Supreme Court of Ireland Decisions

 
THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

289/01

BETWEEN

BRIAN FITZGERALD

APPLICANT/RESPONDENT

AND DIRECTOR OF PUBLIC PROSECUTIONS AND ATTORNEY GENERAL

RESPONDENTS

[Judgments delivered by Keane CJ and Hardiman J; Denham J, Murray J and McGuinness J concurring with both judgments]

JUDGMENT of the Court delivered the 25^th day of July 2003, by Keane C.J.

This is an appeal from a judgment and order of the High Court (Kearns J.) which determined that the proviso to s. 4 of the Summary Jurisdiction Act, 1857 (hereafter "the 1857 Act") was inconsistent with the Constitution and had not remained part of the law by virtue of Article 50 of the Constitution. The proviso in question is to the effect that, whereas a District Judge may refuse to state a case for the opinion of the High Court on the ground that the application is "merely frivolous", he may not do so where the application is made on behalf of the Attorney General (or, now, the Director of Public Prosecutions, it being accepted that this is the consequence of a process of statutory adaptation.)

The applicant had been given leave to apply by way of judicial review to the High Court for inter alia an order prohibiting the Director of Public Prosecutions (hereafter "the D.P.P.") from bringing an appeal by way of case stated in respect of the dismissal by the District Court on the 12^th February 1998 of a complaint that he had been driving a mechanically propelled vehicle in a public place while under the influence of alcohol in excess of the permitted amount contrary to s. 49(3) of the Road Traffic Act, 1961. It is not in dispute that on the 25^th February 1998 an application in writing was made on behalf of the D.P.P. to the District Judge to state and sign a case setting forth the facts and grounds of his determination for the opinion thereon of the High Court, the D.P.P. being dissatisfied with his determination of the proceedings as being erroneous in point of law. A copy of that notice together with a copy of the draft Case Stated which the District Judge was being invited to sign was sent to the solicitor for the applicant on that day. On the 20^th July 1998, the High Court granted leave to bring the application by way of judicial review. There was thereafter a delay, which was unexplained, in proceeding with that application. The applicant was given leave on the 30^th November 1999 to join the District Court Rules Committee and the Minister for Justice, Equality and Law Reform as respondents and on the 13^th March 2001 was given leave to amend his original statement grounding the application for judicial review by including reliefs in the form of declarations that inter alia s. 4 of the 1857 Act was inconsistent with the Constitution.

In proceedings of this nature, as soon as the draft case has been signed and stated by the District Judge, certain time constraints come into operation under the relevant statutory provisions which, if not complied with, deprive the High Court of its jurisdiction to entertain the Case Stated. There is, however, no reason to suppose that, had the present proceedings not intervened, the District Judge would not have signed the draft Case Stated, subject to whatever amendments he considered appropriate. It must be assumed that he would have considered himself bound by the proviso to state the case, without addressing the question as to whether he deemed the application frivolous or not.

The sequence of events, as set out in the draft Case Stated, in the District Court was as follows. Garda Michael Hanlon, a member of An Garda Siochana stationed at Santry Garda Station, gave evidence that on the 7^th March 1997at 10.50 p.m., while on motorcycle duty, he attended the scene of a road traffic accident at the Comet Public House on the Swords Road. When he arrived he saw two cars which were pulled into the side of the road. A man at the scene identified himself as the owner and driver of one of the motor cars involved in the accident. The respondent then came out of the public house and told the garda that he was the owner and driver of the other vehicle involved in the accident. The garda said that he noticed that the respondent seemed to be unsteady on his feet, that there was a strong smell of intoxicating liquor from his breath and that he was slurring his words. The garda asked the respondent if he had been drinking and the respondent replied that he had consumed two pints of Guinness before the accident, that he had gone back into the pub after the accident and that the manager had given him a large whiskey "to calm his nerves". The garda formed the opinion that the respondent had consumed intoxicating liquor to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place and that he was thereby committing an offence contrary to the relevant provisions of the Road Traffic Acts. He was then conveyed to Santry Garda Station where a urine sample was taken by a designated registered medical practitioner, Dr. Fakih, the relevant statutory requirements being fully met.

