THE COURT OF APPEAL
High Court Record No.: 2023/1649 SS
Court of Appeal Record No.: 2024/252
Neutral Citation: [2025] IECA 133
Edwards J.
Kennedy J.
Butler J.
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
APPEAL BY WAY OF CASE STATED
BETWEEN/
NATIONAL TRANSPORT AUTHORITY
APPELLANT
- AND -
CHRISTOPHER ANDERSON
RESPONDENT
JUDGMENT of the Court delivered by Ms. Justice Nuala Butler on the 20th day of June 2025
1. This is an appeal from a decision of the High Court on an appeal by way of case stated from the District Court under s.2 of the Summary Jurisdiction Act, 1857 as amended. The case before the District Court concerned the prosecution of the respondent by the appellant for offences under the Taxi Regulation Acts 2013-2016, namely that the respondent had purported to offer a taxi service when neither he nor the vehicle he was driving were licensed as required under the 2013 Act.
2. Following legal argument at the close of the prosecution case, the District judge dismissed the charges on the basis that the main witness for the prosecution, an authorised person under the 2013 Act, was not empowered under s.40(3) of that Act "to engage in activities targeting unlicensed operators". The sole question in the case stated is whether, on the facts as found, the District judge was correct in law in dismissing the case.
3. The central argument made by the respondent before the District Court was that the powers of an authorised person appointed under s.40(1) of the 2013 Act are limited to those set out in s.40(3) which, in turn, are confined to the investigation of breaches of the Act or related codes by licensed persons. As the respondent did not hold a licence, in investigating his activities the authorised person was investigating an unlicensed situation which fell outside the scope of his functions under the Act and is thus ultra vires. The District judge accepted that an authorised person had functions under other sections of the 2013 Act in addition to section 40. He did not appear to accept that an authorised person could do things without an express statutory power even when these were things that an ordinary person could do. In the course of argument before this court, the respondent accepted this proposition which was contrary to the argument successfully made before the District Court. However, the respondent contended, by reference to the High Court judgment, that the things done by the authorised person in this case were not things that any member of the public could do.
4. The issue before this court remains that posed by the District judge in the case stated - namely whether he was correct in law in dismissing the case. The High Court judge held that he was, largely for the same reason as the District judge, i.e. that having regard to the wording of s.40(3), an authorised person was not empowered to engage in activities targeting unlicensed operators. She held, very clearly, that the functions an authorised person may carry out are limited to those identified in the Act and there is no statutory provision for functions which are not statutorily conferred (Hyland J. [2024] IEHC 741).
5. As may be appreciated from this brief outline, the argument successfully made by the respondent before the District Court and the High Court is not the same as the argument now made. The case now made is that although an authorised person may be entitled to carry out some of the actions which were carried out in relation to the respondent without an express statutory basis, the authorised person acted unlawfully in doing so by presenting or portraying himself as having statutory authority which he did not have. This change of approach raises issues in the very specific context of a case stated under s.2 of the 1857 Act particularly as the respondent was acquitted by the District Court. The case stated must be dealt with on the basis of the facts as found by the District Court and any inferences that can be reasonably be drawn from those facts. The difficulty for this court is that the actual factual findings made by the District Court are limited, presumably because the District judge took a very decided view of the law to which the detail of much of the factual exchanges between the appellant and the respondent was not especially relevant.
6. For the purpose of examining the issues now raised on this appeal we propose to look firstly at the statutory regime for the licensing of taxis under which the criminal prosecution was brought; then at the evidence presented in the District Court and the findings of fact made by the District judge on the basis of that evidence; then at the jurisdiction of the High Court under s.2 of the 1857 Act; then at the High Court decision and finally at the issues raised in the Notice of Appeal. The arguments of the parties will be addressed as they are relevant to those issues.
The Taxi Regulation Act 2013
7. The Taxi Regulation Act 2013 as amended by the Public Transport Act 2016 provides a statutory scheme for the regulation of taxis which, under the Act, are called small public service vehicles ("SPSV") but for ease of reference we will use the term "taxi". The appellant, the National Transport Authority, is appointed as the licensing authority under s.6 of the 2013 Act. The basic regulatory scheme requires both the vehicles to be used as taxis and the drivers of those vehicles to be licensed. Operating a taxi without a licence or operating a taxi service with a non-licensed vehicle is a criminal offence.
8. Under s.9 of the 2013 Act the appellant has the power to grant and renew licences and to attach such conditions to a licence as it sees fit. The appellant maintains a register of licences under section 18. It is a term of any licence granted that the holder must comply with regulations made under the Act applicable to the licence. Under section 12 the appellant may revoke or suspend a licence. These latter provisions are not directly relevant to this case as the offences with which the respondent was charged arose because it was alleged he was operating a taxi service without a licence. Nonetheless it is useful to note that enforcement under the Act is a broad concept which is not purely based on the distinction between licensed and unlicensed operators. There are a range of matters which may be enforced as against licensed operators.
9. The functions of the appellant under the 2013 Act are set out in section 19 with the overarching obligation in subsection (1) of developing, operating and maintaining a regulatory framework and regulating standards for the licensing of taxis and their drivers. Detailed objectives are set out in s.19(2) which include at (e) achieving the provision of quality services by taxis and their drivers whilst having "due regard to the protection of service users and providers alike". Clearly, the enforcement of a licensing regime under which vehicles must meet certain standards and drivers are required to be "suitable persons" (under s.10) is an important element of ensuring protection of service users.
Further, under section 19(4) the exercise of the functions of the Authority under the 2013 Act (subject to certain exceptions which are not relevant for present purposes) may be carried out through, inter alia, a member of staff of the Authority "authorised on that behalf".
10. The criminal offences central to the regulatory scheme are created under section 22. This section makes it an offence to provide taxi services without holding the requisite licences. The offences with which the respondent was charged arose under s. 22(2) which, in so far as relevant, provides as follows:
"(2) A person shall not drive or use a mechanically propelled vehicle to which this section applies in a public place for the carriage of persons for hire or reward unless—
(a) the vehicle is—
(i) a small public service vehicle licensed under licensing regulations, and ...
(b) the person holds a licence to drive a small public service vehicle of the category that he or she is driving or using."
Under s.22(4) the contravention, inter alia, of s.22(2) is a criminal offence to which the person committing the offence is liable to a fine on summary conviction.
11. Enforcement is provided for under Part VI of the 2013 Act. As the meaning and effect of s.40 was central to the reasoning of both the District Court and the High Court subsections (1) - (3) will be set out in full:
"40(1) The Authority may appoint in writing such and so many persons or classes of persons (including persons who are employees of a person who has entered into a service agreement) as it may determine to perform any or all of the functions conferred on an authorised person under this section as may be specified in the appointment.
