Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Director of Public Prosecutions -v- Douglas [2015] IEHC 461 (16 July 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H461.html
Cite as: [2015] IEHC 461
[New search] [Help]
Judgment
| ||||||||||||||||
Neutral Citation [2015] IEHC 461 THE HIGH COURT [2014 No 938 S.S.] IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 BETWEEN THE DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT AND
SEÁN DOUGLAS RESPONDENT JUDGMENT of Ms. Justice Baker delivered on the 16th day of July, 2015 1. This is a case stated by Judge Patricia McNamara, a judge of the District Court, wherein she asks the opinion of the High Court on two questions of law as follows:-
2) What are the criteria that should be applied in considering an application for costs in an application under s. 4(5) of the Criminal Justice (Forensic Evidence) Act 1990 (as amended)? 2. On 13th November, 2012 Seán Douglas, the respondent, was arrested on suspicion of murder, and detained under s. 50 of the Criminal Justice Act 2007. During his detention, and following an authorisation by a Superintendent a buccal swab was taken from him under s. 2 of the Criminal Justice (Forensic Evidence) Act 1990 (as amended) (the “Act of 1990”). The applicant was released from custody without charge, and has not since been charged with any relevant offence. 3. The legislation provides that if an accused is not prosecuted for an arrestable offence within twelve months of the sample being taken the sample must be destroyed, unless the court orders its retention for a further period of three years under s. 4(5) of the Act of 1990. Certain exceptions to the twelve month period are identified in s. 4(2), which are not relevant to this application. 4. The application for the retention of a sample is made under s. 4(5) which I quote in full:-
Source of the jurisdiction
8. The question in this case stated is a net one: whether in the absence of express salutatory authority in the statutory context in which substantive proceedings are heard, the District Court may make a costs order, or whether the jurisdiction is found in the Courts Acts and the Rules of the District Court made under the authority of those Acts. The authorities 10. The first in time is the judgment of Hedigan J. in Southern Hotel Sligo Ltd. v. Iarnród Éireann [2007] 3 IR 792. The question raised related to the power of the district court to award costs in proceedings under s. 108 of the Environmental Protection Agency Act 1992. Hedigan J. held that no jurisdiction lay, and looked in particular to, what he described as, the “very nature of the section 108 procedure as a ‘public watchdog’ charter”, and noted that the section did not provide for an order for costs, either in favour or against a claimant taking a “public watchdog” role. As he said:-
12. He found no jurisdictional basis in O. 51 r. 1 to award costs, because he considered that the District Court Rules cannot “create a power to award costs where there is no jurisdictional basis to do so.” 13. Counsel for the respondent points me to the fact that Hedigan J. in making this general statement did not avert to the express power vested in the Rules Committee by s. 34 of the Courts (Supplemental Provisions) Act 1961 to make provision for costs. He argues that the decision of Hedigan J. is to be confined to the unique type of application before him described by him as “watchdog” proceedings, and that the decision ought not to guide my judgment in what is a wholly different class of application. 14. O’Malley J. in HSE v. OA, [2013] IEHC 172, the second of the three recent authorities, also observed the absence of reference to the Courts Acts in the judgment of Hedigan J. and I now turn to consider her judgment. 15. O’Malley J. was determining a consultative case stated from the District Court which had heard an application for an emergency care order under the Child Care Act 1991, and part of her judgment concerned the power of the District Court to award costs to a respondent in proceedings of that nature. There was no relevant provision under the Child Care Act 1991 that conferred express provision on the District Judge to award costs to a respondent to care proceedings, albeit certain other parts of the Act did confer a power to award costs either to a guardian ad litem, or solicitor who was appointed to represent a child. O’Malley J. held in favour of the respondent, the parent of the child, who had sought costs in the District Court, saying that the proceedings were civil proceedings for the purposes of O. 51 r. 1. She held that the child care proceedings were “civil” proceedings and that a jurisdiction to award costs thus arose. O’Malley J. took the view that the matter before her was a civil case simpliciter and did not consider, for the purposes of the question of costs under the Rules and the Courts Acts, that a distinction was required to be drawn between public and private civil law cases. 16. It should be noted that the Attorney General accepted in the High Court that the District Court did have power to award cost, and that the argument that no such power exists was made by the HSE. 17. At para. 32 of her judgment O’Malley J. stated:-