A certificate was subsequently received from the Medical Bureau of Road Safety, showing a concentration of 216 mgs of alcohol per 100 mls of urine, which was completed by Dr. Fakih and the Medical Bureau and this, together with a certificate of posting, were produced to the court. Cross-examined by counsel for the respondent, Garda Hanlon said that he had spoken with the owner of the public house after the accident and that the latter had told him that

"he had given this whiskey to the respondent, who was in shock after the accident. The respondent's wife had also been given an alcoholic beverage."

The draft Case Stated then records that counsel on behalf of the respondent sought a direction on the ground that the respondent would not have been over the limit but for the extra drink which he had taken. The solicitor appearing for the prosecution said, in reply, that

"The hip-flask defence had been abolished under the 1994 Road Traffic Act."

The draft Case Stated then records that the District Judge did not accept this latter submission. It states that the District Judge was of the view that the guard's evidence had been "very fair" and that as he was unbiased towards the respondent "it would be wise to rely singularly on his evidence". It continues:

"At this stage of the proceedings I decided, on the evidence before the court, that it was quite clear that the respondent's high reading was due to the large whiskey which the bar manager had given to him. I was satisfied that there was no evidence to suggest that the respondent was attempting to frustrate the prosecution. In the circumstances, I dismissed the charge accordingly."

The draft Case Stated concludes

"The opinion of the High Court is sought as to whether I was correct in law in dismissing the said charge against the respondent, under s. 49(3)(6)(a) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994 on the grounds that the prosecuting garda had given evidence that the respondent had been given a large alcoholic beverage after the driving complained of and before the specimen was subsequently taken from him."

In the High Court, the learned trial judge accepted the submission on behalf of the respondent that the proviso to s. 4 was inconsistent with the Constitution, since, as it was put, it deprives the District Judge of any discretion when requested to state a case by the Attorney General or the Director of Public Prosecutions and thus constituted an unwarranted interference with the exercise of the judicial power of the State. He accordingly granted the declaration sought.

Following the hearing of the appeal in this court, the court re-listed the case for the purpose of hearing argument on the following four points:-

(i) Whether a District Judge who is asked to state a case pursuant to s. 2 of the Summary Jurisdiction Act, 1857 must first satisfy himself whether a point of law within the meaning of the section has arisen; and

(ii) If so, whether the provisions of s. 4 of the Act enabling the judge to state a case where he is of the opinion that the application is merely frivolous come into operation only in a case where the judge is satisfied that such a point of law arises; and

(iii) If so, whether the determination by the District Judge in the present case involved the resolution by him of a question of fact only; and,

(iv) If so, whether the jurisdiction of the judge to state a case pursuant to s. 2 of the Act became operative at any stage of this case.

The parties made further oral and written submissions on these questions. It was submitted on behalf of the D.P.P. that the answer to the first question was in the negative and that, accordingly, the other answers did not arise. It was submitted on behalf of the respondent that the District Judge was required to satisfy himself whether a point of law arose, but that, while the draft Case Stated could be regarded as presenting a question of law, it was one which would ordinarily be regarded as "frivolous" within the meaning of s. 4 of the 1857 Act.

Section 2 of the 1857 Act provides that

"After the hearing and determination by a justice or justices of the peace of any information or complaint which he or they have power to determine in a summary way, by any law in force or hereafter to be made, either party to the proceeding before the said justice or justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within three days after the same to the said justice or justices setting forth the facts and grounds of such determination, for the opinion thereon of one of the Superior Courts of law to be named by the party applying; and such party, hereinafter called the appellant, shall, within three days after receiving such case, transmit the same to the court named in his application, first giving notice in writing of such appeal with a copy of the case so stated and signed to the other party in the proceeding in which the determination was given hereinafter called the respondent". [Emphasis added]

Section 4 provides that

"If the justice or justices be of opinion that the application is merely frivolous, but not otherwise, he or they may refuse to state a case, and shall on the request of the appellant, sign and deliver to him a certificate of such refusal: Provided that the justice or justices shall not refuse to state a case where application for that purpose is made to them by or under the direction of Her Majesty's Attorney General for England or Ireland, as the case may be." [Emphasis added]

Finally, s. 5, as adapted, provides that where the District Judge refuses to state a case, the appellant may obtain an order of mandamus in the High Court directing him or her to state the case.

