High Court quashes Circuit Court decision regarding invalid delegation of powers under Garda Síochána Act 2005 s. 102.

Neutral Citation: [2014] IEHC 339

THE HIGH COURT

[2013 No. 269 J.R.]

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

HIS HONOUR JUDGE TERENCE O’SULLIVAN

RESPONDENT

AND

KEVIN KEYS

NOTICE PARTY

JUDGMENT of Mr. Justice Hogan delivered on 2nd July, 2014

1. The standard time limit in respect of an applications for a summons in the District Court remains that specified by s. 10(4) of the

Petty Sessions (Ireland) Act 1851, namely, six months. There are, however, many statutory provisions which provide for a different

and extended time period and s. 104 of the Garda Síochána Act 2005 (“the 2005 Act”) is one such provision. This provides for twelve

month time period where the complaint has been the subject of an investigation by the Garda Siochána Ombudsman Commission

following a referral of the matter in that behalf under s. 102 of that Act. In the present case, the application for a summons was

made outside the six months time limit, but within the twelve month period specified in s. 104 of the 2005 Act. As we shall now see,

the essential question is whether there was a valid reference to GSOC under s. 102 of the 2005 Act. This issue arises in the following

fashion.

The background to the present proceedings

2. The notice party, Garda Kevin Keys, is a member of An Garda Síochána who was involved in a traffic accident on 6th February,

2010. The Garda car which he had been driving collided with the motor vehicle of a member of the public and the other driver suffered

injury as a result.

3. The collision was then investigated by members of An Garda Siochána led by Sergeant Pat Slattery. The matter was then referred

to the Garda Síochána Ombudsman Commission (“GSOC”) by Superintendent Bart Faulkner under s. 102 of the 2005 Act following a

report in that regard from Sergeant Slattery. On that evening the Deputy Director of Investigations at GSOC, Mr. Ray Leonard, made

a direction under s. 91(2)(b) of the 2005 Act that an investigation into the conduct of Garda Keys be carried out pursuant to s. 98 of

the 2005 Act.

4. The GSOC investigation was completed in December 2010. A report was forwarded to the Director of Public Prosecutions

recommending that the notice party be prosecuted in respect of a variety of road traffic offences. An application was then made to

the District Court on 4th February, 2011, by a solicitor acting for the Director for summonses alleging two offences against the notice

party, namely, dangerous driving (contrary to s. 53 of the Road Traffic Act 1961) and the use of a motor vehicle without lawful

authority (contrary to s. 112 of the Road Traffic Act 1961). It may be noted that while the application for the summons was outside

of the 6 months specified by s. 10(4) of the 1851 Act, it was just within the 12 month period specified by s. 104 of the 2005 Act. As

we shall presently see, at the heart of the present case is the question of whether the prosecution can avail of the extended time

limit contained in s. 104. If the prosecution cannot properly bring themselves within this extended time limit then it must be accepted

that this particular summary prosecution is time-barred and the notice party would be entitled to have the charges against him struck

out on this ground.

5. The prosecution having been adjourned from to time, jurisdiction was accepted by the District Court on 5th September, 2011. The

trial of these offences took place before the District Court on 14th March, 2012, as a result of which the accused was acquitted by

Judge Conal Gibbons on the s.112 (driving without lawful authority) charge.

6. In relation to the remaining charge of dangerous driving, it was argued on behalf of the notice party that this complaint was time

barred by virtue of s. 10(4) of the Petty Sessions (Ireland) Act 1851 in the absence of satisfactory evidence that the case had been

validly referred to GSOC by Superintendent Faulkner under s.102 of the 2005 Act. This argument was, however, rejected by Judge

Gibbons and the noticed party was convicted of the dangerous driving charge. He was fined €500 and a disqualification from driving

for two years was imposed. The notice party then appealed to the Circuit Court.

7. Before the Circuit Court the critical issue was whether there had been a timely application for a summons in the District Court in

respect of this charge in view of the provisions of s. 10(4) of the 1851 Act and s. 104 of the 2005 Act. On the first day of the appeal

His Honour Judge O’Sullivan ruled that the time question should be heard and determined as a preliminary issue. In essence the

question was whether the procedures specified in the 2005 Act had been complied with, so that the extended twelve month time

period contained in s. 104 of the 2005 Act might accordingly be availed of by the Director

8. On 12th February, 2013, Judge O’Sullivan ruled that although the summons had been applied for within 12 months, the manner in

which the matter had been reported to the DPP was not in accordance with the 2005 Act. It followed that the 12 month time limit

provided for by the 2005 Act did not apply and the application for the summons in respect of the dangerous driving charge was time

barred.