19. The third case is the judgment of Peart J. in Hayes v. Sheahan [2013] IEHC 179. O’Malley J. had delivered her judgment in HSE v OA just two weeks before the judgment of Peart J. in Hayes v. Sheahan, and it would seem clear that the judgment of O’Malley J. was not opened to Peart J. as no reference is made to it in the body of his judgment. 20. The applicant successfully appealed to the District Court a refusal by the respondent to grant him a firearms certificate pursuant to the provisions of s. 15A of the Firearms Act 1925 - 2009 and sought an order for costs. Peart J. on a case stated held that the District Court had no power to award costs to the applicant in the circumstances. He considered that the appeal under the Firearms legislation did not fall within the definition of “civil proceedings” in the Rules of the District Court and that no power to award costs lay in the District Court. 21. The Court, however, left over the question of whether the Rules of the District Court could confer jurisdiction to award costs when primarily legislation did not do so. 22. Thus, there is a difference in approach to be noted in two of the judgments outlined, and as I consider that the question before me must, for reasons that will appear, be determined in the light of the Courts Acts and the rule making power of the District Court Rules Committee, I consider that the judgment of Peart J. is not on point. 23. With that in mind I turn to examine the relevant statutory context. The District Court: The rule making powers
26. Section 34 of the Court (Supplemental Provisions) Act 1961 provides in simple terms as follows:-
28. Section 24 of the Interpretation Act 2005 provides that legislation conferring variations to an existing jurisdiction does not require to expressly make provision for practice and procedure, and this may be done by rules of practice. Section 24 provides as follows:-
29. Some support for the proposition stated by O’Malley J., that the District Court may have a jurisdiction to award costs even in the absence of an express power in the substantive statute, is found in The State (Hempenstall) v. Judge Shannon & Anor. [1936] IR 326 where the High Court held that in light of Rule 37(a) of the District Court Rules 1926, when a District justice ordered a husband to pay to his wife a weekly sum for her maintenance pursuant to s. 1 of the Married Women (Maintenance in case of Desertion) Act, 1886, the District justice could order the husband to pay a sum for costs despite the Act itself containing no provision for the payment of costs. 30. Also, albeit in the context of the somewhat different Circuit Court Rules, in Inspector of Taxes v Arida [1995] 2 IR 230 the Supreme Court held that a Circuit Court judge hearing an appeal pursuant to s. 429 of the Income Tax Act, 1967 had jurisdiction to make an award of costs, notwithstanding there being no explicit provision in the Act so providing. Egan J. noted that it was “inconceivable”, in the absence of any indication to the contrary, that the Oireachtas intended that the whole paraphernalia of procedural regulation provided for by the Circuit Court Rules 1950, should be disapplied merely because a particular jurisdiction is conferred upon the Circuit Court by legislation other than the Courts Acts. 31. Egan J. at p. 237 added:-
1. The Landlord and Tenant (Ground Rents) Act, 1967. Section 22, sub-s. 1 of the Act enables appeals to be brought to the Circuit Court against decisions of the County Registrar. 2. The Family Home Protection Act, 1976. Section 10, sub-s. 2 thereof gives the Circuit Court jurisdiction concurrently with the High Court….. 32. I prefer the approach of O’Malley J. to the source of jurisdiction because she in my view correctly pointed to the fact that the analysis may be fully undertaken only by regarding that the Rules Committee by statute does have power to determine jurisdiction for costs. I consider that the analysis of Hedigan J. ought not to inform my decision as the focus of his judgment was the unusual “watchdog” provision of the legislation in question. I can find no policy reason in the Act of 1990 which would suggest that costs ought or ought not to be awarded to either the DPP or a respondent in an application under s. 4(5), and no possible argument in public policy has been made by counsel for either party. 