(2) A person appointed as an authorised person under subsection (1) shall, on his or her appointment, be furnished by the Authority with a warrant of his or her appointment and when exercising a power conferred on an authorised person under this Part shall, if requested by any person affected, produce the warrant to that person for inspection.
(3) For the purposes of ensuring that the holders of licences are each complying with this Act, or a code of practice or the requirement that small public service vehicles or vehicles being used or intended to be used for hire or reward are in a roadworthy condition, an authorised person may—
(a) subject to subsection (6), at any reasonable time, if necessary by use of reasonable force, enter the premises or place where an activity connected with or ancillary to the provision of services relating to small public service vehicles takes place or small public service vehicles are kept or located, and search the premises or place and inspect and examine any vehicle found there and inspect any licences, records or documents found there,
(b) if he or she is a member of the Garda Síochána or is accompanied by a member of the Garda Síochána—
(i) stop a small public service vehicle or vehicle purporting to be such a vehicle, or
(ii) having stopped such vehicle, require it to be moved to a nearby location for the purpose of being searched, inspected and examined, and there to so search, inspect and examine any licence or documents in the vehicle,
(c) search, inspect and examine a small public service vehicle or vehicle purporting to be such,
(d) carry out any tests upon a vehicle, or require that the vehicle be brought to a specified place at a specified time, for tests to be carried out on it,
(e) where a small public service vehicle, or a vehicle which the authorised person suspects is being used as such, is stopped or parked in a public place, search, inspect and examine the vehicle and examine any licence or other documents found in it or request from the person in charge of the vehicle production of such,
(f) secure for future inspection any premises or place where he or she believes on reasonable grounds small public service vehicles are kept or located or any premises, place or vehicles in which he or she believes on reasonable grounds licences, records or documents relating to the provision of small public service vehicle services are kept,
(g) require a person in charge of the premises, place or a vehicle on the premises, or the driver of the vehicle, to produce to him or her any licence, record or documents (and in the case of such record or document stored in non-legible form, produce to him or her a copy in legible form) relating to the provision of such services which are in the person's power and control and to give the authorised person such information as he or she may reasonably require for the purpose of enforcing this Act,
(h) inspect and take extracts from or make copies of such licences, records or documents (including in the case of information in a non-legible form, an extract from or copy of such information in permanent legible form),
(i) remove and retain such licences, records or documents for a reasonable period for future inspection,
(j) take photographs or make any record or visual recording of any activity on the premises or place or of the vehicle,
(k) require the holder of a licence in respect of a small public service vehicle, or other person he or she believes to be in charge of the vehicle, to bring the vehicle to a specified location at a specified time for examination and testing,
(l) require the name and address and date of birth of the person in charge of the vehicle or who is found on the premises or at the place."
12. The appellant's position is that the powers conferred on an authorised person under s.40(3) although detailed, are not exhaustive. Instead, the subsection confers on an authorised person the power to do things which otherwise could not be lawfully done - such as the entry onto premises; the search, inspection and examination of vehicles and the seizure of licences, records and documents. The appellant argues that an authorised person does not need a statutory power to do something which any member of the public can lawfully do. Crucially in this case that includes booking and taking a taxi ride.
13. The argument accepted by the District Court was that s.40(3) was an exhaustive list of the powers of an authorised person save where other statutory powers were expressly conferred elsewhere in the 2013 Act. Further, as powers under s.40(3) may only be exercised for the purpose of "ensuring that the holders of licences" are complying with the Act and related codes and regulations, those powers could not be used at all in respect of unlicensed operators such as the respondent.
14. The appellant argues that the coercive nature of the powers conferred by s.40(3) is evident from the provisions of s.43. The side note to this provision reads "prohibition on obstruction of authorised officer" and subsection (1) provides:-
"43(1) A person who—
(a) obstructs or impedes an authorised person exercising a function of an authorised person under this Part,
(b) fails to comply with a requirement of an authorised person under this Part, or
(c) gives information to an authorised person which he or she knows to be false or misleading,
commits an offence and is liable on summary conviction to a class A fine."
Thus, the appellant argues that an authorised person is given powers under s.40(3), the exercise of which may interfere with an affected person's rights, including property rights and rights to privacy. Obstruction of or non-cooperation with an authorised person in the exercise of those powers is itself a criminal offence. The appellant then argued that the key difference between an authorised person acting as such but not purporting to exercise a statutory power under s.40(3) or otherwise and an authorised person specifically exercising one or more of these powers lies in the legal consequences for the person under investigation. This, as we shall see, was central to the reasoning of MacGrath J. in HPRA v. Rossi [2019] IEHC 723.
15. The District judge accepted that notwithstanding the wording of s.40(1) which suggests that an authorised person's appointment is solely for the purpose of exercising functions under s.40 itself, they may also lawfully exercise powers which are conferred on them elsewhere in the 2013 Act. The example given to the court and cited in the High Court judgment was s.27(3) under which an authorised person may enter a premises (other than a private dwelling) or place where he or she has reasonable grounds for believing a person is promoting, offering or advertising unlicensed taxi services and inspect the premises and request information. Under s.27(4) the authorised person may seize and retain printed material in relation to such services and may request that the activity cease. Obstruction of an authorised person exercising powers under 27(4) or non-compliance with the request to cease the activity is a criminal offence under s.27(8).
16. Although not the subject of detailed argument, authorised persons also have statutory functions to prohibit the use of unlicensed or defective vehicles and to seize signage, identification and even the vehicle itself (s.41); to apply for a search warrant (s.42); to issue a fixed penalty notice (s.48); and in respect of the operation of community transport services (s.60). This is not necessarily an exhaustive list but serves to illustrate the point that although appointed under s.40(1) and entitled to exercise the powers conferred under that section, authorised persons also have functions conferred on them by other sections and under different parts of the 2013 Act.
Evidence before the District Court - Facts as Found
17. The material before the High Court included both the case stated by the District judge and a full transcript of the hearing before him. It is evident from the transcript that the District judge's views crystallised as the hearing evolved and, in circumstances where his ruling is fairly brief, some of his rationale is evident from his exchanges with the parties' solicitors. The evidence which was before the court is set out in the case stated as is the judge's ruling, the latter being somewhat expanded upon but not changed in any material respect.
