Supreme Court allows appeal dismissing claim that proviso to s.4 Summary Jurisdiction Act 1857 violates Constitution.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

289/01

BETWEEN

BRIAN FITZGERALD

APPLICANT/RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

AND ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of the Court delivered the 25th day of July 2003, by Keane C.J.

This is an appeal from a judgment and order of the High Court (Kearns J.) which determined that the proviso to s. 4 of the Summary

Jurisdiction Act, 1857 (hereafter “the 1857 Act”) was inconsistent with the Constitution and had not remained part of the law by

virtue of Article 50 of the Constitution. The proviso in question is to the effect that, whereas a District Judge may refuse to state a

case for the opinion of the High Court on the ground that the application is “merely frivolous”, he may not do so where the application

is made on behalf of the Attorney General (or, now, the Director of Public Prosecutions, it being accepted that this is the

consequence of a process of statutory adaptation.)

The applicant had been given leave to apply by way of judicial review to the High Court for inter alia an order prohibiting the Director

of Public Prosecutions (hereafter “the D.P.P.”) from bringing an appeal by way of case stated in respect of the dismissal by the

District Court on the 12th February 1998 of a complaint that he had been driving a mechanically propelled vehicle in a public place

while under the influence of alcohol in excess of the permitted amount contrary to s. 49(3) of the Road Traffic Act, 1961. It is not in

dispute that on the 25th February 1998 an application in writing was made on behalf of the D.P.P. to the District Judge to state and

sign a case setting forth the facts and grounds of his determination for the opinion thereon of the High Court, the D.P.P. being

dissatisfied with his determination of the proceedings as being erroneous in point of law. A copy of that notice together with a copy

of the draft Case Stated which the District Judge was being invited to sign was sent to the solicitor for the applicant on that day. On

the 20th July 1998, the High Court granted leave to bring the application by way of judicial review. There was thereafter a delay,

which was unexplained, in proceeding with that application. The applicant was given leave on the 30th November 1999 to join the

District Court Rules Committee and the Minister for Justice, Equality and Law Reform as respondents and on the 13th March 2001 was

given leave to amend his original statement grounding the application for judicial review by including reliefs in the form of declarations

that inter alia s. 4 of the 1857 Act was inconsistent with the Constitution.

In proceedings of this nature, as soon as the draft case has been signed and stated by the District Judge, certain time constraints

come into operation under the relevant statutory provisions which, if not complied with, deprive the High Court of its jurisdiction to

entertain the Case Stated. There is, however, no reason to suppose that, had the present proceedings not intervened, the District

Judge would not have signed the draft Case Stated, subject to whatever amendments he considered appropriate. It must be assumed

that he would have considered himself bound by the proviso to state the case, without addressing the question as to whether he

deemed the application frivolous or not.

The sequence of events, as set out in the draft Case Stated, in the District Court was as follows. Garda Michael Hanlon, a member of

An Garda Siochana stationed at Santry Garda Station, gave evidence that on the 7th March 1997at 10.50 p.m., while on motorcycle

duty, he attended the scene of a road traffic accident at the Comet Public House on the Swords Road. When he arrived he saw two

cars which were pulled into the side of the road. A man at the scene identified himself as the owner and driver of one of the motor

cars involved in the accident. The respondent then came out of the public house and told the garda that he was the owner and driver

of the other vehicle involved in the accident. The garda said that he noticed that the respondent seemed to be unsteady on his feet,

that there was a strong smell of intoxicating liquor from his breath and that he was slurring his words. The garda asked the

respondent if he had been drinking and the respondent replied that he had consumed two pints of Guinness before the accident, that

he had gone back into the pub after the accident and that the manager had given him a large whiskey “to calm his nerves”. The

garda formed the opinion that the respondent had consumed intoxicating liquor to such an extent as to be incapable of having proper

control of a mechanically propelled vehicle in a public place and that he was thereby committing an offence contrary to the relevant

provisions of the Road Traffic Acts. He was then conveyed to Santry Garda Station where a urine sample was taken by a designated

registered medical practitioner, Dr. Fakih, the relevant statutory requirements being fully met.

A certificate was subsequently received from the Medical Bureau of Road Safety, showing a concentration of 216 mgs of alcohol per

100 mls of urine, which was completed by Dr. Fakih and the Medical Bureau and this, together with a certificate of posting, were

produced to the court. Cross-examined by counsel for the respondent, Garda Hanlon said that he had spoken with the owner of the

public house after the accident and that the latter had told him that

“he had given this whiskey to the respondent, who was in shock after the accident. The respondent’s wife had also been given

an alcoholic beverage.”

The draft Case Stated then records that counsel on behalf of the respondent sought a direction on the ground that the respondent

would not have been over the limit but for the extra drink which he had taken. The solicitor appearing for the prosecution said, in

reply, that

“The hip-flask defence had been abolished under the 1994 Road Traffic Act.”