9. In these judicial review proceedings the Director contends that Judge O’Sullivan erred in law in arriving at this conclusion and, as

that this error is jurisdictional in nature, she maintains that this decision should accordingly be quashed.

The implications of the 2005 Act

10. As we have just noted, the question in essence before Judge O’Sullivan was whether at the time the reference to GSOC a lawful

delegation had been made by the then Commissioner of his functions to the Superintendent who made the reference under s. 31 of

the 2005 Act. In order to understand how this issue is of such significance it is necessary for this purpose first to set out the relevant

provisions of s. 31 and s. 102 of the 2005 Act

11. Section 31 of the 2005 Act provides:

“(1) Subject to the regulations, the Garda Commissioner may, in writing, delegate any of his or her functions under this

Act to—

(a) members of the Garda Síochána specified by rank or name, or

(b) members of the Garda Síochána's civilian staff specified by grade, position, name or otherwise.

(2) A delegation under this section may—

(a) relate to the performance of a function either generally or in a particular case or class of case or in respect of a

particular matter,

(b) be made subject to conditions or restrictions, and

(c) be revoked or varied by the Garda Commissioner at any time.

(3) The delegation of a function does not preclude the Garda Commissioner from performing the function.

(4) Where the Garda Commissioner's functions under a provision of this Act are delegated to a person, any references in

that provision to the Commissioner are to be read as references to that person.

(5) An act or thing done by a person pursuant to a delegation under this section has the same force and effect as if done

by the Garda Commissioner.”

12. Section 102(1) in turn provides:

“The Garda Commissioner shall refer to the Ombudsman Commission any matter that appears to the Garda Commissioner to

indicate that the conduct of a member of the Garda Síochána may have resulted in the death of, or serious harm to, a

person.”

13. Section 91 of the 2005 Act then provides for the investigation of referrals made under s.102, so that the complaint is examined

and is made the subject of an appropriate report. When the report is complete, s. 101 provides that the investigation officer must

report in writing to GSOC. If GSOC concludes that the report discloses that the conduct under investigation discloses an offence, it

shall send the file and investigation report to the DPP: see s. 101(2)(a). Critically, however, s. 104 of the 2005 Act provides for the

extended time limit in such circumstances:

“Notwithstanding s. 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings in respect of a matter relating

to an offence reported to the Director of Public Prosecutions under this Act may be instituted within 12 months from the

date of this offence.”

The evidence before the Circuit Court

14. Given the centrality of the time issue, the prosecution then led evidence to demonstrate that a timely complaint had been made.

Superintendent Bart Faulkner (who by this stage had retired) gave evidence that on 2nd February, 2010, he had received a telephone

call from Sergeant Slattery and that following that conversation he made reference to GSOC under s. 102 of the 2005 Act.

15. The issue as to whether that was a valid reference then in turn depended on whether there had been a valid delegation by the

Garda Commissioner of his power under that section. Superintendent Faulkner stated that he was aware that a directive had

emanated from Garda Headquarters had provided for such a delegation and a copy of that particular directive (known as Directive

10/10 and which was dated 25th January, 2010) was then formally proved. This Directive provided in relevant part that:

“The Garda Commissioner has delegated his function under s. 102(1) of the [2005] Act to members of Superintendent

rank.”

16. Among the other witnesses who gave evidence for the prosecution was the then Garda Commissioner, Fachtna Murphy.

Commissioner Murphy gave evidence that he had approved the issue of Directive 10/10 and provided for the delegation of these

powers to Superintendents. It is also at least necessarily implicit in this evidence that there had been no revocation or variation of

the delegation order under s. 31(2)(c) of the 2005 Act.