18. Briefly, the charges before the court arose out of events which occurred on 20th August 2022 in New Ross, County Wexford. The principal witness for the Authority was a Mr. Carey who was employed in its compliance section and had been appointed an authorised person under s.40(1). He had received information that the respondent was operating an unlicensed taxi service and organised with An Garda Síochána to conduct a joint operation. This involved Mr. Carey booking a taxi ride with the respondent using a phone number provided to him and the members of An Garda Síochána being present at what was the prearranged destination of the taxi journey at a local hotel. This operation was described as a "covert test purchase". Mr. Carey proceeded to book the ride, the respondent arrived to collect him in a white Mondeo, confirmed that he was the "cab" that had been booked and drove Mr. Carey to the destination where Mr. Carey paid for the ride and received change.
19. At this point Mr. Carey identified himself and produced his warrant of appointment. He was joined by arrangement by the two members of An Garda Síochána. He then "secured for evidence purposes" the €20 he had paid to the respondent and returned the change he had been given. As it happens, in giving evidence Mr. Carey did not actually introduce the €20 into evidence. Mr. Carey noted that the vehicle did not display either the driver identification or the tamper proof discs that a licensed operator is obliged to display. Mr. Carey cautioned the respondent and asked some questions in response to which the respondent provided his name, date of birth and address. The respondent explained why he was operating a taxi service without a licence (i.e., the lack of such service in New Ross). He then was requested to and did sign the notes Mr. Carey had made. Technical issues, which are not relevant to the issues on this appeal, such as the respondent's ownership of the vehicle and the fact it was not licensed were duly proved.
20. The case stated notes that under cross-examination Mr. Carey was asked if he was exercising powers under s.40 when he was engaging with the respondent to which Mr. Carey replied that he was "there to ensure compliance" with the 2013 Act. It was put to him that the carrying out of a test purchase or "setting a trap" was not permitted under s.40. Mr. Carey did not initially address the extent to which a covert test purchase was permitted under s.40 as he took issue with the description of the covert test purchase as "a trap" and said that he regarded it as the only way that non-compliance could be established. He accepted that the legislation did not specifically set out "test purchase". On re-examination Mr. Carey confirmed that he did not invoke any powers in his encounter with the respondent.
21. The case stated then proceeds to set out the legal arguments made without making formal findings on the factual elements of the evidence. Omitting aspects which are no longer relevant to the issues on this appeal, the legal argument made on behalf of the respondent was that the functions of an authorised person (described in this part of the case stated as a "compliance officer", a term used by Mr. Carey in evidence) were confined to s.40 only and could only be invoked in circumstances to which the first part of s.40(3) applied. As Mr. Carey was investigating an alleged unlicensed situation, he was not acting within the powers under s.40(3) and consequently was acting ultra vires the Act.
22. The solicitor for the appellant argued that the appointment of an authorised person is a general one which covered not just s.40 but also ss. 27, 48 and other sections of the 2013 Act. The District judge accepted this argument and formally found that an unauthorised person has powers under the 2013 Act in sections outside of s.40.
23. The solicitor then argued that s.40(3) did not limit the powers of an authorised person and Mr. Carey had not invoked any of his powers under the section. He referred to the decision of a different District Court judge in Monaghan who had held, having regard to the Act as a whole and s.19 in particular, that authorised persons were authorised to act to detect offences. The thrust of the argument is summarised in the case stated as follows:
"Powers were provided to an authorised person to do things that ordinary people could not do but such powers were not the entire remit of what an authorised person could do".
The trial court could have acted on the evidence of a civilian witness giving the exact same evidence as Mr. Carey who would simply play the part of a passenger which did not require a specific power.
24. The District judge's rulings are contained in paras. 32 and 35 and, for convenience they will be set out in full: -
"32. ...However, I indicated that I was concerned about the point concerning the wording of section 40(3) and the fact that it did not provide for activities targeting unlicensed activity. I indicated that I felt that this was possibly a 'slip up' in the legislation. While I considered Mr Teahan's submission that Judge Cronin had found in favour of the NTA on the same point previously I ruled that I was not bound by the finding of another District Court judge.
35. This being the case, I made my decision and dismissed the two charges as I found that, as a matter of law, the authorised person was not, in the light of the wording of section 40(3), empowered to engage in activities targeting unlicenced operators. I rejected the other points made by the respondents."
25. Interestingly, the case stated also records the fact that at the conclusion of the hearing the District judge indicated that he was minded to dismiss on the s.40(3) point but would consider making a consultative case stated. The solicitor on behalf of the appellant sought a month's adjournment to lodge written submissions and to take instructions as to whether the appellant would ask for a case to be stated. The solicitor for the respondent objected and asked for the matter to be decided as the respondent was suffering from stress due to the ongoing litigation. The District judge acceded to this request.
Case Stated under s.2 of 1857 Act
26. The key portions of s.2 of the Summary Jurisdiction Act, 1857, as modified to reflect that the jurisdiction thereby conferred is now exercised by a District judge are as follows: -
"2. After the hearing and determination by [a District judge] of any information or complaint, which he or they have power to determine in a summary way by any law now in force or hereafter to be made, either party to the proceeding before the [said judge] may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within [14 days] after the same to the said [judge] to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of [the High Court] ...".
27. The difference between an appeal by way of case stated and a consultative case stated is that an appeal by way of case stated is made after the case before the District Court has been determined. In contrast, a consultative case stated is made by a District judge before the case is decided for the purposes of obtaining the guidance of the High Court on whatever issue of law has arisen. As the case must have been determined before an appeal by way of case stated can be taken under s.2, it follows that all of the facts upon which the District judge's decision is based will have been adduced in the evidence led before that court. The appeal is limited to ascertaining whether the District judge was correct in law in deciding the case the way he did.
28. Counsel on behalf of the respondent laid significant emphasis on the limited scope of an appeal by way of case stated. The High Court does not have the function of deciding any factual issue and must determine the legal issue on the basis of the facts as found by the District judge. He characterised the question as being whether the District judge was entitled to dismiss the charge on the basis of the evidence before him.
29. It is perhaps easy to be wise with the benefit of hindsight, but it might have been prudent for the District judge to follow his own original proposal to make a consultative case stated. The point before him was a complex one with potentially far-reaching implications. It had recently been decided the opposite way by a different District Court judge. Whilst the District judge was entirely correct in saying that he was not bound by the decision of his colleague, the mere fact that two judges reached opposing conclusions on the same legal issue suggests that it might have been appropriate at least to have acceded to the appellant's solicitor's request for an adjournment to lodge written submissions before proceeding to decide whether a consultative case stated should be made or otherwise proceeding to determine the issue.
