’Reilly S.C. for the Planning Authority submitted that the prosecution was a summary one until “something occurs to make it indictable”. Mr Charlton S.C. for the Attorney General contended that the effect of Section 80(1) as amended is to confer on the Planning Authority a right to conduct a prosecution if it is “a prosecution initiated in a summary manner”.

I do not agree that an offence which is an indictable offence capable of being tried summarily if certain conditions are met is “summary until something occurs to make it indictable”. On the contrary, I consider that the authorities already cited establish that an indictable offence retains its character as such even if it is in fact dealt with summarily. Secondly, I consider it important that the form of the Statute in this case establishes three preconditions to the indictable offence being dealt with summarily, but none to its being dealt with on indictment. In other words it would be dealt with on indictment unless the preconditions are met. Thirdly, this situation is an analogous with that applying to all prosecutions for an indictable offence which come before the District Court, pursuant to Section 5 of the Criminal Procedure Act, 1967:

“Where an accused person is before the District Court charged with an indictable offence, then, unless the case is being tried summarily or the accused pleads guilty, the justice shall conduct a preliminary examination of the charge in accordance with the provisions of his part.” (Emphasis added).

All these matters suggest that, contrary to the Planning Authority submission, an indictable offence will be dealt with on indictment “unless” something occurs to allow summary disposal. It will however be observed that the matters which may occur to permit

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of summary disposal can only occur in the District Court, after the Defendants attendance there has been duly procured.

In relation to Mr Charleton’s submission, I do not accept that it can properly be said that either of these prosecutions is “a prosecution initiated in a summary manner”. The mode of initiation of the prosecution to this case was the making of a complaint alleging an indictable offence. This mode of initiation would of necessity have had to be adopted regardless of how the prosecution was eventually dealt with, and regardless of what the local authorities intentions in that regard were. It does not, therefore, seem to me that the mode of initiation of the prosecution actually adopted can be described by the term “initiated in a summary manner”. The judgment of the learned trial judge reveals that, in the High Court, Counsel for the Planning Authority made a further submission that the procedure adopted in these prosecutions up to the time of the Defendants election in the District Court was a purely administrative one involving the hearing of complaints by a judge and the issuing and service of summonses and, subsequently, the procedure under Section 9 of the Act. This submission is obviously without validity and was not pursued in this Court. The State (Clarke) v Roche, cited above, held that the consideration of a complaint and the issuing of a summons on foot of it is “a judicial as distinct from an administrative act” and it must be quite clear that a subsequent consideration of the facts alleged by the Complainant before the District Judge with a view to seeing whether they are fit for summary disposal is an essentially judicial act. Following the decision in Clarke v Roche, the Courts (No. 3) Act, 1986 provided a separate method of instituting a prosecution by the making of an application for a summons which is indeed considered as an administrative matter. This procedure, however, was not employed in this case.

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(12)

All of these submissions have one feature in common. They focus on the period before any of the relevant parties have had to address their mind to the question of the manner in which this indictable offence would be tried. They all rely fundamentally on the proposition that, prior to that stage being reached, the offences should be regarded as summary, or at least as not having crystallised as indictable. Until that stage is reached, the arguments run, the actions of the Prosecutor must be regarded as being within the permitted activity of “prosecuting summarily” simply because there as yet no indictment nor any certainty of one.

I have already set out a number of reasons, based both on authority and on the statutory format, on the basis of which I disagree with the submissions made. But altogether apart from these, I cannot agree that there is no indictable offence being prosecuted until after the procedure under Section 9 is completed.

The meaning of the word “prosecuted” as it appears in Article 30.3. of the Constitution was considered by Chief Justice Ó Dálaigh in the judgment of the Court in The State (Ennis) v Farrell [1966] IR 107. At page 121 the learned Chief Justice said:

“…. the term, ‘prosecuted’ in my judgment, includes in the case of an indictable offence, both the initiation of the prosecution and the preliminary investigation which follows such investigation. The term ‘prosecuted’ is to be understood in its widest sense. Reference to the Irish text confirms this, where the equivalent used is ‘tugtar’, ‘brought’.”

The significance of this passage is to emphasise that the initiation of the case is part of what is comprehended in the term “prosecution” and that a body cannot be said to be

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engaged in an act of prosecuting “summarily” by making a complaint in respect of an indictable offence which may or may not be dealt with summarily.

I therefore consider that the initiation of a prosecution for an indictable offence which may or may not be disposed of summarily, is not within the scope of the authority conferred on the Local Authority viz to prosecute summarily.

The position would clearly be different if the offence were summary only, or perhaps if it were indictable at the sole option of the Prosecutor. There, it could clearly be said that the prosecution, including the initiation thereof was a summary one so that the act of initiation, being part of the prosecution, could properly attract the adverb “summarily”.

This conclusion is perhaps supported by the rather anomalous position of the Director of Public Prosecutions in the statutory scheme, if it is interpreted in the manner contended for by the Appellants. He is not the Prosecutor and the complaint has not been made by him or on his behalf. But his consent is necessary to the summary prosecution of the alleged offence. The fact that, in practice, he has seen fit to give a blanket consent in advance, and that one must assume this to be valid since it is unchallenged, is irrelevant for the present purposes. The need for such consent, and for the acquiescence of the Defendant and an independent decision by the District Justice all demonstrate that at the time of the initiation of the prosecution the only certainty about it is that it is in respect of an indictable offence. The fact that the Legislature has decided to make most or all of the offences under the Planning Acts indictable is equally irrelevant to the construction of the phrase “prosecuted summarily”. Nor can the making of the complaint be regarded as something separate from the prosecution of it, on the authority of Ó Dálaigh C.J.

The offences alleged here are not summary offences, or offences prima facie to be dealt with summarily but which might for some reason have to be tried on indictment. They

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are indictable offences which unless certain events occur require to be tried on indictment. The initiation of a prosecution in respect of such offences is not, in my view an act of summary prosecution, and neither the intention nor the hopes of the Complainant can make it so.

I would dismiss the appeal and affirm the order of the learned trial judge.