1. In
these Judicial Review proceedings the Applicant who is the Director of Public
Prosecutions seeks an Order of Certiorari quashing a return for trial made on
the 19 February, 1998 pursuant to Section 8(1) of the Criminal Procedure Act,
1967 whereby the second named Respondent, Michael Deighan, was returned for
trial before the Dublin Circuit Court on two charges alleging that he did on
the 27 May, 1996 at the Four Courts Dublin in the Dublin Metropolitan District
(a) commit an offence contrary to Section 7 of the Offences Against the State
Act, 1939, as amended by Section 2(3) of the Criminal Law Act, 1976, and, (b)
commit a criminal contempt of Court. The Applicant also seeks an Order
remitting the said matters to the first named Respondent in order that they may
be proceeded with in accordance with law.
The
grounds upon which the Director of Public Prosecutions seeks these Orders may
be briefly set out as follows:-
(1)
The Order of Return for Trial was made in excess of and without jurisdiction in
that the judge of the District Court had no jurisdiction to return the Accused
to the Dublin Circuit Court on the charge that the second named Respondent
committed an offence contrary to Section 7 of the Offences Against the State
Act, 1939, since Section 25(2) of the Courts (Supplemental Provisions) Act,
1961 reserves to the Central Criminal Court jurisdiction over such offences.
(2)
There is an error on the face of the record in that the said Order of Return
for Trial purports to return the Accused upon the said charge to the Circuit
Criminal Court for Dublin City and County.
The
factual background is set out in two affidavits sworn by Patrick Geraghty, a
Solicitor in the office of the Chief State Solicitor. The offences with which
the second named Respondent has been charged are set out on a Bridewell Garda
Station charge sheet as follows:
"For
that you the said accused, on May 27 1996, at the Four Courts, Dublin, in the
Dublin Metropolitan District, did attempt to obstruct by intimidation the
performance of one Liam Fenlon, an employee of the State, of his duties
contrary to Section 7 of the Offences Against the State Act, 1939, as amended
by Section 2(3) of the Criminal Law Act, 1976.
For
that you the said accused, on May 27 1996, at the Four Courts, Dublin, in the
Dublin Metropolitan District, did commit criminal contempt of Court in that you
uttered a threat to one Liam Fenlon, an employee of the State and as such
involved in the organising of a response to applications relating to bail that
are brought before the High Court, that he would be subject to violence if a
certain application for bail that was due to be heard by that Court two days
later did not result in the granting of bail, contrary to common law."
Mr
Geraghty exhibits the Book of Evidence with his affidavit but its contents is
not particularly relevant to the issues raised in the present proceedings.
It
appears that depositions had been taken on a previous occasion in respect of
the charges against the second named Respondent and on the 19 February, 1998
the first named Respondent made an Order pursuant to Section 8(1) of the
Criminal Procedure Act, 1967 to the effect that he found that there was a
sufficient case to put the second named Respondent on trial for the offences
numbered 1 and 2 in the statement of charges. It also appears that it had
previously been concluded by the Director of Public Prosecutions that an
application to transfer the trial to the Special Criminal Court was not
warranted and the Director had made a direction pursuant to Section 45(2) of
the Offences Against the State Act, 1939 in respect of the charge under Section
7. However, it appears that Mr Geraghty, who was dealing with the matter in the
District Court, did not advert to the fact that under Section 25(2) of the
Courts (Supplemental Provisions) Act, 1961 offences under Section 7 of the
Offences Against the State Act, 1939 must be dealt with in the Central Criminal
Court rather than in the Circuit Criminal Court. Mr Geraghty was directing his
mind, it appears, to the fact that the matter was not to go to the Special
Criminal Court.
Apparently
the second named Respondent, Mr Deighan, raised a number of matters with the
learned judge of the District Court in regard to jurisdiction as well as in
regard to various other matters. Mr Deighan asserts that he did in fact raise
the matter of Section 7 charges having to be dealt with in the Central Criminal
Court and on the balance of probabilities I accept that he did. It is clear
from Mr Geraghty's supplementary affidavit that the first named Respondent,
Judge Hamill, was concerned as to which Court should try Mr Deighan on these
charges and he adjourned the matter briefly for Mr Geraghty to consider the
matter. However, Mr Geraghty still submitted that the charges should be heard
before the Dublin Circuit Criminal Court and Judge Hamill made his Order of
return for trial accordingly.