30. Of course, we acknowledge that as a court of summary jurisdiction, the District Court will always be mindful of the need to dispose of cases in a short a time as possible and as is consistent with doing justice between the parties. This is especially so where the ongoing prosecution is detrimental to the state of mind of someone the District judge is minded to acquit. As it happens, the request for immediate disposal of the proceedings may well ultimately operate to the disadvantage of the respondent as his lawyers are no longer standing over the argument successfully made on his behalf in the District Court. They are now making a materially different argument which, crucially, is one in respect of which no particular factual findings were made by the District judge.
31. Counsel for the respondent acknowledged that the argument on appeal was different to that made in the District Court. He described it as "narrower" but in our view it is not just narrower in the sense of being a subset of the argument originally made, it is a different argument. The case made to the District Court was that an authorised person could not act outside the scope of the powers expressly conferred by statute and that the bulk of the powers conferred upon an authorised person under the 2013 Act, i.e., those under s.40(3), could only be exercised for the purposes of enforcing the licensing regime against licensed operators. The case now made accepts that an authorised person can act without statutory authority if what is being done is something an ordinary member of the public can do. Instead, it is contended that the authorised person portrayed himself as having statutory authority or, as counsel put it, purported to act with the veneer of a statutory authority which he did not in fact have.
32. The difficulty with all of this is that the District judge did not make any finding that Mr. Carey purported to act under statutory authority or somehow communicated to the respondent that he was acting under a statutory authority which he did not have. The only evidence on this point was Mr. Carey's evidence on re-examination that he did not invoke any powers in his encounter with the respondent. As noted, the lack of any factual finding on this point is unsurprising in circumstances where the District judge accepted the legal argument made to him that an authorised person could not act without statutory power and could not exercise any of the powers under s.40(3) in the particular circumstances as these could only be utilised in respect of enforcement against licensed operators.
33. Counsel for the respondent relied on the authority of Attorney General (Fahy) v. Bruen (No. 2) [1937] IR 125 (presumably the judgment of Meredith J.) as authority for the proposition that he was not confined to the points argued before the District Court. This appears to be correct. Although in Bruen the case was stated under a different statutory provision, the Supreme Court confirmed that questions could be raised on the appeal to which the statement of the case was not directed as could questions that were not raised at all before the District Court provided they were questions of law (pp. 166-7). The limiting factor is that the questions of law to which new legal argument might be directed must arise on the facts as proved in evidence and as found by the District judge. Facts cannot be assumed for the purposes of making a legal argument in circumstances where the case has already been fully heard and determined by the District Court.
34. The case now made by the respondent is to the effect that subsequent to the completion of the covert test purchase, the fact that Mr. Carey showed his warrant to the respondent, conducted a cautioned interview with some degree of formality and requested the return of the €20 note which he secured for the purposes of evidence (although not actually used as such) meant that he was holding himself out to have statutory powers which he did not in fact have. For the most part these actions do not appear to be within the scope of the powers conferred by s.40(3). Mr. Carey correctly conceded that there is no statutory basis for a covert test purchase. Equally, it appears to be the case that there is no statutory basis for requesting the repayment of monies for the purposes of using them as evidence. The only overlap between what Mr. Carey did on the night in question and the powers conferred on an authorised person under s.40(3) was to ask the respondent for his name, date of birth and address - which were duly provided.
35. Thus, there is no difficulty in principle with the respondent changing his argument before this court, although it would be preferable where an issue of some significance is raised for the argument to be one which was consistently made. However, what the respondent cannot do is to seek to retrofit the evidence or the findings made by the District judge on that evidence in order to support the case now made. Had the argument now made been made to the District judge, he might well have made findings of fact on the issue based on the evidence before him. As the argument was not made to him, he did not do so.
High Court Judgment
36. The High Court answered the question raised in the case stated by confirming that the District Judge had been correct in law in dismissing the charges against the respondent. The reasoning in the judgment can be divided into two main parts. The first upholds the decision of the District Judge for the same reasons he relied on in dismissing the charges and the second rejects various additional arguments made by the appellant.
37. In paragraph 23 of the judgment the trial judge acknowledges that the District Judge did not make explicit findings of fact. However, she held that it could be readily inferred from the terms of the case stated "that the judge made findings of fact that Mr. Carey was acting qua authorised person when making the covert test purchase". She links this with the fact that the solicitor for the appellant sought to persuade the District Judge that Mr. Carey "was acting in the same way as a member of the public would do and not as an authorised officer and that it was open to him to do so"- a proposition which she rejected.
38. In circumstances where the District Judge made no findings of fact, it is not apparent that such an inference can be drawn, much less readily drawn. On one level this should not be problematic as the appellant does not dispute that Mr. Carey was acting as an authorised person. Indeed, Mr. Carey in his evidence regarding the events which led to the prosecution made it clear that he was there as an authorised person and saw it as his role to ensure compliance with the 2013 Act. It may, however, be an overly simplistic characterisation to say, as the trial judge does, that because Mr. Carey was acting as an authorised person, the wording of s. 40(3) precluded him from taking any action against unlicensed operators. This logic is premised on the assumption that Mr. Carey must have been acting either as an authorised person - in which case he could only exercise statutory powers subject to whatever limits applied to them, or as a member of the general public - in which case he could not exercise any statutory powers. The argument made by the appellant is and was more nuanced. The appellant contends that an authorised person does not need a statutory power to do something that a member of the public can do in ordinary course. It does not follow that when doing something a member of the public can do without any special statutory power, an authorised person ceases to act as an authorised person. We shall return to this point.
39. In paragraph 24 of the judgment the trial judge sets out what she characterises as "ten different ways in which the authorised person acted in a way that would not have been open to a member of the public". The respondent places significant reliance on these matters to support the argument now made on the appeal, i.e. that Mr. Carey was portraying himself as having or purporting to have a statutory authority he did not have. Given this emphasis it may be useful to set out this passage in full, bearing in mind that these are not findings made by the District judge but matters which the High Court regarded would support the conclusion drawn by the District Judge: -
"... The receipt of information as to Mr. Anderson's actions in hiring out his vehicle, the carrying out of a joint NTA/Garda compliance operation in the form of a covert test purchase, the receipt of Mr. Anderson's phone number based on information provided to him, the provision of his warrant of appointment and his identity card to Mr. Anderson, his actions in informing Mr. Anderson he was a compliance officer, the preplanned arrival of Garda Lee Donnelly and Sergeant Brian Murray attached to New Ross Garda Station, the repayment of the €12 given to him by Mr. Anderson, the forming of the view that an activity contrary to section 22 had occurred, the caution that he gave to Mr. Anderson, the fact he asked Mr. Anderson for his name, date of birth and address and took note of the answers in his official notebook and Mr. Carey's request that Mr. Anderson sign Mr. Carey's official notebook."