The draft Case Stated then records that the District Judge did not accept this latter submission. It states that the District Judge was

of the view that the guard’s evidence had been “very fair” and that as he was unbiased towards the respondent “it would be wise to

rely singularly on his evidence”. It continues:

“At this stage of the proceedings I decided, on the evidence before the court, that it was quite clear that the respondent’s

high reading was due to the large whiskey which the bar manager had given to him. I was satisfied that there was no evidence

to suggest that the respondent was attempting to frustrate the prosecution. In the circumstances, I dismissed the charge

accordingly.”

The draft Case Stated concludes

“The opinion of the High Court is sought as to whether I was correct in law in dismissing the said charge against the

respondent, under s. 49(3)(6)(a) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994 on the

grounds that the prosecuting garda had given evidence that the respondent had been given a large alcoholic beverage after

the driving complained of and before the specimen was subsequently taken from him.”

In the High Court, the learned trial judge accepted the submission on behalf of the respondent that the proviso to s. 4 was

inconsistent with the Constitution, since, as it was put, it deprives the District Judge of any discretion when requested to state a

case by the Attorney General or the Director of Public Prosecutions and thus constituted an unwarranted interference with the

exercise of the judicial power of the State. He accordingly granted the declaration sought.

Following the hearing of the appeal in this court, the court re-listed the case for the purpose of hearing argument on the following

four points:-

(i) Whether a District Judge who is asked to state a case pursuant to s. 2 of the Summary Jurisdiction Act, 1857 must first

satisfy himself whether a point of law within the meaning of the section has arisen; and

(ii) If so, whether the provisions of s. 4 of the Act enabling the judge to state a case where he is of the opinion that the

application is merely frivolous come into operation only in a case where the judge is satisfied that such a point of law arises;

and

(iii) If so, whether the determination by the District Judge in the present case involved the resolution by him of a question of

fact only; and,

(iv) If so, whether the jurisdiction of the judge to state a case pursuant to s. 2 of the Act became operative at any stage of

this case.

The parties made further oral and written submissions on these questions. It was submitted on behalf of the D.P.P. that the answer

to the first question was in the negative and that, accordingly, the other answers did not arise. It was submitted on behalf of the

respondent that the District Judge was required to satisfy himself whether a point of law arose, but that, while the draft Case Stated

could be regarded as presenting a question of law, it was one which would ordinarily be regarded as “frivolous” within the meaning of

s. 4 of the 1857 Act.

Section 2 of the 1857 Act provides that

“After the hearing and determination by a justice or justices of the peace of any information or complaint which he or they

have power to determine in a summary way, by any law in force or hereafter to be made, either party to the proceeding

before the said justice or justices may, if dissatisfied with the said determination as being erroneous in point of law,

apply in writing within three days after the same to the said justice or justices setting forth the facts and grounds of such

determination, for the opinion thereon of one of the Superior Courts of law to be named by the party applying; and such

party, hereinafter called the appellant, shall, within three days after receiving such case, transmit the same to the court

named in his application, first giving notice in writing of such appeal with a copy of the case so stated and signed to the other

party in the proceeding in which the determination was given hereinafter called the respondent”. [Emphasis added]

Section 4 provides that

“If the justice or justices be of opinion that the application is merely frivolous, but not otherwise, he or they may refuse to

state a case, and shall on the request of the appellant, sign and deliver to him a certificate of such refusal: Provided that the

justice or justices shall not refuse to state a case where application for that purpose is made to them by or under the

direction of Her Majesty’s Attorney General for England or Ireland, as the case may be.” [Emphasis added]

Finally, s. 5, as adapted, provides that where the District Judge refuses to state a case, the appellant may obtain an order of

mandamus in the High Court directing him or her to state the case.

Section 51 of the Courts (Supplemental) Provisions Act, 1961 extends the jurisdiction conferred by s. 2 of the 1857 Act, but is not

material to these proceedings. Order 102 Rule 15 of the District Court Rules provides that

“Where a judge considers that an application or a request for a case stated is frivolous, he or she may refuse to state a case

and shall, on the request of the appellant or the party requesting the case stated, sign and cause to be delivered to him or

her a certificate of refusal in the form 102.6, Schedule D and cause a copy thereof to be served upon every other party to

the proceedings. A judge shall not refuse to state a case where application or request for a case stated is made by or under

the direction of the Attorney General, the Director of Public Prosecutions, a Minister of the Government or a Minister of State,

or the Revenue Commissioners.”

The statutory scheme thus established is relatively straightforward. Any party who is dissatisfied with the determination of the

District Judge as being erroneous in point of law is entitled to request the District Judge to state a case: he need not specify the

error of law into which the judge is alleged to have fallen. In turn, the District Judge is entitled to refuse to state the case if he

considers the application “merely frivolous”, but not otherwise: and, in the case of the law officers, he must accede to the request.

