High Court of Ireland Decisions

1. On the 3rd November, 1997 James Masterson, an employee of Roclad Limited (“R”) was killed in the course of his employment by R while working on a development being carried out by Zoe Developments Limited (“Z”) at Charlotte Quay, Dublin. Arising out of this the National Authority for Occupational Safety and Health (“the Authority”) applied for some 14 summonses against Z, R and three named persons employees of Z which summonses were issued on the 7th July, 2000. The offences alleged were under various sections of the Safety Health and Welfare at Work Act, 1989. The summonses were returnable for the 22nd February, 1999. The Chief State Solicitor was instructed to act on behalf of the Authority and retained Counsel and at all times upon which the matter came on before the District Court the Authority was represented by the Chief State Solicitor. These proceedings are hereinafter referred to as “the Authority proceedings”.

2. On the 26th February, 1999 the Director of Public Prosecutions directed that a summons be applied for against each of them Z and R arising out of the same event and one summons against each of them, Z and R. was issued on the 18th June, 1999. These proceedings are hereinafter referred to as “the DPP proceedings”. Each of the summonses issued in the DPP proceedings alleged offences contrary to Section 48(1) of the Safety Health and Welfare at Work Act, 1989. It appears that the charges in the DPP proceedings corresponded in each case with one summons in the Authority proceedings against that Accused. The Chief State Solicitor acted on behalf of the DPP. The summonses in the DPP proceedings were never served. This circumstance was not discovered until the 22nd February, 2000. The Authority proceedings had come on before the District Court on the 14th May, 1999, 25th June, 1999, 27th July, 1999, 27th September, 1999, 19th October, 1999, 7th December, 1999, 21st January, 2000 and 22nd February, 2000 and on each occasion the Chief State Solicitor assumed that before the Court were not alone the Authority proceedings but also the DPP proceedings. On the 22nd February, 2000 the summonses in the Authority proceedings against the three individual accuseds were struck out. When the summonses against Z and R were called the Chief State Solicitor erroneously believed that the summonses in question related to the DPP proceedings but that the Authority had been named as Prosecutor in error and sought to have the matters dealt with on indictment. Counsel for Z and R relied upon the decision in TDI Metro Limited and Patrick Hallagan Applicants and District Judge Sean Delap Respondent and Fingal County Council Notice Party delivered by Miss Justice McGuinness on the 9th June, 1999 (since overturned an appeal) as authority for the proposition that the Authority could only prosecute summary proceedings. At this point it was discovered by the Chief State Solicitor that the DPP proceedings had not been served. Thereafter the Respondent considered the summonses in the Authority proceedings and co-related two of the same to the Statement of Charges in the book of evidence which had been served in the DPP proceedings and it would appear, accepted the same as relating to or at least being sufficient to enable him to proceed with the preliminary examination in respect of the Authority proceedings. Having concluded his preliminary examination he made Orders in respect of each of the summonses in the Authority proceedings discharging Z and R in respect of the charges contained in each of the summonses issued against them.

3. In these proceedings the Director of Public Prosecutions seeks an Order of Certiorari quashing the said discharges. The grounds set out in the statement required to ground application for Judicial Review all proceed on the basis that the Orders made by the Respondent related to the DPP proceedings rather than the Authority proceedings. However, I am satisfied that the orders were in fact made in the Authority proceedings and indeed Z and R opposed the granting of relief herein on that basis. The Orders of discharge in their terms refer to the Authority proceedings. A separate Order was made in respect of each of the summonses against Z and R in the Authority proceedings. The Respondent did not purport to and did not make any Order in the DPP proceedings. In these circumstances I have no jurisdiction to grant the relief sought upon the grounds relied upon by the Applicant and in respect of which leave was granted. Had the grounds reflected the course of the proceedings which I have set out above I would have no difficulty in holding that a preliminary examination conducted in the Authority’s proceedings relying on a book of evidence before the Court in respect of the DPP proceedings the summonses in respect of which had not in fact been served, did not comply with the requirements of the Criminal Procedure Act, 1967 Part II thereof. The Applicant’s misapprehension is perfectly understandable in the light of the general confusion which reigned throughout the proceedings and particularly on the 22nd February, 2000. However, no application has been made to me to amend the grounds. The grounds relied upon, I am satisfied, misapprehend the basis upon which the Respondent purported to deal with the confused circumstances which faced him. Accordingly I refuse the Applicant the relief sought herein.