40. There is, in our view, an element of duplication in these matters. For example, the preplanned arrival of the Gardaí is surely part of the joint NTA/Garda compliance operation regarding the covert test purchase. Providing formal identification when informing the respondent that he was a compliance officer is, again, all part of a single transaction. Be that as it may, the more important issue is whether the view taken by the High Court that none of these were "actions that would have been open to or could have been carried out by a member of the public" is correct.
41. In paragraph 25, based on the ten actions identified in paragraph 24, the trial judge held that the District judge's "conclusions on the facts were clearly open to him". Of course, apart from the conclusion which the High Court inferred the District judge must have drawn as to Mr. Carey acting as an authorised person, no factual findings were made by the District judge. The only conclusion he reached was the legal one that an authorised person could not exercise powers under s. 40(3) for the purpose of targeting unlicensed operators. This might have warranted an inference that the District judge had concluded that Mr. Carey was purporting to exercise powers under s. 40(3). The High Court does not draw this inference, most likely because it would be inconsistent with evidence recorded in the case stated as having been given by Mr. Carey that he did not invoke any powers in his encounter with the respondent. The District judge did not suggest that he had not accepted this evidence.
42. Paragraphs 26 and 27 of the judgment were described in argument as the key area of dispute. In paragraph 26, the trial judge acknowledges that the only question is whether the District judge was incorrect in law in concluding that an authorised person is not empowered to target unlicensed operators in light of the wording of s. 40(3). She noted the appellant's acceptance that s. 40(3) did not permit an authorised person to engage in activities targeting unlicensed operators. She described the appellant's argument that an authorised person acting as such was entitled to conduct activities not identified in the 2013 Act as one "tentatively made" - although this appears to be a point which is now conceded by the respondent on this appeal. The trial judge regarded the appellant's core argument as being that "on the facts Mr. Carey was not acting explicitly as an authorised officer [sic]". She rejected that argument on the basis that the wording of the 2013 Act "makes it impossible in my view to conclude that an authorised officer [sic] acting as such may carry out activities not provided for in the Act".
43. Paragraph 27 looked at the terms of appointment of Mr. Carey which the trial judge describes as "very wide". She acknowledges that powers are also conferred on an authorised person under other sections of the 2013 Act and concludes that these are also authorised under the appointment - although on its face the appointment refers only to section 40. Crucially, in holding that no error of law was made by the District judge, she concludes: -
"Accordingly, it seems to me that the functions that an authorised person may carry out are limited to those identified under s. 40 and/or s. 27, as specified in the appointment. There is no statutory provision for functions not conferred under s. 40 and specified in the appointment. In those circumstances I am quite satisfied that the conclusion of the District judge cannot be said to be erroneous on the basis that he failed to conclude that the activities were lawful despite not being captured by the Act, in particular s. 40 and/or the appointment."
44. The second part of the judgment deals with other arguments which were made by the appellant and also rejected by the trial judge. The most significant, which is also advanced on appeal, looks at case law regarding the exercise of investigatory powers by An Garda Síochána and other regulatory authorities to contend that officials acting on behalf of such bodies may do things without express statutory power either where there is an established common law basis for such action or where the act in question can be done by a member of the public without statutory authority. The three cases in question - HPRA v. Rossi [2019] IEHC 723, DPP v. Boyce [2009] 2 IR 124 and DPP v. Mills [2015] IECA 305 - will be considered in more detail below. The trial judge rejected reliance placed by the appellant on these cases largely because they dealt with materially different statutory schemes over the exercise of Garda powers outside of any regulatory or statutory scheme.
45. In rejecting an argument that the appellant must have power to investigate the possible commission of an offence under s. 22 of the 2013 Act, the trial judge held that the doctrine of ultra vires obliged the appellant as a body created by statute to operate squarely within the four walls of the statute. A lacuna in terms of the Act would not allow the appellant to act outside of its statutory powers but would instead require a legislative remedy.
The Issues on this Appeal
46. The appellant's Notice of Appeal raises six grounds which can be encapsulated in two propositions. The first of these is that the High Court erred in concluding that an authorised person could only act within the parameters of s. 40(3) and consequently that it was impermissible for them, as a statutory investigator, to take any investigative step other than those expressly described or identified in statute or to exercise any power conferred by statute for any purpose other than that for which it is expressly conferred (see grounds 2, 3, 4 and 5). The second is, even if the conclusion that the appropriate person acted ultra vires the 2013 Act is correct, that the High Court erred in assuming that this determined the admissibility of the evidence offered by the prosecution without having regard to the test articulated by the Supreme Court in DPP v. J.C. [2017] 3 IR 417 (grounds 2 and 6).
47. It is clear from the papers that neither the District Court nor the High Court expressly considered the test articulated by Clarke J. (as he then was) in J.C. (at p. 769 of the report) regarding the admissibility or exclusion at a criminal trial of evidence taken in circumstances of illegality or unconstitutionality. In J.C. the illegality - an invalid search warrant - meant that the resulting search of the appellant's home was unconstitutional, albeit inadvertently so. The Supreme Court held by a majority that this did not automatically result in evidence obtained as a result of that search being inadmissible. Instead, that evidence should be considered by reference to a six-part test set out by Clarke J. In circumstances where neither the trial court nor the High Court considered the application of J.C. to the evidence which, on their analysis was obtained illegally by reason of an authorised person acting ultra vires his statutory powers, it is unnecessary for us to consider the J.C. test in any detail. Suffice to say the test applies to otherwise probative evidence the admissibility of which is in issue because of the circumstances in which it was obtained. The test requires a prosecutor both to establish the basis on which such evidence should be admitted and the facts necessary to justify that basis to the usual criminal standard of proof. Unsurprisingly, given the facts of J.C., the test focuses on circumstances where evidence has been obtained unconstitutionally although it is also applicable where evidence has been obtained illegally including, for example, by an investigating officer acting ultra vires but without breaching a suspect's personal rights or violating his dwelling.
48. Because the question of admissibility of evidence was not addressed independently of the question of whether the authorised person acted in breach of s. 40(3), it seems to us that a number of different consequences may flow depending on the outcome of this appeal. Firstly, the appellant may succeed on the central issue, namely in establishing that the District judge was incorrect in law in dismissing the charges on the basis that the authorised person did not have power under s. 40(3) to investigate unlicensed operators. Alternatively, the appellant may not succeed on this issue in which case, although the evidence would be prima facie illegally obtained it is still necessary for the trial court to consider whether it should be admitted pursuant to J.C. This is not a matter which could be determined by this court, or indeed the High Court, on foot of a case stated so it would be necessary to remit it to the District Court for this purpose.
