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Cite as: [1996] IEHC 30, [1997] 1 ILRM 440

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D.P.P. v. Fox [1996] IEHC 30; [1997] 1 ILRM 440 (7th November, 1996)

THE HIGH COURT

Record No. 1996 No. 809 SS

IN THE MATTER OF THE SUMMARY JURISDICTION ACT 1867 SECTION 2

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961 TO 1991

IN THE MATTER OF THE RULES OF THE DISTRICT COURT

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT/PROSECUTOR

AND

FRANCIS FOX

DEFENDANT/ACCUSED

Judgment of McGuinness J. delivered on the 7th day of November, 1996.

1. These proceeding come before this Court by way of a Case Stated pursuant to the provisions of the Summary Jurisdiction Act, 1857 as amended and extended by

Section 51 of the Courts (Supplemental Provisions) Act, 1961.

2. The Case Stated arises out of a prosecution pursuant to the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1989 (SI 308 of 1989) and the Diseases of Animals Act, 1966. Four summonses were issued alleging that the Defendant committed a number of offences on the 29th of November, 1993, the 30th of November, 1993 and the 3rd of December, 1993. The summonses were issued pursuant to Section 1 of the Courts (No. 3) Act, 1986 (which I shall refer to as the 1986 Act) and the date of application for the summonses was the 4th of September, 1995. They were originally returnable to the District Court at Crossmolina, Co. Mayo on the 5th October, 1995. When the matter came on for hearing before the District Judge on the 4th of January, 1996 it was submitted on behalf of the Defendant that the time limit for summonses issued pursuant to the Courts (No.3) Act, 1986 is a time limit of six months and that no other time limit arises except in the case of certain statutory offences where shorter time limits may apply. The authority given to the District Judge for this proposition was the decision of the Supreme Court in the cases of D.P.P. -v- Arthur Nolan and D.P.P. -v- District Justice Maura Roche and Paul Kelly reported at [1989] ILRM 39 (these cases are also reported at [1990] 2IR 526 and in the course of this judgment I will refer to that report).

3. The District Judge held that the point raised by the Defendant's Solicitor was valid and dismissed all four summonses. The Prosecutor then applied for a case to be stated to this Court pursuant to Section 2 of the Summary Jurisdiction Act, 1857 as extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961 and the District Judge has accordingly sought the opinion of this Court as to whether his determination was correct in point of law.

4. The offences with which the Defendant was charged in the summonses arise under Regulations No.16(2), 19(1)(a), 32(3) and 48(1)(h) of the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1989. Regulation 35 of that Order provides that "where a person contravenes any provision of this Order, he shall be guilty of an offence under the Act" (the Act being defined in Regulation 2 as the Diseases of Animals Act, 1966). Both the Statutory Instrument and the 1966 Act are recited in the summonses.

Section 18 of the Bovine Diseases (Levies) Act, 1979 (No. 26 of 1979) provides as follows:

"18 Notwithstanding Section 10(4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under the Diseases of Animals Act, 1966 or under this Act may be instituted at any time within two years after the date of the offence."

5. Counsel on behalf of the Prosecutor in her argument relies on this section as providing a time limit of two years rather than six months from the date of the alleged offence to the date of application for a summons under Section 1 of the 1986 Act. With regard to the authority cited in the District Court, she submits that this point also arose before the learned Barron J. in the case of D.P.P -v- Howard and was dealt with in his judgment in that case (unreported 17th November, 1989). In that judgment the learned Barron J. held that in the case of a Revenue Prosecution where the statutory limit for the issue of a summons is one year, that limit also applied where application was made for the issue of a summons under the 1986 Act.

6. Counsel on behalf of the Defendant submits that the time limit for the application for a summons under the 1986 Act cannot be longer than six months and refers me to the authority cited in the District Court. He suggests that where, as in the case of the 1979 Act, a longer statutory time limit is provided, the Prosecutor must use the complaint procedure under the Petty Sessions (Ireland) Act, 1851 rather than the procedure under the 1986 Act. He also submits that where, as in this case, the Prosecutor is relying on a longer statutory time limit the statute providing for the longer time limit should be recited on the face of the summons.

7. Section 1 of the Courts (No. 3) Act, 1986, insofar as it is relevant to this case, provides as follows:-

"1(1) Proceedings in the District Court in respect of an offence may be commenced by the issuing, as a matter of administrative procedure, of a document (referred to subsequently in this section as 'a summons') by the appropriate office of the District Court.

(4) An application for the issue of a summons in relation to an offence may be made to the appropriate office of the District Court by or on behalf of the Attorney General, the Director of Public Prosecutions, a member of the Garda Siochana or any person authorised by or under statute to prosecute the offence.