The
charges came on for trial before the Dublin Circuit Criminal Court on the 28
October, 1998 before His Honour Judge Cyril Kelly (as he then was). An
indictment was laid against the second named Respondent containing the charges
upon which he had been returned for trial. As a preliminary matter the second
named Respondent raised the jurisdiction of the Circuit Criminal Court to deal
with the offence contrary to Section 7 of the Offences Against the State Act,
1939, as amended, with which he was charged. Counsel for the Director of Public
Prosecutions Ms Ni Raifeartaigh, submitted that the matter of jurisdiction was
a matter for Judicial Review rather than for the learned Circuit Court judge.
Judge
Kelly held that the return for trial was valid on its face and accepted Ms Ni
Raifeartaigh's submission. He held that the jurisdiction was a matter for the
High Court. A jury was empanelled and the case was sent for trial to His Honour
Judge Dominic Lynch.
As
a preliminary point the second named Respondent again raised the matter of
jurisdiction and referred the learned Circuit Court judge to Section 25(2) of
the Courts (Supplemental Provisions) Act, 1961. (The transcripts of the
proceedings in the Circuit Court before Judge Kelly and Judge Lynch were handed
in to this Court.) The second named Respondent read out a written submission in
regard to the jurisdiction of the Court and mentioned case law to support his
position. Counsel for the Director of Public Prosecutions opposed his
application. The learned Circuit Court judge then adjourned the matter until 2
o'clock that afternoon to enable the second named Respondent to obtain legal
representation.
When
the matter came on again before His Honour Judge Lynch that afternoon Counsel
for the Director of Public Prosecutions informed the Court that she had taken
specific instructions and that it was admitted that there was merit in the
jurisdictional point made by Mr Deighan. In the circumstances she sought an
adjournment. Judge Lynch then discharged the jury and adjourned the matter for
mention to the 6 November, 1998.
The
Applicant sought leave to issue the present Judicial Review proceedings on the
21 December, 1998 and was granted leave on that day by this Court (Geoghegan
J). In accordance with the Order of Geoghegan J and in conformity with Order 84
of the Rules of the Superior Courts the Applicant then issued a Notice of
Motion returnable for the 1 February, 1999. The second named Respondent
appeared on the return date of the Notice of Motion but contended that, while
he accepted that he had been served with the other papers in connection with
the Judicial Review, he had not been served with the relevant Notice of Motion
and had merely noticed the case listed in the legal diary. The matter was
listed before Mr Justice Quirke and having heard Counsel for the Applicant and
the second named Respondent in person the learned Quirke J made an Order
extending the time of service of the Notice of Motion for seven days from the 1
February, 1999 and allowed the second named Respondent four weeks within which
to serve a Statement of Opposition. The proceedings were again listed before
Kelly J on 26 April, 1999 when inter alia the learned judge ordered the second
named Respondent to serve and file a Statement of Opposition by close of
business on Friday 7 May, 1999. The second named Respondent filed a Statement
of Opposition on 5 May, 1999.
When
the matter came on for hearing before me I was informed that the matter had
been listed for hearing before Kelly J on the 30 June and the 9 July, 1999 and
had been part heard by him. However, before the matter was concluded the second
named Respondent raised an objection to the matter being heard by Kelly J and
the learned Kelly J discharged himself from hearing the matter further. The
matter was accordingly listed before me on the 14 July, 1999. Throughout these
Judicial Review proceedings the second named Respondent has been unrepresented
and has appeared as a personal litigant.
Section
25 of the Courts (Supplemental Provisions) Act, 1961 provides as follows:-
"25(1)
Subject to subsection (2) of this section, the Circuit Court shall have and may
exercise every jurisdiction as respects indictable offences for the time being
vested in the Central Criminal Court and every person lawfully brought before
the Circuit Court in exercise of such jurisdiction may be indicted before and
tried and, if convicted, sentenced by the Circuit Court accordingly
(2)
The jurisdiction conferred on the Circuit Court by subsection (1) of this
section shall not extend to treason, an offence under Section 2 or 3 of the
Treason Act, 1939, an offence under Section 6, 7 or 8 of the Offences Against
the State Act, 1939, murder, attempt to murder, conspiracy to murder, or
piracy, including an offence by an accessory before or after the fact.