Since s. 2 is designed to facilitate an appeal by a person dissatisfied with the District Judge’s determination as being “erroneous in

point of law”, a District Judge might well consider a request for a Case Stated as frivolous, if there is no conceivable ground on which

his determination could be so described. Section 4 seems plainly intended to ensure that the power to appeal to the Superior Courts

on the ground that the determination was erroneous in law is not abused by litigants pursuing pointless appeals with no prospect of

success and consequences in both costs and delay. If the defendant is charged with driving in excess of the speed limit in a forty

mile area, a garda gives unchallenged evidence that an appropriate device recorded him as travelling at over 100 mph and, the

defendant gives no evidence and is convicted, a Case Stated could proceed all the way to the High Court, were it not for the

jurisdiction given by s. 4 to the judges to refuse the application as “merely frivolous”.

No doubt there are issues of fact as simple as that which can, with some semantic juggling, be converted into questions of law. There

may also be occasions, as Hardiman J points out in his judgment, when a question of law may clearly arise, but the application for a

Case Stated could still be regarded as frivolous, eg., where it has already been the subject of a Case Stated and a determination by

the High Court or this court. It is sufficient to say that, in my view, what these provisions envisage is that any party may apply to

the District Judge for a Case Stated and that, before acceding to the request, he must consider whether the request is “merely

frivolous”, save where the application is by one of the law officers. A decision that it is frivolous may be on the ground that no

question of law arose or, that if a question of law did arise, it would, depending on the circumstances, be a pointless waste of time to

grant the request for a Case Stated. I have no doubt that, in a case such as the present, if the proviso were not applicable, the

District Judge would have been entitled to accede to the application for a Case Stated, unless he was of the view that it was merely

frivolous.

I proceed, accordingly, to consider the issue raised in these proceedings as to the constitutionality of the proviso to s. 4.

Article 34.1 of the Constitution provides that

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution,

and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

The administration of justice is thus exclusively vested in the courts established under the Constitution. Article 35.1 further provides

that all judges are to be independent in the exercise of their judicial functions and subject only to the Constitution and the law.

These provisions give effect to the tripartite division of the powers of government referred to in Article 6.

Since the decision of the former Supreme Court in Buckley & Others –v- Attorney General [1950] IR 67, any provision in legislation

requiring a court to decide in a particular manner a case of which it was actually seised would, accordingly, be invalid, having regard

to the provisions of the Constitution. Moreover, since the trial of criminal offences is exclusively the function of the courts established

pursuant to Article 34, it is those courts alone which can determine whether the essential ingredients of any offence with which a

person has been charged have been proved and legislation providing that, in particular criminal proceedings, a certificate was to be

“conclusive evidence” of certain matters has also been held by this court to be invalid: see Maher –v- Attorney General [1973] IR

140. It was submitted on behalf of the respondent that this legislation, in assigning to a person other than a judge, i.e., the D.P.P.,

the decision as to whether there should be an appeal by way of case stated in a particular case, also violated those principles and, in

support of that proposition, the decision of this court in The State (McEldowney) –v- Kelliher [1983] IR 289 was cited. As already

noted, that submission was accepted by the learned trial judge in the High Court.

The State (McEldowney) –v- Kelliher arose out of the provisions of s. 13 of the Street and House to House Collections Act, 1962.

Under that Act, the collection of money from the public in public places or by means of house to house visits was illegal, unless done

in accordance with a permit granted by the Chief Superintendent of the Garda Siochana for the locality in which the collection was

being held. Section 9 of the Act provided that the Chief Superintendent was not to grant such a permit for a collection where he was

of the opinion, inter alia, that the proceeds would be for the benefit of an unlawful object or an organisation membership of which

was unlawful. Section 13 made provision for an appeal to the District Court in the event of a refusal of the application and provided

that if the court was satisfied, having regard to all the circumstances of the case, that the application should not have been refused,

it could direct the Chief Superintendent to grant the permit. However, s. 13(4) also provided that

“Without prejudice to the jurisdiction of the District Court to disallow on other grounds an appeal under this section, an appeal

under this section shall be disallowed, if, on the hearing thereof, a member of the Garda Siochana not below the rank of

inspector states on oath that he has reasonable grounds for believing that the proceeds or any portion of the proceeds of the

collection to which the collection permit the subject of such appeal relates would be used –

(a) for the benefit …. of an organisation membership of which is unlawful….”

In the High Court, a challenge to the validity of this provision on the ground that it was an unlawful interference by the Oireachtas in

the administration of justice failed. This court, however, on appeal, concluded that s. 13(4) was invalid having regard to the

provisions of Articles 6, 34 and 35 of the Constitution.