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

8. The question of the time limit for the issue of a summons under the 1986 Act was considered by the Supreme Court in the cases of D.P.P. -v- Nolan and D.P.P. -v- District Justice Roche and Kelly reported at [1990] 2 IR 526. The summonses dealt with in those cases were summonses to which the general six month limit would apply under the Petty Sessions (Ireland) Act, 1851 and the question which arose for decision by the Supreme Court was whether that time limit ran from the date of the alleged offence to the date of the application for a summons under Section 1 of the 1986 Act or whether it ran to the date on which the matter first came before the District Court. The ratio of the decision of the Supreme Court on this point therefore seems to me to be set out in brief by the learned former Chief Justice Finlay J. at page 545 of his judgment on behalf of the Court where he states:-

"With regard to the next major issue which arose, I am satisfied that the interpretation of Section 1, subsection 7 (a) of the Act of 1986 must be that it applies the time limit provisions of Section 10, para 4 of the Act of 1851 to proceedings commenced under the Act of 1986 subject to the variation that the time limit of six months from the date of the alleged offence to the date of the application for the issue of a summons is substituted for the time limit of six months from the date of the alleged offence to the date of the complaint to the District Justice".

9. The findings of the Supreme Court are recapitulated at page 546-7 of the report of the judgement of Finlay C.J. as follows:-

"(1) The Courts (No.3) Act, 1986 duly authorises the issue of summonses for the trial of offences by the District Court.

(2) The time limit applicable to summonses issued pursuant to the Act of 1986 is a limit of six months from the date of the alleged offence to the date of the application pursuant to Section 1, subsection (4) for the issue of a summons. No other time limit arises except in the case of certain statutory offences where shorter time limits may apply. In the case of special shorter statutory time limits for summary offences, the time limit must be construed as being between the date of the offence and the date of the application for the summons."

10. In the present case it was argued before the District Judge and Counsel for the Defendant also argued before me that the reference by Finlay C.J. in paragraph (2) "shorter statutory time limits" necessarily excludes any longer statutory time limit and that an absolute time limit of six months applies.

In the case of D.P.P. -v- Howard, as stated above, the learned Barron J. considered a similar argument. At pages 3 to 4 of his judgment Barron J. refers to the passage in D.P.P. -v- Nolan quoted above and states:-

"While literal interpretation of this passage might suggest that an application for the issue of a summons under Section 1 of the 1986 Act can never be validly made after the expiry of six months from the date of the alleged offence, this is clearly not what was intended.

In the same judgment Finlay C.J. said at page 44:

'....................I am satisfied that the interpretation of Section 1(7)(a) of the 1986 Act must be that it applies to the time limit provisions of Section 10(4) of the Act of 1851 to proceedings commenced under the 1986 Act subject to the variation that the time limit of six months from the date of the alleged offence to the date of the application for the issue of a summons is substituted for the time limit of six months from the date of the alleged offence to the date of the complaint to the District Justice.'

In this passage Finlay C.J. is construing Section 1(7)(a) of the Courts (No.3) Act, 1986. He refers to one provision - Section 10(4) of the Petty Sessions (Ireland) Act, 1851 - relating to the time for making a complaint in relation to an offence. He does not exclude other like provisions. The passage upon which Counsel for the Accused relies must be read as referring primarily to Section 10(4) of the 1851 Act.

In my view Section 1(7)(a) of the 1986 Act recognises that procedure by way of complaint is still open but that when an application for the issue of a summons is made under Section 1(4) instead of a complaint the time within which such application must be made is the same as the time allowed for making a complaint of that alleged offence."

11. Referring to the Case Stated before him, the learned Judge said at page 4 to 5 of his judgment:-

"Section 39 of the Finance Act, 1985 refers to the time within which proceedings of the nature indicated must be instituted. The present proceedings are accepted as being proceedings within the meaning of that section. Proceedings invoking the summary jurisdiction of the District Court in criminal matters are instituted by the making of a complaint. In this sense there is no distinction between 'institute' and 'commence'. Accordingly, if the present prosecution had been instituted by the making of a complaint, such complaint could have been made at any time within one year of the alleged offence. This being so, Section 1(7) (a) of the 1986 Act authorises the application for the issue of the summons to be made within a like period. The application for the issue of the present summons was therefore in time".

12. It seems to me that the learned Barron J. is clearly correct in his interpretation and I have no difficulty in following his authority. I would add that I consider that the wording of Section 1(7)(a) of the 1986 Act clearly refers to "any provision made by or under any statute passed before the passing of this Act relating to the time for making a complaint in relation to an offence".

13. The phrase "with any necessary modifications" used in the subsection would appear, in the light of the decision of the Supreme Court in D.P.P. -v- Nolan , to refer, inter alia, to the change from the time limit running to the making of a complaint to the same statutory time limits running to the making of an application for the issue of a summons. Various special time limits provided in "any statute passed before the passing of this

(1986) Act" would therefore stand.

14. In the present case therefore the time limit of two years provided under Section 18 of the Bovine Diseases (Levies) Act, 1979 applies and the applications for the issue of the present summonses were in time.

15. Counsel for the Defendant also submitted that where, as in this case, a special time limit applies under statute, the relevant statutory provision should be recited on the face of the summons. No authority was advanced for this proposition and it does not seem to me that a failure to recite the provisions of Section 18 of the 1979 Act on the face of the summonses could in any way invalidate the summonses.

16. It follows that the determination of the District Judge was wrong in law and that the prosecutions against the Defendant should continue.