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Cite as: [1997] 1 IR 422, [1997] IEHC 45

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The People (D.P.P.) v. Doyle [1997] IEHC 45; [1997] 1 IR 422 (5th March, 1997)

THE HIGH COURT

1996 No.694SS

CASE STATED

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT/PROSECUTOR

AND

DESMOND DOYLE

RESPONDENT/ACCUSED

Judgment of Mr. Justice Geoghegan delivered on the 5th day of March, 1997.

1. This is an Appeal by way of case stated by the Director of Public Prosecutions against the dismissal of a summons by Judge James Paul McDonnell, a Judge of the District Court assigned to the Dublin Metropolitan District. The charge in the summons was as follows:-

"That you, on the 17th day of September, 1994 at Cavendish Row, Dublin 1 in the said District being a person arrested under Section 49(6) of the Road Traffic Act, 1961 and brought to a Garda Station, having been required by Alan Higgins, a member of an Garda Siochana, pursuant to Section 13(1) of the Road Traffic (Amendment) Act, 1978, to permit a designated registered medical practitioner to take from you a specimen of your blood, or at your option, to provide for the designated registered medical practitioner a specimen of your urine, did refuse to comply with the said requirement, contrary to Section 13(3) of the Road Traffic (Amendment) Act, 1978, as amended by Section 5 of the Road Traffic (Amendment) Act, 1984."

2. The learned District Court Judge noted that the summons did not disclose an offence in that he took judicial notice of the fact that there was no Garda station at Cavendish Row. The solicitor for the Prosecution requested the Judge to permit an amendment to the summons in order to insert in lieu of "Cavendish Row, Dublin 1" the words "Fitzgibbon Street Garda Station". The Judge refused to make the amendment and dismissed the charge on the merits. In the case stated he is asked the following questions:-

1. Was I correct in law in ruling that the summons before me was an invalid summons by virtue of it's non compliance with the requirements of

Section 1(3)(a) of the Courts (No.3) Act, 1986?

2. If the answer to 1 above is "yes", whether I was correct in law in holding that my discretion to amend the Summons was limited to those circumstances where, inter alia, the particulars of the offence disclosed an offence known to the criminal law, albeit an offence whose particulars were incorrect and that I was precluded from making the amendment sought in conformity with the requirements of constitutional justice and fair procedures?

3. If the answer to 2 above is "yes", whether I was correct in law in holding that the accused person, who was without legal representation, had been put in jeopardy in the circumstances of the case and that consequent upon my earlier rulings I should dismiss the prosecution on the merits?

3. The case stated discloses that it had been urged upon the Judge by the solicitor for the Prosecution that having regard to the case of State (Duggan) -v- Evans (High Court, October, 1977) and Rule 88 of the District Court Rules, he had full power to make the amendment. But the Judge expressed the view that Rule 88 of the District Court Rules had been amended by implication by the Courts (No.3) Act, 1986 and that in his view the law as cited merely empowered him to make amendments where the particulars of an offence recited on the summons disclosed a valid (if albeit inaccurate) criminal offence, such as in relation to the date of an offence. But in the instant case, he was of the view that no such criminal offence was validly alleged and that therefore the particulars of the offence were not in conformity with the requirements of Section 1(3)(a) of the Courts (No.3) Act, 1986 which was to be the effect that the summons should state shortly in ordinary language particulars of the offence alleged.

4. When the case stated came for hearing Counsel for the Respondent/Accused raised a query as to whether the proper time limits had been complied with in setting down the case stated. The matter was adjourned, so that this could be checked out and it was found that the Case Stated was in order. That having been established, Counsel for the Respondent/Accused indicated to the Court that he was not putting forward any arguments in support of the view taken by the District Judge. Counsel for the Director of Public Prosecutions argued against the view taken by the Judge and relied also on written submissions put before the Court.

5. I am satisfied that the Courts (No.3) Act, 1986 has not affected in any way the wide powers of amendment given to District Judges under Rule 88 of the District Court Rules and that the principles laid down by Finlay P. (as he then was) in the State (Duggan) -v- Evans are still applicable in relation to the new type of summons issued under the 1986 Act. Section 1(6) of the 1986 Act provides that a summons duly issued under that Act shall be deemed for all purposes to be a summons duly issued pursuant to the law in force immediately before the passing of the Act. In my view the District Judge was entitled to treat this summons in exactly the same manner as a Summons issued under the old system and that he was free to accede to the application for the amendment and was not justified in dismissing the summons on the merits.

6. I would therefore answer the specific questions as follows:-

1. The non compliance with the requirements of Section 1(3)(a) of the Courts (No.3) Act, 1986 rendered the Summons irregular but not invalid.

2. The learned District Court Judge was not correct in holding that his discretion to amend the Summons was limited in the manner suggested in this question.

3. The third question does not now arise.