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Cite as: [2005] IEHC 132, [2005] 3 IR 378

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[2005] IEHC 132

THE HIGH COURT

Record Number: 2005 No. 199 SS

Between:

Director of Public Prosecutions

Prosecutor

And

Richard McDermott and Sheila Riordan

Defendants

Judgment of Mr Justice Michael Peart delivered on the 12^th day of May 2005:

This consultative case stated arises out of the prosecution of certain charges against the two named defendants relating to the sale of intoxicating liquor to two minors, contrary to s. 31 of the Intoxicating Liquor Act, 1988.

The question arising concerns the method by which the prosecution may prove the date of birth of the minor person alleged to have been so supplied, for the purpose of proving its case against the defendants.

At the hearing in the District Court, a Garda Inspector gave evidence of carrying out an inspection at the premises in question on the 20^th April 2002. He stated that he had spoken to one of the minors who gave his name and gave his date of birth as 22^nd July 1985, and that the other minor gave his name and gave his date of birth as 21^st June 1984. It appears that both minors were consuming alcohol. The Inspector then stated that he had attended at the Registry of Births, Marriages and Deaths in order to obtain a birth certificate in respect of each minor, and in Court he sought to produce these as evidence of the age of the minors concerned. Counsel for the defendants made objection to this as a method of proving the ages of the minors, submitting that there was no proof that the certificates were certificates of birth relating to the two minors.

It appears that the mother of neither minor was in Court, but that the father of one of the minors was present in Court. He gave evidence that one of the minors was his son. He also confirmed his son's date of birth, and stated that the birth certificate produced to the Court as being that of his son was that of his son. However, when questioned by Counsel for the defendants he conformed that he had not been present at the birth of his son. Counsel submitted that the only person who could prove the birth certificate was the mother of the boy, and she was not in court.

In respect of the other minor, he gave evidence to the Court that his date of birth was the 21^st June 1985 and stated that the birth certificate produced to the court was his birth certificate. However, neither of his parents was present in Court.

The President of the District Court has asked that three questions be answered by this Honourable Court:

1. Can a father who was not present at the birth of his child give evidence of the age of his child and prove that the birth certificate is valid and proves the truth of the age of the person named therein?

2. Must a mother give evidence of the birth to prove age and prove that a birth certificate is valid?

3. Does a birth certificate of itself prove the age of the person named therein?

It appears that in the District Court, the Prosecution relied upon s. 5(5) of the Criminal Evidence Act, 1992 which provides:

"(5) (a) a document which purports to be a birth certificate issued in pursuance of the Births and Deaths Registration Acts, 1863 and 1987, and

(b) and a person is named therein as father or mother of the person to whose birth the certificate relates,

shall be admissible in any criminal proceedings as evidence of the relationship indicated therein." (my emphasis)

Quite understandably the learned President did not agree that this provision assisted the prosecution, since it relates solely and specifically to evidence only of relationship, and does not include the date of birth.

The Prosecutor on this Case Stated has referred the Court to the provisions of Part IV of the Schedule to the Social Welfare (Miscellaneous Provisions) Act, 2002 which is an amendment by insertion of ss. 30A, 30B and 30C, after s.30 of the Registration of Births and Deaths (Ireland) Act, 1863.

The inserted section 30A, subsections (2) and (3) provide:

"(2) Every document purporting to be a copy of or xtract from an entry in the registers kept under this section shall be received in evidence in any proceedings and shall, until the contrary is shown, be deemed to be a true copy of or extract from the entry, and shall be evidence of the terms of the entry.

(3) Evidence of an entry in a register kept under this section may be given by production of a copy of the entry certified by an tArd-Chlaraitheoir, an officer duly authorised to act in that behalf or a registrar and it shall not be necessary to produce the register itself."

This provision was brought into effect by S.I. 269 of 2003 on the 1^st July 2003, which is after the date to which the charges relate (i.e. 20^th April 2002), but prior to the date on which the matter came before the learned President of the District Court for hearing.

Ms. Dorothy Collins BL on behalf of the defendants submits that the inserted sections into the 1863 cannot have retrospective effect and that therefore proof as to the dates of birth of the minors in the case cannot be given under the terms of the amendments to s.30 thereof. Mr Padraig O'Higgins BL on behalf of the prosecution relies on the judgment of Blayney J. in Toss Limited v. The District Court Justice presiding in Court No. 1, Morgan Place, in the City of Dublin, The DPP and the Attorney General, unreported, High Court, 24^th May 1987 when he submits that since the effect of the inserted provisions is merely procedural, the amendment made can act retrospectively.