Section 51 of the Courts (Supplemental) Provisions Act, 1961 extends the jurisdiction conferred by s. 2 of the 1857 Act, but is not material to these proceedings. Order 102 Rule 15 of the District Court Rules provides that

"Where a judge considers that an application or a request for a case stated is frivolous, he or she may refuse to state a case and shall, on the request of the appellant or the party requesting the case stated, sign and cause to be delivered to him or her a certificate of refusal in the form 102.6, Schedule D and cause a copy thereof to be served upon every other party to the proceedings. A judge shall not refuse to state a case where application or request for a case stated is made by or under the direction of the Attorney General, the Director of Public Prosecutions, a Minister of the Government or a Minister of State, or the Revenue Commissioners."

The statutory scheme thus established is relatively straightforward. Any party who is dissatisfied with the determination of the District Judge as being erroneous in point of law is entitled to request the District Judge to state a case: he need not specify the error of law into which the judge is alleged to have fallen. In turn, the District Judge is entitled to refuse to state the case if he considers the application "merely frivolous", but not otherwise: and, in the case of the law officers, he must accede to the request.

Since s. 2 is designed to facilitate an appeal by a person dissatisfied with the District Judge's determination as being "erroneous in point of law", a District Judge might well consider a request for a Case Stated as frivolous, if there is no conceivable ground on which his determination could be so described. Section 4 seems plainly intended to ensure that the power to appeal to the Superior Courts on the ground that the determination was erroneous in law is not abused by litigants pursuing pointless appeals with no prospect of success and consequences in both costs and delay. If the defendant is charged with driving in excess of the speed limit in a forty mile area, a garda gives unchallenged evidence that an appropriate device recorded him as travelling at over 100 mph and, the defendant gives no evidence and is convicted, a Case Stated could proceed all the way to the High Court, were it not for the jurisdiction given by s. 4 to the judges to refuse the application as "merely frivolous".

No doubt there are issues of fact as simple as that which can, with some semantic juggling, be converted into questions of law. There may also be occasions, as Hardiman J points out in his judgment, when a question of law may clearly arise, but the application for a Case Stated could still be regarded as frivolous, eg., where it has already been the subject of a Case Stated and a determination by the High Court or this court. It is sufficient to say that, in my view, what these provisions envisage is that any party may apply to the District Judge for a Case Stated and that, before acceding to the request, he must consider whether the request is "merely frivolous", save where the application is by one of the law officers. A decision that it is frivolous may be on the ground that no question of law arose or, that if a question of law did arise, it would, depending on the circumstances, be a pointless waste of time to grant the request for a Case Stated. I have no doubt that, in a case such as the present, if the proviso were not applicable, the District Judge would have been entitled to accede to the application for a Case Stated, unless he was of the view that it was merely frivolous.

I proceed, accordingly, to consider the issue raised in these proceedings as to the constitutionality of the proviso to s. 4.

Article 34.1 of the Constitution provides that

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

The administration of justice is thus exclusively vested in the courts established under the Constitution. Article 35.1 further provides that all judges are to be independent in the exercise of their judicial functions and subject only to the Constitution and the law. These provisions give effect to the tripartite division of the powers of government referred to in Article 6.

Since the decision of the former Supreme Court in Buckley & Others –v- Attorney General [1950] IR 67, any provision in legislation requiring a court to decide in a particular manner a case of which it was actually seised would, accordingly, be invalid, having regard to the provisions of the Constitution. Moreover, since the trial of criminal offences is exclusively the function of the courts established pursuant to Article 34, it is those courts alone which can determine whether the essential ingredients of any offence with which a person has been charged have been proved and legislation providing that, in particular criminal proceedings, a certificate was to be "conclusive evidence" of certain matters has also been held by this court to be invalid: see Maher –v- Attorney General [1973] IR 140. It was submitted on behalf of the respondent that this legislation, in assigning to a person other than a judge, i.e., the D.P.P., the decision as to whether there should be an appeal by way of case stated in a particular case, also violated those principles and, in support of that proposition, the decision of this court in The State (McEldowney) –v- Kelliher [1983] IR 289 was cited. As already noted, that submission was accepted by the learned trial judge in the High Court.