(3)
The jurisdiction vested in the Circuit Court by subsection (1) of this section
shall be exercised by the judge of the Circuit in which the offence charged has
been committed or in which the accused person has been arrested or resides."
The
remainder of the section is not relevant to the present proceedings. Section 2
5(2) has subsequently been extended to cover offences of genocide and rape
offences, which also must be tried in the Central Criminal Court.
It
is clear from this section, as indeed was submitted by the second named
Respondent from the beginning, that the offence with which he was charged under
Section 7 of the Offences Against the State Act, 1939 fell to be tried in the
Central Criminal Court.
The
Circuit Criminal Court had not jurisdiction to try this offence. Prima facie,
therefore, the Order of Certiorari sought by the Applicant must be granted.
In
his Statement of Opposition and in the course of these submissions to me,
however, the second named Respondent vehemently opposed the granting of the
reliefs sought by the Applicant.
The
first, and indeed the main, ground on which the second named Respondent opposed
the granting of the Order of Certiorari is that he was not served with the
requisite Notice of Motion within the 21 days allowed by Geoghegan J, in his
Order of 21 December, 1998, and that, once this 21 day period had expired, the
Court had no power to extend the time of service. Thus the Order of Quirke J
made on 1 February, 1999 extending the time for service for a further period of
seven days was a nullity. Mr Deighan asserts that in making this Order Quirke J
was offending against Article 34.5 of the Constitution. When the matter came on
before Kelly J on 26 April, 1999 it seems that the learned judge rejected Mr
Deighan's legal submissions in regard to notice and extension of time. The
second named Respondent in his Statement of Opposition alleges that Kelly J
consciously and deliberately offended his constitutional rights.
In
his submission that the learned Quirke J had no power to extend time for
service of the originating Notice of Motion the second named Respondent relies
on two cases. The first is that of The State (Fitzsimons) v Kearney [1981] IR
406. In that case the prosecutor obtained a conditional Order of Certiorari but
failed to serve it on the Respondent within the 10 days prescribed by Order 84
Rule 45 of the then Rules of the Superior Courts. After the expiry of that
period the prosecutor applied to the High Court for an Order enlarging the
period for service of the Order. It was held by Finlay P as he then was, in
dismissing the application, that a conditional Order stands discharged pursuant
to Order 84 Rule 45 unless it is duly served (a) within the period of 10 days
prescribed by that rule or (b) within such further period of time as may have
been allowed by the High Court either when making that Order or before the
expiry of the prescribed period of 10 days. The learned President also held
that where a conditional Order of Certiorari stands discharged pursuant to
Order 84 Rule 45 the provisions of Order 108 Rule 7 (which confers on the High
Court a general power to enlarge any period of time which has been prescribed
by the rules for doing any act and states that such power may be exercised
although the application for the enlargement is made after the expiry of the
relevant period) cannot be invoked to extend the period of time for service of
that Order. At page 411 of the report the learned President stated
".
. . I am satisfied that the true position is that once a conditional Order has
not been served within the time provided by the rule, or within any further
time fixed by the Court either at the time when it makes the conditional Order
or before it has been automatically discharged then that Order stands
discharged under Order 84 Rule 45 and there is, therefore, no time limit in an
existing or substantive proceeding capable of being extended under the
provisions of Order 108 Rule 7. I am satisfied that I have not now got
jurisdiction to extend the time for the service of the conditional Order
granted by the High Court on the 28 July, 1978."
However,
earlier in the Judgment the learned President pointed out that a discharge of a
conditional Order of this kind does not cause irretrievable mischief. At page
410 he states:-
"A
prosecutor who obtains a conditional Order and fails to serve it within the
time limited is not barred, by reason of the discharge of that Order, from
making afresh ex parte application for a conditional Order. If in the
intervening time a period of six calendar months provided in Order 84, Rule 10,
has elapsed after the date of an Order made by the District Court or the
Circuit Court, there is still a clear discretion in the Court to grant in an
appropriate case the new or fresh application for a conditional Order,
notwithstanding that lapse of time."