33. Further, I consider that the Supreme Court has implicitly recognized the correctness of the approach of O’Malley J., and note also that the Attorney General in the High Court, and the HSE on appeal, also accepted that the power to award costs can be found outside the primary legislation from which the District Court derives its jurisdiction to determine a substantive application. 34. I conclude therefore that the power of the District Court to award costs can be found in O. 51 r. 1, and accordingly that the power can derive from the Rules and not merely from the substantive legalisation by which proceedings before it are maintained and in which questions of the award of costs come to be considered. With that in mind I turn to consider the Rules and the characterization of these proceedings. The District Court Rules 36. The general rule with regard to costs is contained in O. 51 r. 1 which provides the power to award costs in civil proceedings as follows:-
38. That Rule has to be seen in the context of O. 36 r. 1 which provides that an order for costs may not be made against the DPP or a member of An Garda Síochána in the case of summary jurisdiction:-
40. “Civil proceedings” is defined in the interpretation section of the Rules as:-
42. I disagree. As the legislative scheme clearly in my view permits the Rules to vest the power to award costs, which it has done by means of O. 51, r. 1; the Rules themselves must be the starting point for the analysis, and the absence of an express power in the Act itself does not preclude the jurisdiction to award costs. The characterisation of these proceedings in the District Court Rules 1997 44. Criminal proceedings are defined as follows:-
46. Counsel for the DPP argues that as a result of the placing of the application under s. 4(5) in Part II of the Rules, the Rules themselves preclude the award of costs in the application. 47. Order 31 deals with proceedings under the Criminal Justice Act 1984 and the Act of 1990. An application for the retention of records and samples under s. 4(5) of the Act of 1990 is directed by r. 6(1) to be brought by the issue and service of a notice in Form 31.5 of Schedule B to the Rules. Other Rules within O. 31 provide for service, lodgement of a statutory declaration of service, and provides that the order of the court granting the application shall be in Form 31.6 of Schedule B. Discussion 49. I regard this distinction drawn by the Rules, and evident from the structure of the Rules themselves, as meaning that the Rules Committee defined “criminal proceedings” as being other than “civil proceedings”, for the purposes of the interpretation of the Rules or any power granted thereby. Thus I consider that the Rules Committee, having made this distinction, thereby excluded from the jurisdiction to award costs proceedings which are characterised by the Rules as being “criminal proceedings”. I also consider that the Rules Committee had the power by statute to determine the characterisation of the application under s. 4(5) of the Act 1990, and that it did so for the purposes of the Rules, and ipso facto for the purpose of the granting of costs. The Rules vest a jurisdiction in the District Court to award costs in civil cases only, and as the power to limit the class of matters in respect to which costs could be awarded lay with the Rules Committee, the distinction drawn in the Rules themselves must govern the class of proceedings to which the power to award costs applies. 50. Counsel for the respondent suggests that the inclusion of applications under s. 4(5) in Part II of the Rules was done for reasons of “convenience”, and argues that the application would not be of a class that would normally or easily be so characterised. I agree, and accept that proceedings under s. 4(5) of the Act 1990 do not obviously fall within the class of proceedings which would easily be called “criminal”. The application cannot result in a conviction, the imposition of a fine or a term of imprisonment, the Rules Committee has elected in the Rules of 1997 to categorise an application under the section as “criminal proceedings”, and to thereby exclude the power to award costs to a party to such application. This classification does not change the nature of the application under s. 4(5), nor affect the standard of proof in such, but for the purpose of the jurisdiction to award costs the proceedings are criminal. 51. Thus there is no jurisdiction to award costs in the application under s. 4(5). Conclusion
2. Does not arise. |