The State (McEldowney) –v- Kelliher arose out of the provisions of s. 13 of the Street and House to House Collections Act, 1962. Under that Act, the collection of money from the public in public places or by means of house to house visits was illegal, unless done in accordance with a permit granted by the Chief Superintendent of the Garda Siochana for the locality in which the collection was being held. Section 9 of the Act provided that the Chief Superintendent was not to grant such a permit for a collection where he was of the opinion, inter alia, that the proceeds would be for the benefit of an unlawful object or an organisation membership of which was unlawful. Section 13 made provision for an appeal to the District Court in the event of a refusal of the application and provided that if the court was satisfied, having regard to all the circumstances of the case, that the application should not have been refused, it could direct the Chief Superintendent to grant the permit. However, s. 13(4) also provided that

"Without prejudice to the jurisdiction of the District Court to disallow on other grounds an appeal under this section, an appeal under this section shall be disallowed, if, on the hearing thereof, a member of the Garda Siochana not below the rank of inspector states on oath that he has reasonable grounds for believing that the proceeds or any portion of the proceeds of the collection to which the collection permit the subject of such appeal relates would be used –

(a) for the benefit …. of an organisation membership of which is unlawful…."

In the High Court, a challenge to the validity of this provision on the ground that it was an unlawful interference by the Oireachtas in the administration of justice failed. This court, however, on appeal, concluded that s. 13(4) was invalid having regard to the provisions of Articles 6, 34 and 35 of the Constitution.

Delivering the decision of the court, Walsh J. observed that, by expressly granting a right of appeal to the District Court against the refusal by the Chief Superintendent of an application for a collection permit, the Oireachtas had conferred on the District Court the power to decide a specific issue in accordance with the law, i.e., whether or not the application should have been refused. The learned judge noted that, if the Oireachtas had in express terms excluded from the appellate jurisdiction of the District Court applications which had been refused on the ground that the Chief Superintendent was of the opinion inter alia that the collection would be for the benefit of an unlawful object or an unlawful organisation, that would have been the end of the matter, provided the Chief Superintendent had acted fairly and in accordance with constitutional propriety. He went on:

"However, s.s. 4 of s. 13 purports to require a District Justice to disallow an appeal once the statement on oath described therein has been made to him, irrespective of whether he believes it or not and irrespective of whether or not, even in a case where he has heard the evidence, he has arrived at an opinion contrary to that of the Chief Superintendent…"

Having referred to Buckley & Others –v- The Attorney General, Maher –v- The Attorney General and The State (C) –v- The Minister for Justice [1967] IR 106, the learned judge went on:

"In the opinion of the court, the present case falls squarely within the principles enunciated in those decisions. The statute creates a justiciable controversy and then purports to compel the court to decide it in a particular way upon a particular statement of opinion being given upon oath as to whether or not a statutory reason for refusing the permit exists, whatever the opinion the court may have formed on the issue in question or might have formed if it had heard any evidence upon it."

The provision in question was, accordingly, declared by the court to be invalid having regard to the provisions of the Constitution.

I am satisfied that s. 4 of the 1857 Act does not require the resolution by a court of a justiciable controversy between parties. It does no more than empower a District Judge to decline to allow an appeal to proceed by way of case stated, where he is of the view that the request is frivolous. It cannot be equated to the justiciable controversy which was the subject of The State (McEldowney) –v- Kelliher, i.e., as to whether the refusal by the Chief Superintendent to grant the collection permit on the ground in question should be upheld or set aside by the District Court.

The justiciable controversy assigned to the District Court in this case was the criminal issue as to whether the respondent was guilty of an offence under the relevant legislation. The proviso to s. 4 of the 1857 Act, which is challenged in these proceedings, does not require that issue to be determined in any particular manner nor does it interfere in any way with the determination by the courts established under the Constitution of his guilt or innocence in accordance with law. It does no more than enable the law officers to obtain a ruling from a Superior Court as to the correctness of the District Judge's determination where they are dissatisfied with that determination as being erroneous in point of law. It is entirely distinguishable from the provision which was found to be invalid in McEldowney, where the legislation assigned a particular issue for determination to the District Court and then, in effect, directed the court to decide the issue in a particular manner where evidence of a specific nature was given.