Delivering the decision of the court, Walsh J. observed that, by expressly granting a right of appeal to the District Court against the

refusal by the Chief Superintendent of an application for a collection permit, the Oireachtas had conferred on the District Court the

power to decide a specific issue in accordance with the law, i.e., whether or not the application should have been refused. The

learned judge noted that, if the Oireachtas had in express terms excluded from the appellate jurisdiction of the District Court

applications which had been refused on the ground that the Chief Superintendent was of the opinion inter alia that the collection

would be for the benefit of an unlawful object or an unlawful organisation, that would have been the end of the matter, provided the

Chief Superintendent had acted fairly and in accordance with constitutional propriety. He went on:

“However, s.s. 4 of s. 13 purports to require a District Justice to disallow an appeal once the statement on oath described

therein has been made to him, irrespective of whether he believes it or not and irrespective of whether or not, even in a case

where he has heard the evidence, he has arrived at an opinion contrary to that of the Chief Superintendent…”

Having referred to Buckley & Others –v- The Attorney General, Maher –v- The Attorney General and The State (C) –v- The Minister

for Justice [1967] IR 106, the learned judge went on:

“In the opinion of the court, the present case falls squarely within the principles enunciated in those decisions. The statute

creates a justiciable controversy and then purports to compel the court to decide it in a particular way upon a particular

statement of opinion being given upon oath as to whether or not a statutory reason for refusing the permit exists, whatever

the opinion the court may have formed on the issue in question or might have formed if it had heard any evidence upon it.”

The provision in question was, accordingly, declared by the court to be invalid having regard to the provisions of the Constitution.

I am satisfied that s. 4 of the 1857 Act does not require the resolution by a court of a justiciable controversy between parties. It

does no more than empower a District Judge to decline to allow an appeal to proceed by way of case stated, where he is of the view

that the request is frivolous. It cannot be equated to the justiciable controversy which was the subject of The State (McEldowney) –

v- Kelliher, i.e., as to whether the refusal by the Chief Superintendent to grant the collection permit on the ground in question should

be upheld or set aside by the District Court.

The justiciable controversy assigned to the District Court in this case was the criminal issue as to whether the respondent was guilty

of an offence under the relevant legislation. The proviso to s. 4 of the 1857 Act, which is challenged in these proceedings, does not

require that issue to be determined in any particular manner nor does it interfere in any way with the determination by the courts

established under the Constitution of his guilt or innocence in accordance with law. It does no more than enable the law officers to

obtain a ruling from a Superior Court as to the correctness of the District Judge’s determination where they are dissatisfied with that

determination as being erroneous in point of law. It is entirely distinguishable from the provision which was found to be invalid in

McEldowney, where the legislation assigned a particular issue for determination to the District Court and then, in effect, directed the

court to decide the issue in a particular manner where evidence of a specific nature was given.

Nor is the procedure under the proviso to s. 57 in any way comparable to that permitted by s. 13 of the Lunatic Asylums (Ireland)

Act, 1875, which was considered in The State (C) –v- The Minister for Justice and which entitled the executive to remove a person

who was awaiting trial to a district lunatic asylum and confine him there until such time (if any) when he was certified to be sane.

That provision had the effect, at the behest of the executive, of postponing indefinitely a criminal trial of which the District Court was

already seised and effectively depriving the court of its jurisdiction to determine whether the accused was suffering from insanity of

such a character as to render him unfit to stand his trial. It is hardly surprising that Ó Dálaigh C.J. characterised this as

“About as large an intrusion upon a court proceeding as one could imagine.”

In the present case, the requirement that the District Judge should state a case for the opinion of the Superior Courts where he is

requested so to do by the law officers does not interfere in any way with the exercise by the courts of their jurisdiction to determine

the guilt or innocence of the accused person. On the contrary, it enlarges the jurisdiction of the courts in dealing with such cases by

facilitating the setting aside by the Superior Courts of a determination which is erroneous in point of law. In my view, it was perfectly

legitimate for the legislature to proceed on the basis that the law officers, as persons charged with serious constitutional

responsibilities, would not have the same motives for prosecuting specious and time wasting appeals as others.

Since the legislation unarguably permits an appeal by way of case stated from an acquittal, it may be said, to a limited extent, to

derogate from the rule against double jeopardy. It was not, however, suggested in the course of argument that the proviso was also

constitutionally invalid on that ground and, in my view, correctly. The legislature were entitled to proceed on the basis that the

Superior Courts should be in a position to remedy an injustice which has occurred in criminal proceedings as a result of an error in law,

whether it has led to a conviction or an acquittal, although in accordance with the values on which our system of law rests, the

acquittal of the guilty is not of the same order of injustice as the conviction of the innocent.

I would accordingly, allow the appeal and substitute for the order of the High Court an order dismissing the applicant’s claim.