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O'Loughlin v. McMenamin [1997] IEHC 85 (15th May, 1997)

THE HIGH COURT

Record No. 1995 No. 200JR

JUDICIAL REVIEW

BETWEEN

DANIEL O'LOUGHLIN

APPLICANT

AND

DISTRICT JUDGE LIAM McMENAMIN AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT of Mrs. Justice McGuinness delivered the 15th day of May, 1997.

1. In these proceedings the Applicant seeks an Order of Prohibition by way of Judicial Review prohibiting the Respondents from taking any further steps in criminal proceedings arising from a number of charges which were originally listed for hearing before the District Court at Raphoe, County Donegal on the 28th day of June, 1990. The first named Respondent is now deceased. The granting of the relief sought is opposed by the second named Respondent.

2. The charges against the Applicant arise out of incidents which are alleged to have occurred on the 30th day of January, 1990. The Applicant was prosecuted by means of the service of a summons for assault and malicious damage and a number of serious road traffic offences. These charges were listed to come before the District Court at Raphoe on the 28th day of June, 1990. On that day the Applicant failed to appear and was not represented in

3. Court. The learned District Judge having being satisfied as to the service of the summons issued a bench warrant for the arrest of the Applicant. The Applicant, who is a lorry driver, resided at an address at Liscooley Villas, Castlefin, County Donegal and in accordance with the normal Garda practice the warrant was sent to Castlefin Garda station for execution on the grounds that this was the nearest Garda station to the Applicant's home address. The warrant was re-issued by the learned District Judge on the 28th February, 1991, the 2nd September, 1992, and the 20th May, 1993. The Applicant was arrested on foot of a further warrant for failure to pay a fine on the 21st July, 1993 and was taken to Killybegs District Court were he was remanded on bail to appear at Letterkenny District Court on 27th July, 1993. On that date the Applicant was put on his election in regard to the matters with which he was originally charged and elected to be dealt with in the District Court. He pleaded not guilty to all the matters with which he was charged and the case was adjourned to Raphoe District Court on 28th October, 1993.

4. From that time onward the matter was adjourned on numerous occasions, virtually all of them either at the request of the Applicant's solicitor or in response to points of legal argument made by the Applicant's solicitor. On one occasion there was an adjournment at the request of the prosecution and on another occasion, in December 1994, the matter was not reached in the District Court list. On 24th July, 1995 the Applicant applied to the High Court for leave to issue the present Judicial Review proceedings. The learned High Court Judge (Lavan J.) refused leave and the Applicant appealed his decision to the Supreme Court. On the 31st day of July, 1995 the Supreme Court allowed the appeal and permitted the issue of the Judicial Review proceedings. For reasons which are not clear it appears that the Order of the Supreme Court was not perfected until the 4th December, 1995 and the proceedings were not in fact served on the second named Respondent until July, 1996. The proceedings in the District Court have been adjourned from time to time awaiting the determination of the present Judicial Review proceedings before this Court.

5. A number of grounds for an Order of Prohibition are claimed in the Affidavit of Kieran O'Gorman, Solicitor for the Applicant, sworn on the 20th July, 1995. The first main ground is that the warrant under which the Applicant was arrested was invalid in that at the time of the re-issuing of the warrant under Rule 78 of the Rules of the District Court 1948 there was no certificate attached to the warrant setting out the reasons why it had not been executed, nor had the District Judge heard evidence on oath as to why it had not been executed. In his Affidavit Mr. O'Gorman claims that the warrant was invalid and that on this account the District Judge had no jurisdiction to deal with the various charges. The second named ground which is put forward is that there has been an unconscionable delay in prosecuting this matter and that to proceed with the charges at the present time would be a breach of the constitutional rights of the Applicant, in particular his rights under Article 38 of the Constitution, and would also be a breach of the rules of natural justice and fair procedures. The Applicant claims that there was inexcusable delay by the Gardai in executing the warrant and that they could readily have executed it at an earlier date.