Nor is the procedure under the proviso to s. 57 in any way comparable to that permitted by s. 13 of the Lunatic Asylums (Ireland) Act, 1875, which was considered in The State (C) –v- The Minister for Justice and which entitled the executive to remove a person who was awaiting trial to a district lunatic asylum and confine him there until such time (if any) when he was certified to be sane. That provision had the effect, at the behest of the executive, of postponing indefinitely a criminal trial of which the District Court was already seised and effectively depriving the court of its jurisdiction to determine whether the accused was suffering from insanity of such a character as to render him unfit to stand his trial. It is hardly surprising that Ó Dálaigh C.J. characterised this as

"About as large an intrusion upon a court proceeding as one could imagine."

In the present case, the requirement that the District Judge should state a case for the opinion of the Superior Courts where he is requested so to do by the law officers does not interfere in any way with the exercise by the courts of their jurisdiction to determine the guilt or innocence of the accused person. On the contrary, it enlarges the jurisdiction of the courts in dealing with such cases by facilitating the setting aside by the Superior Courts of a determination which is erroneous in point of law. In my view, it was perfectly legitimate for the legislature to proceed on the basis that the law officers, as persons charged with serious constitutional responsibilities, would not have the same motives for prosecuting specious and time wasting appeals as others.

Since the legislation unarguably permits an appeal by way of case stated from an acquittal, it may be said, to a limited extent, to derogate from the rule against double jeopardy. It was not, however, suggested in the course of argument that the proviso was also constitutionally invalid on that ground and, in my view, correctly. The legislature were entitled to proceed on the basis that the Superior Courts should be in a position to remedy an injustice which has occurred in criminal proceedings as a result of an error in law, whether it has led to a conviction or an acquittal, although in accordance with the values on which our system of law rests, the acquittal of the guilty is not of the same order of injustice as the conviction of the innocent.

I would accordingly, allow the appeal and substitute for the order of the High Court an order dismissing the applicant's claim.

THE SUPREME COURT

289/01

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Between:

BRIAN FITZGERALD

Applicant/Respondent

and THE DIRECTOR OF PUBLIC PROSECUTION, IRELAND and THE ATTORNEY GENERAL

Respondents/Appellants

JUDGMENT of Mr. Justice Hardiman delivered on the 25th day of July, 2003.

I agree with the judgment of the learned Chief Justice in which he finds that s.4 of the Summary Jurisdiction Act 1857 is not inconsistent with the Constitution and has, therefore, been carried forward by Article 50 of the Constitution.

In the course of the hearing of this appeal, however, certain points arose as to the true construction of the Act of 1857. They do not determine the Constitutional issue, but are nonetheless important. To summarise my findings in relation to them: I consider, firstly, that the established existence of a "question of law" as opposed to fact, as a ground of a District Judge's decision against which it is desired to appeal by Case Stated, is a condition precedent to the power of such judge to state a Case. It is not an aspect of the issue which may subsequently arise as to whether the request for a Case Stated is "merely frivolous".

Secondly, no Case has yet been stated by the learned District Judge in this instance. Only the prosecutions draft case stated exists. I consider that it is inappropriate in these circumstances to express any view at all on the questions of whether the learned District Judge's decision did or did not involve a question of law, and whether the request for the Case Stated can be regarded as "merely frivolous", in the statutory phrase.

In my view, the Constitutional issue raised in this case only escapes being moot only by reason of the fact that, by s.2 of the Act of 1857, the service of a notice requiring a case stated "suspends" the District Court decision. It is unnecessary and premature to express any conclusions, even very limited ones, on the assumption that the recitals contained in the draft case stated prepared by the prosecution are correct or will be adopted by the learned District Judge. I believe that the draft document has no status whatever.

I regard these issues as important, as they relate to the circumstances in which an acquittal by a court of competent jurisdiction can be suspended and perhaps overturned. Since agreement that the impugned provisions are consistent with the Constitution does not necessarily imply agreement on the issues mentioned, I have ventured to prepare this separate judgment.

This is an appeal against the judgment and order of the High Court (Kearns J.) delivered the 4^th day of May, 2001 whereby it was declared that a portion of s.4 of the Summary Jurisdiction Act, 1857 was inconsistent with the provisions of Article 34(1) of the Constitution and was, therefore, not carried forward by Article 50. It was also declared that portion of Order 102 Rule 15 of the District Court Rules 1997 was ultra vires the powers vested in the District Court Rule Committee.