This is the main point at issue between the parties at this stage, since the terms of the amendment to the 1963 Act as outlined above appear to leave no room for doubt about how "in any proceedings" a date of birth may be proved by the production of a copy of a what is commonly known as a birth certificate, which is a copy of an entry in the register of births. In order to resolve the question of the retrospective application of the amendment, it is necessary to set out the submissions of the parties in relation to the said judgment in Toss to which the Court has been referred.

On behalf of the defendants, Ms. Collins has submitted that the amendment to the 1863 Act cannot be operated retrospectively, and can be availed of only in respect of offences alleged to have occurred prior to the date on which the amendments were introduced. It is also submitted that since the evidence is sought to be introduced as a necessary part of the proofs in the criminal charges brought against the defendants, strict proof must be required, particularly given the serious penalties which each defendant could face if found guilty, and that in these circumstances the 'best evidence' rule should apply, and that in the circumstances of this case, the best evidence would be the evidence of the mother of each minor, and that no attempt was made to secure that evidence, and furthermore there is no evidence that either mother concerned could not be brought to court on foot of a subpoena to attend.

Mr O'Higgins on behalf of the prosecutor relies on the amending section to which I have referred and has relied on the judgment of Blayney J. in Toss. At page 10 of the unreported judgment, the learned judge poses the question as to whether statutes which deal with procedure only are retrospective in effect. He concluded that they were, and in so deciding he referred to the judgment of Lord Alverstone C.J. in Rex v. Chandra Dharma [1905] 2 KB 335 where at p.338 it is stated:

"The rule is clearly established that, apart from any special circumstances appearing on the face of the statute in question, statutes which make alterations in procedure are retrospective. It has been held that a statute shortening the time within which proceedings can be taken is retrospective, and it seems to me that it is impossible to give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective."

In Toss the case concerned whether new procedures for issuing a summons in the District Court could be availed of in respect of a complaint made to the District Court Clerk prior to the introduction of the new procedures by s. 1 of the Courts (No.3) Act, 1986. Mr Justice Blayney concluded as follows:

"In my opinion there are no special circumstances appearing on the face of the 1986 Act so as to remove that Act from the general rule applicable to statutes relating to procedure, and that accordingly that rule applies with the result that the 1986 Act is retrospective in its effect and accordingly the Summons issued on the 25^th March 1987 pursuant to Section 1 of the Act is a perfectly valid summons."

I am of the view that the same principle can be applied to the amendment to the evidential rule involved in the present case. In case there is a distinction between a change in a rule of evidence in the sense of how a particular document may be proved in Court proceedings, a rule of procedure by which proceedings may be instituted, it is worth also referring to Bennion on Statutory Interpretation, Butterworths Lexis Nexis, 2002 ed. at page 265 et seq.

I refer to some matters set forth. Firstly on page 265 it states the general presumption rule that "unless the contrary intention appears, an enactment is presumed not to be intended to have a retrospective effect." However, at page 269, the learned author proceed to deal with the retrospective effect of "procedural provisions". He states:

"Because a change made by the legislator in procedural provisions is expected to be for the general benefit of of litigants and others, it is presumed that it applies to pending as well as future proceedings. This presumption does not operate where, on the facts of the instant case, to apply it would contravene the principle that persons should not be penalised under a doubtful enactment."

On page 271 the learned author deals specifically with enactments dealing with "evidence". He states as follows:

"Enactments relating to evidence are equated to procedural enactments. In the debates on the Bill for the Civil Evidence Act 1995 Lord Hailsham of St Marylebone said: 'purely procedural and evidential changes in the law should apply as from the moment when the law is enacted to proceedings which are currently pending before the courts."

This view was referred to by Phillips L.J in Bairstow v. Queens Moat Boathouses [1998] 1 All ER 343 at p. 351 where Lord Phillips, referring to the words of Lord Hailsham, states as follows:

"This case demonstrates that these were wise words. The prospect of two different rules as to the admissibility of hearsay applying simultaneously in English law, dependent on the date of commencement of proceedings, is not attractive. No more attractive is the prospect of the simultaneous applicability of alternative codes of procedure."

These comments seem to me apt in support of my conclusion that the amendments to the 1863 Act, by the insertion of ss. 30A, 30B and 30C and which came into effect on 1^st July 2003 can be availed of for the purpose of allowing the ages of the minors to be proved in these and any pending or current proceedings by production to the Court of a copy of a birth certificate, provided that the statutory provisions are complied with.

It follows that it is unnecessary to answer the first and second questions posed by the learned President of the District Court in his Consultative Case Stated, and to answer the third question in the affirmative, but by adding that the date of birth of a minor in proceedings may be proven by the production to the Court of a duly certified copy of an entry in the register of births kept under s. 30A of the Act of 1863 as amended,(commonly referred to as a birth certificate) in respect of such minor, which document shall, until the contrary is shown, be deemed to be evidence of the terms of the entry of birth in the register as provided in s.30 as amended.

Approved: Peart J.