6. The Director of Public Prosecutions in his statement of opposition asserts that the learned District Judge had full jurisdiction to deal with the matter at all times and argues that the delay in executing the warrant was attributable to the Applicant himself. The statement of opposition is supported by a number of Affidavits sworn by Gardai who had been involved in the matter. From these Affidavits it appears that at reasonably regular intervals efforts were made to execute the warrant on the Applicant at his address in Castlefin. He was not present at the house at any time. The Gardai had a number of conversations with the Applicant's wife - sometimes through the front door which she refused to open - and left messages for the Applicant to contact them in connection with the warrant. He did not do so. It also appears from the Garda Affidavits that at least for the vast majority of the time from 1990 to 1993 the Respondent was residing out of the jurisdiction at an address at Flat 4, Bowling Green, Strabane, in Northern Ireland. The Gardai also provide information that from 5th June, 1991 to 17th February, 1993 the Applicant was signing on the unemployment register at Strabane, County Tyrone. The fact that the Respondent was residing outside the jurisdiction is not seriously controverted by the Applicant's Solicitor in his Affidavits, although he does assert that the Applicant was quite frequently in Donegal during the period.

7. A rather curious feature of these proceedings is that there is no Affidavit whatever sworn by the Applicant himself, either as to the explanation for his failure to appear on the first occasion in the District Court at Raphoe on 28th June, 1990 or as to his availability for execution of the warrant in the jurisdiction during the period from June 1990 to July 1993. While his solicitor's Affidavit is no doubt sworn on instructions, it does nevertheless contain considerable amounts of hearsay.

8. As regards the first ground for Judicial Review - the invalidity of the re-issued warrant - Senior Counsel for the Applicant Mr. Giblin did not lay any great stress on this particular ground. In taking this course he was wise as the matter has been fully dealt with by the Supreme Court in the case of The State (McCarthy) v. Governor of Mountjoy Prison in a judgment delivered by O'Dalaigh C.J. on 20th October, 1967 (unreported).

9. Rule 78 of the 1948 District Court Rules states as follows:

"78. Whenever any warrant, other than a warrant for the arrest of a person charged with an indictable offence, is addressed, transmitted or endorsed for execution, to any person, and he is unable to find the person against whom the warrant has been issued, or to discover where that person is, or where he has goods, he shall return such warrant to the Justice for the District in which the same was issued within such time as is fixed by the warrant (or within a reasonable time, not exceeding six months, where no time is so fixed) with a certificate (Form 19) endorsed on it stating the reason why it has not been executed, and the said Justice may re-issue the said warrant, after examining any person on oath, if he thinks fit to do so, concerning the non-execution of the warrant, or may issue any other warrant for the same purpose from time to time as shall seem expedient."

10. It is accepted that in the present case no Form 19 certificate was attached to the warrant at the various times when it was re-issued by the first-named Respondent. Nor did the first-named Respondent hear evidence on oath from the relevant Gardai. In the McCarthy case the warrant fell to be executed by a bailiff rather than by a member of the Garda Siochana but the same principles clearly apply. Dealing with the validity of the warrant and how it should affect the jurisdiction of the District Judge the learned O'Dalaigh C.J. stated at page 11 of the judgment:

"I accept that Rule 78 lays a duty upon the bailiff. I think it should also be construed as meaning that a warrant which has not been executed within the time specified (i.e. the time fixed for return by the warrant, or, where no time is fixed, a reasonable time, or, in the latter case, in any event a time not exceeding six months) is a stale warrant and cannot be lawfully executed. Before this can be done it must be re-issued; and the re-issued warrant in its turn is also subject to the time limitations stated in Rule 78. There is of course the alternative of issuing a new warrant. Is there any good reason for reading the power to re-issue a stale warrant as being limited to the circumstances in which (to use the old terminology) the bailiff has defaulted in making a return in due time and with the proper endorsement? The re-issued warrant comes with the same authority as the original warrant. Clearly a District Justice may re-issue an original warrant which has been returned with endorsement within the time specified. Why not also outside such time and independent of whether or not the bailiff has been in default? The purpose of the warrant is to execute the Court's Order; the bailiff's default is a matter between the Court and the bailiff, and ultimately between the bailiff and the bailiff's superiors. But the Court's duty and power to see its Orders are executed can be in no way dependent upon the default of a third party. The party against whom execution has not yet been made suffers no hurt; rather has he enjoyed what can be described as an unwarranted respite. A new warrant will be appropriate where the original warrant has been destroyed or lost and also, although not necessarily so, where a new bailiff is chosen. But in all other cases reason and principle, economy and dispatch, indicate that the original warrant should be re-issued. The re-issued warrant with the date of re-issue endorsed thereon is given a new life as from that date of the duration specified in Rule 78.

For these reasons I am quite satisfied that the reasoning in Shield's case is correct, and that the same reasoning is applicable in the case of Rule 78. The District Justice's power to re-issue an original warrant is in no way curtailed by the rule. The rule does impose a duty on the bailiff. It also indicates when a warrant is stale; but it affects no limitation on the power of the Court to see that its Orders are executed whether by means of a re-issued warrant or a new warrant.