Each of these provisions relate to the power, and in certain circumstances the obligation, of a district justice to state a Case pursuant to s.2 of the Act of 1857. In each case, the portion invalidated related to the proviso that (in the words of the 1857 Act):-

"… The justice or justices shall not refuse to state a case where application for that purpose is made to them by or under the direction of his Majesty's Attorney General…"

The persons now entitled to require a district judge to state a case in circumstances where he has no option but to do so under the Statute and the Rules are the Attorney General, The DPP, a minister of the Government or a minister of State or the Revenue Commissioners.

The factual background.

On the 12^th February, 1998 the applicant, Mr. Fitzgerald, was acquitted in the District Court of the offence of driving with excess alcohol in his urine contrary to s.49(3) and (6)(a) of the Road Traffic Act, 1961 as inserted by s.10 of the Road Traffic Act, 1994.

On the 25^th February, 1998 Mr. Fitzgerald's solicitors were served with two documents. The first was addressed to the learned district judge who had acquitted the defendant and said:-

"Take notice that the above-named complainant being dissatisfied with your determination of the above proceedings on the 12^th day of February, 1998 as being erroneous in point of law, DOES HEREBY APPLY to you to state and sign a Case setting forth the facts and grounds of such determination for the opinion thereon of the High Court".

This was accompanied by an unsigned copy of a document entitled "Appeal by way of Case Stated". The contents of this document sets out a version of the evidence which was before the District Court. It then contains a statement that the learned District Judge regarded the prosecuting garda as a witness on whose evidence he could rely. It recited the acquittal of the defendant and ended as follows:-

"(7) The opinion of the High Court is sought as to whether I was correct in law in dismissing the said charge brought against the respondent, under Article 49(3) and (6)(a) of the Road Traffic Act, 1961, as inserted by s.10 of the Road Traffic Act, 1994, on the grounds that the prosecuting garda had given evidence that the respondent had been given a large alcoholic beverage after the driving complained of and before the specimen was subsequently taken from him".

This document was prepared for the signature of the learned District Judge but was not signed by him.

The service on Mr. Fitzgerald of the document entitled "Appeal by Way of Case Stated" seems to have given rise to confusion. By Order 62 of the Rules of the Superior Courts, a party who is appealing by way of case stated must give notice of this appeal to the party who succeeded in the District Court "immediately before transmitting the case to the Central Office". By Order 62 Rule 1 transmission to the Central Office is to occur within three days of receiving the case as actually stated by the District Judge. Normally, the fact that the judge has stated the case is signified simply by his signature on the original of the case stated. The service of the document on the defendant would imply to anyone familiar with the Rules that the case was about to be transmitted to the Central Office which in turn implies that it had been signed within the preceding three days by the District Judge. It was presumably on that basis that the applicant sought relief by way of judicial review. There is no requirement to serve the party who is successful in the District Court until after the case has been stated.

This point was not raised on either side and I do not regard it is as critical to the outcome of the case. However I think it is a significant feature of the procedural history which, perhaps, casts some light on the question of whether these proceedings are premature, which is considered below. In my view the grounds on which the Constitutional issue avoids being moot are narrow ones. I do not believe the Court should pronounce or imply any view beyond the scope of the immediate issues.

On the 20^th July, 1998 the applicant obtained leave to seek judicial review by way of prohibition and declaration. He sought an Order of Prohibition prohibiting the Director from bringing an appeal by way of Case stated in the manner intimated by the service of documents on the applicant. This relief might more appropriately have been sought by way of injunction. He then sought five declarations, all attacking the validity of Order 102 Rule 15 of the District Court Rules.

After a very long interval, on the 13^th March, 2001 the applicant was granted leave to amend his statement grounding the application for judicial review so as to add the following reliefs:-

"(a) A declaration that s.4 of the Summary Jurisdiction Act, 1857 is invalid having regard to the provisions of Article 34 of the Constitution of Ireland, 1937.

(b) A declaration that s.4 of the Summary Jurisdiction Act, 1857 is inconsistent with the provisions of the Constitution of Ireland 1937 and was not carried over by Article 50 of Constitution of 1937.

(c) In the alternative a declaration that s.4 of the Summary Jurisdiction Act, 1857 was repealed by s.83 of the Courts of Justice Act, 1924".