49. The respondent's notice disputes each of the appellant's grounds of appeal and stands over the decision of the High Court. There is one significant disconnect between the appellant's and respondent's notices. At ground 2 the appellant contends that the High Court erred in ruling that the wording of s. 40(3) "determined the admissibility of the evidence offered by the prosecution notwithstanding that no power under section 40(3) was actually invoked in order to obtain the said evidence." In response, the respondent pleads that it was not in error for the High Court to have ruled that the wording of s. 40(3) "was relevant to the admissibility of the evidence offered by the prosecution" and that the District Court was entitled to find that "Mr. Carey was acting qua authorised person when making the covert test purchase".
50. There is a significant difference between treating a statutory provision and its alleged breach as determinative of the admissibility of evidence and treating it as relevant to the admissibility of the same evidence. This is, in part, what is covered by the J.C. test. The difficulty with the respondent's response is that both the District judge and the High Court went significantly further than treating s. 40(3) as being relevant to the admissibility of the evidence gathered by Mr. Carey. Instead, they treated the evidence as automatically inadmissible by virtue of the contended for breach of s. 40(3) - i.e. the status of the evidence vis-à-vis the exercise of powers under s.40(3) was regarded as determinative of its admissibility.
51. The Notice of Appeal does not dispute the correctness of the inference drawn by the High Court that the District judge must have concluded that Mr. Carey was acting qua authorised person. The issue is the more nuanced one of whether an official acting as an authorised person can take steps in the conduct of an investigation and carry out actions which do not have an express statutory basis. The fact that Mr. Carey was, on his own admission, acting as an authorised person is not dispositive of this question unless the courts below were correct in concluding that an authorised person may only act on foot of express powers conferred by the statute under which they are authorised. That is the issue before this court on appeal.
Analysis and Discussion
52. The core issue in this case is the extent to which, if at all, a person appointed to a specific investigatory role under statute can exercise powers additional to those expressly conferred by the statute or, alternatively, is exclusively limited to those powers set out in the statute under which they are appointed or expressly conferred by another legislative instrument. The argument successfully made in the District Court was that having been appointed under s.40(1), an authorised person could only act on foot of the express statutory powers contained in s.40(3). Further, as the powers under s.40(3) were conferred for the purpose of regulating licensed operators, Mr. Carey could not have acted legitimately - in the sense of acting intra vires his statutory powers - when investigating the respondent who is not a licensed operator. Because the District judge accepted this argument, he did not proceed to consider whether all or any of the actions taken by Mr. Carey came within the scope of s.40(3). This rationale was that Mr. Carey needed a statutory power to act and the only statutory power available could not be used for the purpose for which he had purported to use it. The solicitor for the respondent had also argued, inter alia, that there was no express statutory basis for conducting a covert test purchase in any circumstances, a point conceded in evidence by Mr. Carey.
53. The argument now made by the respondent has changed. It is accepted that an authorised person may take steps in an investigation that do not have an express statutory basis provided that what is done is no more than that which an ordinary member of the public could do without statutory authorisation. This is a significant concession because, as a matter of principle, it amounts to an acceptance that the legal basis for the District judge's conclusion was not correct. Nonetheless, the respondent argues that the District judge was correct in law to have dismissed the charges either because Mr. Carey did things in the course of his investigation which ordinary members of the public could not do or because he purported to act pursuant to a statutory authority which he did not have.
54. It is necessary to unpick this argument in detail in light of the evidence adduced and the findings made by the District judge on the basis of that evidence. In circumstances where the District judge accepted the legal argument made to him, he was not asked to and did not make any findings as to whether the individual steps taken by Mr. Carey involved things which a member of the public could or could not do without statutory authorisation. Equally, because the District judge accepted the argument that Mr. Carey could not have acted at all without statutory authority and could not have acted lawfully under s.40(3), he was not asked to and did not make any finding to the effect that Mr. Carey was purporting to exercise a statutory authority which he did not have. The respondent's argument appears to be based largely on the breakdown of the steps taken by Mr. Carey at para. 24 of the High Court judgment and the characterisation of those at para. 25 as things that would not have been open to and which could not have been carried out by a member of the public. To address this argument, it is necessary to consider the nature of statutory investigative powers both generally and under the 2013 Act.
55. The starting point for this analysis is that no statutory power is necessary for an authorised person to do something an ordinary member of the public can do. Where statutory powers are conferred, they serve a dual purpose. They may entitle an authorised person to do something which an ordinary member of the public is not entitled to do, for example to enter onto premises; to search, inspect and examine vehicles or to seize, retain and inspect documents and records. Alternatively, they may appear to authorise something an ordinary member of the public could also do - such as requiring the name, address and date of birth of an individual - but because obstruction of an authorised person and non-compliance with such request is a criminal offence, a request by an authorised person exercising statutory powers is coercive in a way which a similar request by a member of the public is not.
56. Therefore, it can be important, if not crucial, to know whether the authorised person purported to make such a request on a statutory basis or not. As noted above, the only evidence before the District Court was that Mr. Carey did not invoke any statutory power and the case stated does not record the District judge as having rejected this evidence. Further, it does not, in our view, follow from the fact that because a particular power may be conferred on an official by statute with particular statutory consequences, the exercise of an equivalent power by the official must be presumed to have been on a statutory basis. This conclusion is supported by the decision of MacGrath J. in HPRA v. Rossi (above).
57. There are many similarities between this case and Rossi. The prosecutor was a statutory body responsible for the regulation of human and animal medicines and devices in Ireland. Under the regulatory regime the manufacture, distribution and use of unlicensed products was a criminal offence. The relevant legislation provided for the appointment of authorised officers on whom certain statutory powers were conferred. Those powers were of a similar nature to those conferred on an authorised person under the 2013 Act, albeit that they are not identical. Further, obstruction of an authorised officer in the exercise of his statutory powers was a criminal offence.
58. Of relevance to the particular case in Rossi was the statutory power to require a person to provide information and assistance, which was contended to be the only basis on which an authorised officer was entitled to question or interview a suspect. The significance of the exercise of this power was that a statement made in response to questioning under the relevant section was not admissible in evidence in criminal proceedings against the person making the statement. Failure to provide information and assistance when requested was a criminal offence.