The prosecutor's main challenge to the validity of the several warrants under which he is detained..... in my opinion therefore fails."

11. This Court is clearly bound by the decision of the Supreme Court in the McCarthy case. It is therefore clear that the jurisdiction of the learned District Judge to see that his Orders were executed by means of a re-issuing of the warrant is in no way affected by the fact that the Gardai failed to attach the proper Form 19 certificate to the warrant prior to its re-issue.

12. Apart altogether from the complaint with regard to the validity or otherwise of the re-issued warrant, Counsel for the State, Mr. McDonagh, submitted to me that once a complaint was made to the District Judge in respect of the various charges the District Judge had full jurisdiction to deal with the matter and the validity or otherwise of the warrant became irrelevant. I consider that Mr. McDonagh is correct in this submission. While it is not so stated in any of the Affidavits before me I consider that it may be presumed that the summonses in this case were issued pursuant to the procedures set out in the Courts (No. 3) Act, 1986. The relationship between the provisions of that Act and the making of a complaint pursuant to Section 10 of the Petty Sessions (Ireland) Act, 1851 have been fully discussed in a number of cases including in particular the cases of D.P.P. v Nolan and D.P.P. v. Roche and Kelly reported at [1990] 2 I.R. 526. In his judgment in D.P.P. v Nolan the learned Hamilton P. (as he then was) held that the application for the issue of a summons under the 1986 Act did not constitute the making of a complaint in accordance with Section 10 of the 1851 Act. The complaint was communicated to the District Judge as soon as the matter was actually brought before the Court. The Supreme Court upheld the view of Hamilton P. In his judgment on behalf of the Court the learned Finlay C.J. laid down a number of rules with regard to the issue of summonses and the bringing of complaints before the District Court. These appear at pages 546 to 547 of the report. The fourth of these rules states as follows:

"A District Justice before whom a person has been summonsed pursuant to provisions of the Act of 1986 is entitled, according to his or her discretion, upon it being satisfactorily established that such person was duly served with the summons but has not appeared, either to proceed to hear and determine the charge contained in the summons in the absence of the accused or, if he or she shall so decide, to adjourn the hearing of the summons to a later date and to secure the attendance of the accused by warrant or otherwise" .

13. It is clear that if the old procedure under the 1851 Act was used rather than the 1986 Act procedure this rule would apply a fortiori. In the present case therefore the learned District Judge had full jurisdiction to issue the warrant and in addition once the warrant had been executed and the Applicant appeared before the Court on 27th July, 1993 where the complaints were laid and he pleaded not guilty to the various charges, the District Judge had full jurisdiction to deal with the matter.

14. I conclude therefore that the first ground for an Order for Prohibition fails.

15. I now turn to the ground of inexcusable or unconscionable delay. In putting forward this ground Mr. Giblin referred me to an unreported judgment of Mr. Justice Barron delivered on 4th May, 1987 in The State (Flynn) v. Governor of Mountjoy Prison and The State (McCormick) v. Governor of Mountjoy Prison . In these cases the warrants were in fact warrants for committal to prison subsequent upon conviction and there was a considerable delay in the execution of the warrants. In his judgment Mr. Justice Barron was critical of the methods used by the Gardai in executing warrants on the grounds that the execution of the warrants in those cases did not appear to be a matter of any urgency and little or no effort was made to trace the whereabouts of the convicted persons. At page 4 of his judgment he states:

"In my view it is implicit that the warrant should be issued there and then when the sentence is imposed and where the sentence is imposed on appeal, as soon as is reasonably possible. Likewise, once it is has issued, it must be executed as soon as is reasonably possible. If not, then a Defendant sentenced to a term of imprisonment may find himself or herself serving such sentence at a future date merely through a failure of administrative processes".

16. However, the learned Barron J. is dealing with the situation where the person has already been convicted and it is essential that the prison sentence should be served at the proper time. This is very different from the facts in the present case which are, I consider more comparable to those in the case of Shane Dunne v. D.P.P. which is dealt with in an unreported judgment of 6th June, 1996 by Carney J. In that case the learned Judge was also somewhat critical of the normal method of executing warrants by the Garda Siochana. At page 5 of his judgment he stated:

"I have on more than one occasion formed the view that the Guards do not have a full appreciation of the mandatory duty thereunder to execute warrants and a full appreciation that warrants are commands to arrest and not merely authorities to arrest. It has seemed to me from time to time that the Guards have sat on a warrant and waited for the wanted person to gratuitously fall into their laps by, for example, being arrested in relation to a further crime rather than taking any active steps to find him".