The
second case referred to by Mr Deighan is that of The State (Flynn &
O'Flaherty Limited) v The Lord Mayor Aldermen and Burgesses of the City of
Dublin [1983] ILRM 125. In his Judgment in that case the learned Murphy J
followed the Fitzsimons v Kearney case and held that a conditional Order of
Certiorari is automatically discharged if it is not served within the time
specified by the rule, or within any time fixed by the Court at the time of its
making or by way of further Order before it had been automatically discharged
providing that there are no existing or substantive proceedings capable of
being extended.
The
second named Respondent argues that neither I nor any other judge of the High
Court, including Quirke J and Kelly J, has the power to over-rule these
Judgments given in the High Court by Finlay P and Murphy J. They are absolutely
binding.
Counsel
for the Applicant, Mr McDonagh, leaving aside any argument as to whether the
Judgment of another High Court judge, however respected, is in all cases
binding on the High Court, rests his submission on the fact that the two
Judgments to which the second named Respondent refers were given in the context
of the former Rules of the Superior Courts and are not relevant to the 1986
Rules. Under the 1986 Rules of the Superior Courts Order 84 and the entire
procedure for dealing with Judicial Review applications has been fundamentally
changed. Mr McDonagh submits that under the former rules a conditional Order of
Certiorari was made by the High Court in response to an ex parte application.
The former Order 84 Rule 45 provided:
"Every
conditional Order shall be filed in the Central Office and served together with
a copy of the grounding affidavit (if any) within 10 days from the day the same
shall be pronounced unless further time be allowed by the Court: and in default
thereof such conditional Order shall stand discharged"
Once
the Order was discharged there were no proceedings in being and therefore time
for service could not be extended. However, as was pointed out by the learned
Finlay P, this did not prevent the Applicant from seeking a new conditional
Order.
The
position under the 1986 Rules was entirely different. Under the present Order
84 the Applicant seeks leave under Rule 20 to issue his Judicial Review
proceedings. Under Order 84 Rule 22(1) "An application for Judicial Review
shall be made by originating Notice of Motion unless the Court directs that it
should be made by Plenary Summons". Once the Notice of Motion or the Plenary
Summons has been issued there are proceedings in being.
Under
Rule 22(3) and (4) time limits are set for the service of the Noticed of Motion
and for the filing of a Statement of Opposition. Mr McDonagh submitted that
these were of the same nature as time limits set for the filing and service of
documents in other types of proceedings under the rules and Order 122 Rule 7
(which is the equivalent of the old Order 108 Rule 7) equally applies to them.
Order
122 Rule 7 provides:
"The
Court shall have power to enlarge or abridge the time appointed by these rules,
or fixed by any Order enlarging time, by doing any act or taking any
proceeding, upon such terms (if any) as the Court may direct, and any such
enlargement may be ordered although the application for the same is not made
until after the expiration of the time appointed or allowed"
Thus,
Mr McDonagh argued, the learned Quirke J had power to make the Order which he
did and the subsequent service of the Notice of Motion on Mr Deighan was proper
service.
Mr
McDonagh also drew attention to the provisions of Order 84 Rule 22(3) in
particular as referring to Rule 20(7). Under Rule 20(7), where leave to apply
for Judicial Review by way of Certiorari is granted and the Court so directs,
the grant shall operate as a stay of the proceedings to which the application
relates until the determination of the Judicial Review application or until the
Court otherwise orders. Under Rule 22(3) if the Notice of Motion or summons as
the case may be is not served within 14 days after the grant of leave or within
such other period as the Court may direct, the stay of proceedings referred to
in Rule 20(7) shall lapse. Mr McDonagh points out that it is only the stay of
proceedings that is to Lapse and not the Judicial Review proceedings
themselves. This is, he submits, in stark contrast to the position where a
conditional Order is specifically discharged.