The ruling of Judge O’Sullivan

17. In his ruling, however, His Honour Judge O’Sullivan found that he could not accept that there had been a valid delegation of the

Garda Commissioner’s powers under s. 102 of the 2005 Act:

“What is difficult about the document is it says that the Garda Commissioner had delegated his function. It uses, in other

words, the past tense and it refrains from using any words which certainly what I can find would suggest that the

delegation is continuing. The obvious problem then is what evidence do I have that the delegation in the past was in

writing. The answer I am afraid is none. The document…does not say, for example, that the Garda Commissioner has

previously delegated in writing and go on to deal with it in that way, it simply makes a bald statement that in the past he

has delegated his function. I cannot infer from that although I am…on the balance of probabilities…I am sure he did so but

I cannot infer from that automatically that the Garda Commissioner did in fact following the statutory form of delegating in

writing his functions to the various Superintendents around the country under s. 102.”

18. Judge O’Sullivan then went on to deal with the consequence of his finding:-

“Now the consequence of that is that absence of delegation in writing there is no evidence that the Superintendent in

Crumlin had any right to refer the matter to GSOC…the consequence of this must be that the investigation which was

carried out by GSOC which resulted in the matter being referred to the DPP was not carried out under the Act and once it

was not carried out under the Act, I am of the view that the extension period under s. 104 cannot avail the Director.”

19. While I agree that almost everything turns so far as these proceedings were concerned on whether the Commissioner’s powers

had been lawfully delegated under s. 102 of the 2005 Act to Superintendent Faulkner, I fear that I cannot agree with Judge

O’Sullivan’s characterisation of Directive 10/10. It is true that the past tense is used, but it is used in a sense which nonetheless

implies continuity and which would be understood as such by all concerned. If, for example, it is announced that the Government “has

appointed” X to be Governor of the Central Bank or “has nominated” Y to be a judge of the Supreme Court, this does not mean – and

would not be understood as meaning – that whereas such a person had been appointed to the position at some stage in the past,

their appointment was no longer valid or effective.

20. While it is true that the question of whether the delegation order was effective to ensure that the Superintendent had been

lawfully authorised to exercise the s. 102 functions is question of fact, to be determined objectively on the available evidence, it is

nonetheless also material that the then Commissioner gave evidence before the Circuit Court to the effect that he considered that

this had been the effect of Directive 10/10, namely, that there had been a delegation of functions to Superintendents and that this

delegation was a continuing one which had not been revoked. One might also add that the absence of any evidence that the

delegation order had been varied or revoked in the manner envisaged by s. 31(2)(c) of the 2005 Act was also surely material in any

evaluation of this question of the effectiveness or continued operation of the delegation order.

21. In this respect, the present case can be contrasted with the decision of the Court of Criminal Appeal in The People (Director of

Public Prosecutions) v. Farrell [1978] I.R.13. In that case it was contended that the accused had made an incriminating statement

while in custody following an arrest under s. 30 of the Offences against the State 1939 (“the 1939 Act”). The statement in question

was made during the second 24 hour period of detention, so that everything turned on whether the statement was made while the

accused was in lawful custody. Section 30(3) of the 1939 Act required that extended detention to be authorised by a Chief

Superintendent, but s. 3 of the 1939 Act also permitted such detention to be authorised by a Superintendent, provided that he in

turn was authorised by the Garda Commissioner for this purpose.

22. The evidence established that the extension order was made by a Superintendent who simply completed a pre-prepared form

which recited that he had been authorised by the Garda Commission under s. 3 of the 1939 Act to extend the time for the detention

of the suspect. The Court of Criminal Appeal held that the extension order was invalid. As O’Higgins C.J. explained ([1978] I.R. 13, 25-

26):

“The Act of 1939 must be strictly construed. It is legislation of a penal kind which was passed for a special purpose and

which has the effect of interfering with the normal rights and liberties of citizens…The period of detention authorised by s.

30 of the 1939 Act is for an initial period of 24 hours. It must then end unless it is continued. If it is to be continued, the

machinery laid down by the Act must be shown to have been used. Because rights and liberties are involved, no

presumptions can be made. In this case there was no evidence that the Garda Commissioner had authorised

Superintendent Murray either verbally or in writing to extend the time. The recital on the form was no evidence of such

fact. This recital had no evidential value whatsoever. Evidence could have been supplied either by the product of written

authorisation or, possibly, by the evidence of the fact that such authorisation had been given. No such evidence was

given.”