17. At page 8 the learned Judge goes on to say:

"Members of an Garda Siochana to whom a warrant is issued for execution must be accountable to the Court which issued the warrant for its prompt execution and in default of a prisoner being expeditiously produced, have an explanation for his non production and furnish an explanation of what steps were taken to bring about his apprehension. Having said that I accept Ms. Egan's submission that the issuing of a warrant need not trigger a national man hunt".

18. In the circumstances of that particular case the learned Judge accepted that the Gardai had made reasonable efforts to locate the Accused and he had regard to the fact that members of the Accused's family made untrue statements to the Gardai with regard to the Accused's whereabouts. He concluded that he was entitled to draw the inference that the Accused "chose to lie low" and dismissed his application for Judicial Review.

19. In the instant case there are a number of factors which I must take into account when considering the delay that occurred between the first issue of the warrant in June 1990 and its execution in July 1993. Firstly the Applicant himself gives no explanation whatsoever as to why he failed to respond to the summons in the first place and attend the District Court on 28th June, 1990. Secondly it is clear from the various Garda Affidavits that in fact efforts were made on quite frequent occasions and on a reasonably regular basis throughout the period to make contact with the Applicant at his home address in Castlefin. I must also bear in mind that the Applicant was by profession a lorry driver which meant that he was moving from place to place and it appears that this was not on a particularly regular basis. Thirdly it is not seriously contested that at least during a large part of the relevant time the Applicant was residing out of the jurisdiction in Strabane and therefore out of the reach of the execution of the warrant. Bearing in mind all these matters, which are very much stronger than the circumstances set out in the judgment of the learned Carney J. I consider that I have no difficulty in drawing the inference that the Applicant was quite deliberately "lying low" and avoiding the execution of the warrant. He therefore cannot be heard to complain of the delay of the Gardai in its execution.

20. With regard to the delay which has occurred since July 1993 I have already drawn attention to the fact that the vast majority of this delay resulted from the various applications made by the Applicant through his Solicitor to the District Court for adjournments or for special hearing of legal points. Again, while of course the Applicant had a perfect right to make what legal points he wished and to seek adjournments from time to time, he cannot in my view use delay which has been caused in this way to ground an application for an Order of Prohibition. While the Applicant, through his Solicitor, avers that the trial of these offences after so long a delay will violate his constitutional rights under Article 38 of the Constitution no specific evidence is given as to the practical effects which the delay will have on the District Court trial. For instance it is not suggested that essential witnesses will be unavailable through increasing age, death, emigration or other cause. While it is of course extremely undesirable that any trial of an offence should be so long delayed, it does not appear to me that there is any specific evidence before me to indicate that the Applicant would not be able to receive a fair trial in the District Court at this point. Since

21. District Judge McMenamin had not heard any of the actual evidence in the case or dealt with it in any substantive manner, his retirement and subsequent unfortunate and sudden death would not affect the actual trial in any way.

22. Finally Mr. McDonagh on behalf of the Director of Public Prosecutions submits that I should take into account the long delay in the issuing of the Applicant's proceedings for Judicial Review and that the Court should use its discretion to refuse the relief sought on the grounds of this delay. Order 84 Rule 21(1) of the Rules of the Superior Courts 1986 states:

"An application for leave to apply for Judicial Review shall be made promptly and in any event within three months from the date when grounds for the application first arose,...... unless the Court considers that there is good reason for extending the period within which the application shall be made".

23. In this case the application for Judicial Review, rather than being made promptly, appears to have been made more or less as a last resort after quite a number of legal avenues had been tried and had failed. No explanation has been offered either by the Applicant or by his Solicitor as to why the initial application for leave to issue Judicial Review proceedings was so long delayed. Even after leave had been obtained there were considerable delays in the service of the proceedings. The explanation of these delays offered by Mr. O'Gorman in his Affidavit of 26th April, 1996 does not really offer an adequate explanation for the lengthy delay between the making of the Supreme Court Order on 31st July, 1995 and the service of the proceedings on the Director of Public Prosecutions

almost a year later. Given these delays and the entire circumstances of the case as I have found it I do not consider that I should exercise my discretion in favour of extending the time within which Judicial Review may be sought and granted.

24. For all the reasons set out above I refuse the relief sought.