It
appears to me that Mr McDonagh is entirely correct in his submissions. The
present proceedings are governed by Order 84 of the Rules of the Superior
Courts 1986. The Judgments to which the second named Respondent refers deal
with the discharge of a conditional Order which does not arise under the
present procedure and they therefore do not apply to the situation in the
instant case. The second named Respondent was therefore correctly served with
the Judicial Review proceedings following the Order of Quirke J.
The
second named Respondent, in his Statement of Opposition also draws attention to
the general delay in the bringing of Judicial Review proceedings by the
Applicant. The impugned Order of the first named Respondent returning the
Applicant for trial was made on the 19 February, 1998; the ex parte application
for leave to issue Judicial Review proceedings was not made until 21 December,
1998. This, the second named Respondent submits, is by a long way outside the
time limit of six months set out in Order 84 Rule 21(1).
Order
84 Rule 21(1) provides:
"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, or six months where the relief sought is Certiorari, unless the
Court considers that there is good reason for extending the period within which
the application shall be made."
Counsel
for the Applicant admits that at the time of the ex parte application on the 21
December, 1998 no application was made for an extension of time under Rule
21(1), and he now asks this Court for an extension of time. He points out that
the Applicant did not become aware of the need to apply for an Order of
Certiorari until the second named Respondent came up for trial before the
Circuit Court on the 28 October, 1998 and that there was no undue delay between
that date and the date of the ex parte application on 21 December, 1998. He
admits that at the time of the making of the ex parte application he himself
was concentrating on the time that had elapsed between the 28 October, 1998 and
the 21 December, 1998 and did not advert to the fact that the need for
Certiorari arose on the making of the original Order in the District Court.
It
is open to this Court to extend the six month period within which application
for an Order of Certiorari should be made; this is a matter for the discretion
of the Court. In the present case I would accept that the Applicant was unaware
of the need to seek Judicial Review until the 28 October, 1998, although it
could well be said that that lack of awareness was due to his own inadvertence
and to his failure properly to consider the submissions made by Mr Deighan in
the District Court. However, on considering the offences as charged and the
Book of Evidence as exhibited in the affidavit of Mr Patrick Geraghty it does
not seem to me that the second named Respondent is prejudiced by the delay in
applying for Judicial Review and I would accept that there is good reason,
based on the fact that the effect of Section 25(2) of the Courts (Supplemental
Provisions) Act, 1961 did not become clear until 28 October, 1998, for this
Court to grant an extension of time in favour of the Applicant.
The
second named Respondent also complains that the affidavits of Patrick Geraghty,
Solicitor, do not "verify" the facts relied on in the Applicant's Statement as
required by Order 84 Rule 20(2)(b). I believe that this submission is based on
misunderstanding of the phraseology of the rule. The rule requires that the
facts relied on should be set out in an affidavit; it does not require that the
actual word "verify" must be used in the affidavit. The first paragraph of Mr
Geraghty's affidavit, which is in the standard form, avers the truth of what is
set out in the body of the affidavit and this is confirmed by the jurat. The
body of the affidavit sets out the same facts as are relied on in the Statement
of Grounds, and thus states their truth, or "verifies" them.
The
second named Respondent's Statement of Opposition, and his submission to this
Court, also contain allegations that both the first named Respondent and the
two Circuit Court judges, Judge Kelly and Judge Lynch, deliberately and
consciously offended the second named Respondent's fundamental legal and
constitutional rights. There is no basis whatsoever for this allegation. The
judges concerned may have erred in accepting that the Circuit Criminal Court
had jurisdiction to try the offence with which the second named Respondent was
charged pursuant to Section 7 of the Offences Against the State Act, 1939, but
there is no evidence whatsoever that they did so purposely or with
deliberation, or with the intention of damaging the right of the second named
Respondent to a fair trial. I completely reject this submission. A fortiori I
completely reject the similar accusations made by the second named Respondent
against Mr Justice Quirke and Mr Justice Kelly of this Court.
Accordingly,
I will grant the relief sought by the Applicant by making an Order of
Certiorari quashing the Order made by the first named Respondent on the 19
February, 1998 returning the second named Respondent for trial, and by making
an Order remitting the matter to the first named Respondent. In doing so I
stress that the Applicant should take all available steps to ensure that the
matter now proceeds with the least possible delay.