23. By contrast, the present case does not directly concern the validity of a suspect’s detention, but merely a procedural feature –

albeit a very important one – which, so far as the present case is concerned, happens to be incidental to a prosecution. It is

nevertheless clear that, unlike the situation in Farrell, positive evidence of a statutory delegation of power by the Garda Commissioner

was formally given before the Circuit Court in the present case.

24. For all of these reasons, therefore, I am of the view that Judge O’Sullivan fell into error in arriving at the conclusion that the

delegation order was no longer operative or effective in law. The question which next arises is whether that error was jurisdictional in

nature so that it is capable of being quashed in judicial review proceedings.

Whether this error is amenable to judicial review

25. Counsel for the notice party, Mr. McGuinness S.C., argued powerfully that the traditional distinction between errors going to

jurisdiction and those which did not remains a vibrant one, even if some of the traditional foundations of that distinction had been

eroded by cases such as The State (Holland) v. Kennedy [1977] I.R. 193 and Killeen v. Director of Public Prosecutions [1997] 3 I.R.

218.

26. It is probably unnecessary to explore this wider question, because whatever else was decided by the Supreme Court in either

Holland or Killeen, it is clear from those decisions that errors affecting jurisdiction can be quashed in judicial review proceedings. This

point was made very clearly by Henchy J. in Holland, a case where the imprisonment of a young person was quashed in the absence

of satisfactory evidence that he was of an “unruly character” as would necessitate a sentence of imprisonment. The latter

requirement was central to the very jurisdiction of the Court. As Henchy J. explained ([1977] I.R. 193, 201-202):

“The statute conferred jurisdiction to impose a sentence of imprisonment only when the court certifies that the young

person is of so unruly a character that he cannot be detained in the provided place of detention. It was necessarily the

statutory intention that a legally supportable certificate to that effect is to be a condition precedent to the exercise of

the jurisdiction to impose a sentence of imprisonment. Otherwise the sentencing limitation imposed by the statute could

be nullified by disregarding what the law regards as essential for the making of the certificate. In the present case the

certificate, having been made without evidence, is as devoid of legal validity as if it had been made in disregard of

uncontroverted evidence that the young person is not what he has been certified to be. Therefore, the consequent

sentence of imprisonment was imposed without jurisdiction and the order embodying it was correctly quashed in the High

Court.”

27. The decision of Keane J. in Killeen is to similar effect. In that case the District Court had concluded that it was precluded from

sending the accused forward because of an underlying defect in the warrant. The Supreme Court held that this was erroneous in

point of law, since the only true question relevant to his jurisdiction was whether there was sufficient evidence to justify put the

applicant on trial in the Circuit Court. Keane J. further held that as this was tantamount to refusing jurisdiction, the order to this

effect could accordingly be quashed by way of certiorari.

28. There is absolutely no question but that the issue of whether there had been a valid delegation of powers under s. 102 of the

2005 Act was (correctly) treated as a jurisdictional issue, both by Judge O’Sullivan and by the parties alike. By analogy with the

comments of Henchy J. in Holland, one may equally say that it was necessarily the statutory intention that the validity of the initial

reference to GSOC by Superintendent Faulkner under s. 102 of the 2005 Act should rest on whether there had been a valid delegation

in the first place of these powers by the (then) Commissioner Murphy.

29. In his decision, Judge O’Sullivan treated that delegation order as being no longer effective or operative. In the circumstances, this

finding was tantamount to holding that the reference to GSOC by Superintendent Faulkner was invalid. These conclusions are,

however, plainly jurisdictional in nature as they necessarily impinge on the proper and effective operation of key provisions of the

2005 Act. In these circumstances, the determination of the Circuit Court regarding the effectiveness of the delegation order

contained in Directive 10/10 was plainly in respect of a jurisdictional issue in the manner in which this concept was understood by the

Supreme Court in its decisions in both Holland and Killeen. It follows, therefore, that the decision of Judge O’Sullivan is amenable to

being quashed in judicial review proceedings.

Conclusions

30. For the reasons stated, therefore, I would accordingly quash the decision of Judge O’Sullivan insofar as he held that the powers

of the Commissioner under s. 102 of the 2005 Act had not been validly delegated to Superintendent Faulkner. I propose to discuss

with counsel the precise relief which should now be granted to the applicant in the light of this conclusion.