59. The HPRA conducted an investigation into the use by the defendant of botox in a beautician's clinic without a medical prescription. During the investigation an authorised officer conducted a cautioned interview with the defendant and took a statement from her. The defendant objected to the admission of the statement in subsequent criminal proceedings, arguing that the interview with the defendant could only have been conducted under the relevant statutory provision and that the HPRA could not rely on a power which was not expressly stated and contained in the legislation. As the question of whether the interview was conducted on a statutory basis or not was a live issue in the proceedings, the District judge made a formal finding that the defendant had been interviewed under caution on a voluntary basis and that no statutory power had been invoked to question her. He then stated a case as to whether the admissions made in the course of the interview were admissible in evidence in circumstances where no statutory provision was invoked to conduct the interview.
60. MacGrath J. answered this question "Yes". He stated at paras. 38 and 39 of his judgment: -
"38. The provisions of s. 32B(3) are couched in non-mandatory terms and empower, but do not oblige, an authorised officer to obtain information in a particular manner or in the manner specified in s. 32B(3)(e). In so far as it is suggested that questions may be raised only pursuant to an express power conferred by statute, I do not believe that this is supported by authority. If in truth it is a power, about which the court is not convinced, then the court echoes the sentiments of Finnegan P. in DPP v. Boyce [2008] IESC 52, that a power may be conferred by statute, by common law or by consent.
39. I see nothing in the Act which prohibits an authorised officer from asking a question in circumstances where the failure to answer the question has no legal consequences. Nor do I interpret the Act in a manner which suggests that if information is to be elicited, it can only be done in one way."
The respondent relies on a passage in the following paragraph, para. 40, to the following effect: -
"Further, if for example an authorised officer was to take a statement in circumstances where the defendant was left under the impression that he or she was obliged to answer questions because the authorised officers had entered the premises in accordance with a warrant of authority, it may be open to the trial judge to conclude that such statement is not truly voluntary."
It is notable that MacGrath J. was clearly of the view that if such an issue arose, the trial judge would have to assess the evidence before him before concluding the statement was not made voluntarily and, by implication, that it should be excluded. Further, it is notable that in Rossi the prosecution case was largely dependent on admissions made by the defendant in the course of the interview which is not the situation here. Although the respondent, by providing an explanation for why he was operating a taxi without a licence, could be taken to have admitted that he was actually doing this, the main evidence against him was Mr. Carey's evidence of the covert test purchase which had been completed before any interview took place.
61. The High Court distinguished Rossi on the basis that although the subject matter was superficially similar, the statutory context was "entirely different and therefore the case is only of limited utility". As it happens, the High Court judgment seems incorrect in assuming that Rossi involved covert test purchases. From the Rossi judgment it appears that the investigation was prompted by a statement taken from a client of the defendants i.e. a member of the public. We do not agree that the statutory scheme in Rossi is so materially different to the 2013 Act that the conclusions drawn by MacGrath J. are not of general application. For clarity, although these provisions are not spelled out in the Rossi judgment, under s.32B(1) of the Irish Medicines Board Act 1995, as amended in 2006, authorised officers are appointed "for the purposes of this Act".
62. The conclusions drawn by MacGrath J. in Rossi are consistent with those of the Supreme Court in DPP v. Boyce (above), a case on which he relied. Boyce concerned powers conferred on members of An Garda Síochána to take bodily samples for forensic testing under the Criminal Justice (Forensic Evidence) Act, 1990. Although the consent of a suspect was still required in the 1990 Act, inferences could be drawn from a refusal to give consent and obstruction of members of the Gardaí exercising powers under the Act was itself a criminal offence. The analysis in Boyce is perhaps of less direct relevance because the section in issue included a provision stating that powers conferred by the section were "without prejudice to any other powers exercisable" by the Gardaí.
63. In the particular case the Gardaí had not relied on the statutory power but instead had taken samples on a voluntary basis from an accused person while he was in custody. At trial, the accused did not dispute the voluntariness of the samples but contended that the enactment of a statutory power to take samples displaced the pre-existing common law power to take such samples on a voluntary basis. The Supreme Court rejected this argument. Denham J. held that the Oireachtas did not intend to exclude the common law when it enacted the 1990 Act and indeed the common law remained the governing law in circumstances to which the 1990 Act did not apply. Finnegan J. noted the difference between power to take samples without consent and what the statute termed a "power" to take samples, but only when consent to do so had been provided. He concluded that the term "powers" was not confined to statutory powers and included powers at common law which existed prior to the enactment of the statute.
64. The appellant relies on the decision of this Court in DPP v. Mills (above) as authority for the proposition that the absence of a statutory power to conduct a covert test to purchase (in that case of drugs) does not render the actions of the investigator in doing so unlawful. The High Court dismissed the procedural authority of Mills on the basis that it "was not in any way concerned with the interpretation of the Act in issue here and the powers of the authorised officers herein". With respect, this appears to misunderstand the appellant's argument and indeed the importance of Mills itself.
65. Mills involved charges of possession of a controlled drug for the purpose of sale or supply under the Misuse of Drugs Act, 1984. The evidence in the case was largely based on purchases of drugs made by undercover police officers as part of a specific operation. There was no statutory power generally authorising an operation of this nature nor specifically authorising the purchase of drugs by undercover officers. The issues raised in the case were potentially more serious than those arising in this case because the purchase and possession of drugs is itself an illegal act whereas booking and taking a taxi ride in an unlicensed taxi is not an illegal act for the passenger.
66. Much of the judgment considered the law, including that of the European Court of Human Rights on the need for safeguards surrounding undercover police operations. Mahon J. considered in some detail the judgment of the House of Lords in R. v. Looseley [2001] 1 WLR 2060 which concerned similar subject matter to Mills. He cited the following comments of Lord Bingham CJ.:-
"On the other hand it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else."
And of Lord Hoffman:-
"The test of whether the law enforcement officer behaved like an ordinary member of the public works well and is likely to be decisive in many cases of regulatory offences committed with ordinary members of the public, such as selling liquor in unlicensed quantities...selling videos to children under age and operating a private hire vehicle without a license."
67. Ultimately, Mahon J. upheld the type of undercover operation which produced the evidence in the case despite the "degree of informality" which he held could "reasonably be described as unsatisfactory". He concluded:-
"The practice of test purchasing in relation to alcohol and tobacco products for the purpose of enforcing the law relating to the underage purchasing of such products is well established in this jurisdiction ...".
It goes without saying that the individuals carrying out the test purchases of alcohol and tobacco for purposes of providing evidence of underage sale are not, by reason of their age, members of An Garda Síochána. It follows from all of this that the suggestion in paragraph 24 of the High Court judgment that a member of the public could not have carried out covert test purchase - whether in conjunction with An Garda Síochána or otherwise - is legally incorrect. It is also incorrect to assume that a covert test purchase could not be made by an authorised person without an express statutory power to do so.
68. The characterisation of many of the other matters highlighted in that paragraph as matters that were not open to members of the public or which could not have been carried out by members of the public is also, in our view, questionable. It is important to bear in mind that the relevance of the "ordinary member of the public" lies in the need for an authorised person to have an express statutory power to do something that an ordinary member of the public cannot lawfully do. If a member of the public is lawfully entitled to do something, then a person appointed under statute for a particular purpose is also entitled to do that thing unless in doing so he breaches a personal right of an affected person including a suspect in a criminal investigation.
69. It is not a requirement to show that an ordinary member of the public would, for example, conduct a cautioned interview; just that it would not be illegal for such a person to do so. Indeed, employers - who are ordinary members of the public - will occasionally conduct a cautioned interview in the context of workplace disciplinary investigations. The caution in such cases is unlikely to include any suggestion that the person being interviewed is suspected of committing a crime but will generally make it clear that the contents of the interview are being recorded may be used against that person in the disciplinary process. Similarly, there is nothing inherently unlawful in a member of the public receiving information regarding suspected illegal activity. It may rarely occur but the circumstances in which it might can be easily envisaged - for example members of a local residents' association might receive communications about individuals suspected of breaking the law regarding matters such as waste disposal or parking.
70. The last issue relied on by the respondent is the suggestion that even if Mr. Carey could lawfully do the things he purported to do, he nonetheless acted unlawfully in presenting himself as having statutory authority to do them when this was not the case. The respondent faces a number of difficulties in relation to this argument. Firstly, as previously noted, the only evidence before the District Court was that Mr. Carey had not invoked any statutory power. No finding was made by the District judge that he did not accept this evidence. Secondly, no evidence was adduced to show that the respondent somehow mistakenly believed that Mr. Carey was acting under a statutory power that he did not in fact have. The height of the respondent's case is that subsequent to the completion of the covert test purchase, Mr. Carey identified himself as compliance officer and an authorised person, conducted a brief interview with the respondent and sought repayment of the €20 note he had used to pay for the taxi ride and returned the change provided by the respondent.
71. The respondent contends that there were legal consequences for him when Mr. Carey questioned him and sought information at the end of the journey. It is not clear what those legal consequences are contended to be. Mr. Carey was not exercising powers under s.40(3) of the 2013 Act so any failure to provide information in response to his questions could not have been regarded as obstruction for the purposes of a criminal prosecution under s.43. It is clear from Rossi and Boyce that even where a statutory power is expressly conferred to do something or seek information in a particular way, this does not deprive the relevant investigator of the entitlement to seek the same information on a voluntary basis. The difference lies in the coercive nature of the request - the subject of an investigation must comply with a request made under a statutory power or face the legal consequences for failing to do so. This is simply not the case where a request is made voluntarily.
72. Two observations can be made in respect of these matters. Firstly, Mr. Carey did not identify himself as an authorised person until after the covert test purchase was entirely complete (i.e. the taxi had been booked, the cab had arrived, he had taken the ride and he had paid for it). Insofar as it is claimed that Mr. Carey unlawfully purported to act under statutory authority or presented himself as having such statutory authority, he clearly did not do so prior to that point. There was of course no finding made by the District judge that Mr. Carey portrayed himself as having statutory powers in order to catch the respondent. Nonetheless, if the disclosure of his identity and the formal presentation of his warrant of appointment were to be regarded as Mr. Carey presenting himself as having ostensible statutory authority, different legal issues would arise as to the treatment of the evidence obtained before Mr. Carey disclosed his identity to the respondent and after he had done so. Clearly the respondent could not contend that he mistakenly cooperated with Mr. Carey because he was under the misapprehension that he was exercising coercive statutory powers, at a time when he was entirely ignorant of Mr. Carey's status as an authorised person. As previously noted, the District judge did not consider the admissibility of the evidence obtained by Mr. Carey at all in circumstances where he was of the view that he had no power to investigate an unlicensed operator.
73. Second, MacGrath J. in Rossi points out that insofar as it is contended that information was provided or statements made on a basis that was not truly voluntary because the person providing the information or making the statement thought they were under a statutory compulsion to do so, the trial judge would have to assess all of the evidence in order to decide whether the statement was truly voluntary or the caution truly effective. The admissibility of the evidence would then depend on the trial judge's conclusions in this regard. That assessment did not take place in this case because the trial judge accepted respondent's solicitor's argument that Mr. Carey was not entitled to act in respect of the respondent at all because he lacked any power to investigate unlicensed operators.
74. It is not open to this court on a case stated to decide whether the evidence in issue should or should not have been treated as admissible on these grounds by the District judge. The only question before this court is whether the High Court was correct to hold that the District judge was correct in law in dismissing the charges. Save where it is clear on both the evidence and the law that there are no circumstances in which the District judge could have reached any conclusion other than the dismissal of the charges, this court cannot speculate on an appeal by way of case stated as to what conclusion he might have reached on the argument now made or what factual findings he might have made on the evidence in light of these arguments. These are decisions which will have to be made by the District judge on remittal of the matter to him.
Conclusions
75. In all of the circumstances it is our view that the High Court was incorrect to answer the question posed to the effect that, on the facts as found, the District judge was correct in law in dismissing the case. It is our view that for the reasons set out above that the District judge was not correct in law to dismiss the case. It follows that the appeal against the decision of the High Court will be allowed.
76. Further, the District judge did not make any finding of fact on the evidence before him relevant to the argument now made by the respondent, i.e. that in conducting the covert test purchase Mr. Carey somehow presented himself to the respondent as exercising a statutory authority which he did not have. Even if a factual finding were to be made to that effect, it would still be necessary for a decision to be made as to the admissibility of the evidence gathered by Mr. Carey on the occasion in question. This has not been done. In the circumstances it is appropriate that the matter be remitted to the District Court for the purposes of considering the case in light of this judgment.
77. We note that no order for costs was made in the High Court in circumstances where the respondent had been granted a legal aid certificate for a solicitor and two counsel for the purposes of the case stated by the District Court. We note also that the Notice of Appeal does not raise any grounds of appeal in relation to costs nor seek any order for costs in the event, which has transpired, that the appeal was successful. In those circumstances we do not propose making any order for costs on this appeal. If either party wishes to contend for a different costs order they have 14 days from the delivery of this judgment to make a short written submission (not exceeding 1,500 words) on the issue of costs to which the opposing party shall have a further 10 days to reply.
78. Edwards J. and Kennedy J. have read this judgment in advance of its delivery and have indicated that they are in agreement with it and with the orders proposed.
Result: Appeal Allowed