At page 3 of the judgment of the learned trial judge it is recited that:-

"In the course of the hearing before this Court the various reliefs sought and the grounds relied upon boiled down to the net issue as to whether s.4 of the Summary Jurisdiction Act, 1857 was incompatible with the provisions of the Constitution".

Statutory provisions.

The statutory provision for a case stated pursuant to the Act of 1857 is set out in the judgment of the learned High Court Judge, which also records that the applicant's original contention that the provision for such case stated had been impliedly repealed was withdrawn. The central feature of the jurisdiction is set out in s.2 of the 1857 Act:-

"After the hearing and determination by a justice or justices of the peace of any information or complaint which he or they have power to determine in a summary way, by any law now in force or hereafter to be made, either party to the proceedings before the said justice or justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within three days after the same to the said justice or justices to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of [The High Court]". (Emphasis added).

Section 4 of the same Act, provides that a justice may refuse to state a case if he is "of opinion that the application is merely frivolous, but not otherwise…". There then follows the words quoted earlier in this judgment prohibiting such justice from refusing to state a case when the application to do so comes from official quarters. There follows at s.5 a provision for a disappointed applicant for a case stated to apply to the High Court for an order requiring a case to be stated.

Apart from incidental changes, such as that in the nomenclature of the judges who exercise summary jurisdiction, the substantive amendment to the above provisions was brought about by s.51 of the Courts (Supplemental Provisions) Act, 1961. That measure firstly "extended" s.2 so as to enable a case to be stated in any proceedings heard in the District Court except proceedings relating to the

non-summary trial of an indictable offence. It continued the requirement that a party seeking a case stated had to be "dissatisfied with such determination as being erroneous in point of law". It extended the time for applying for a case stated to fourteen days. In general, this measure mirrors the language of the 1857 Act.

It is then provided that once an application pursuant to s.2 of the 1857 Act is made the determination of the District Court in which it applies "shall be suspended", until the case stated has been heard and determined or, if the application is refused, until such refusal.

It was common case that s.4 of the Act of 1857 was the statutory basis for Order 102 Rule 15 of the District Court Rules.

Developments on the hearing of the appeal.

The points argued in the High Court raised the question of whether s.4 of the Act of 1857, and the Rules deriving from it, were constitutionally objectionable either as an interference with a judicial discretion in a matter relating to the exercise by a judge of his jurisdiction, and/or as an unlawful discrimination between a defendant on the one hand and the Director of Public Prosecutions on the other.

However, on the hearing of this appeal other issues arose. After the initial hearing the Court relisted the case for the purpose of hearing argument on the following four points:-

(i) Whether a district judge who was asked to state a case pursuant to s.2 of the Summary Jurisdiction Act, 1857 must first satisfy himself whether a point of law within the meaning of the Section has arisen; and

(ii) if so, whether the provisions of s.4 of the Act enabling the judge to refuse to state a case where he is of the opinion that the application is merely frivolous do not come into operation in a case where the judge is satisfied that such a point of law arises; and

(iii) if so, whether the determination by the District Judge in the present case involves the resolution by him of a question of fact only; and

(iv) if so, whether the jurisdiction of the judge to state a case pursuant to s.2 of the Act became operative at any stage of this case.

The parties subsequently made further oral and written submissions on these questions.

Significance of the Court's questions.

It appears to me that the questions raised by the Court, or at least some of them, logically arise prior to addressing the question of the constitutional status of s.4 of the Act 1857. That Section follows s.2 in the statutory scheme. The latter section provides for the circumstances in which a person may apply for a case stated. Section 4, on the other hand creates the power to refuse to state a case in particular circumstances and further provides that this power does not apply when the application is made by a relevant official person. Section 4, in other words, assumes the existence of a valid application.

The most salient limitation on the right to apply for a case stated is that one must be dissatisfied with the District Court decision "as being erroneous in point of law". This is emphasised throughout the original statutory scheme. The recital at the commencement of the Act of 1857 is in these terms:-

"Whereas it is expedient that provision should be made for obtaining the opinion of a superior court on Questions of Law which arise in the exercise of summary jurisdiction by Justices of the Peace…".

Section 2 contains the phrase "erroneous in point of law…" quoted above.

Section 6 of the Act provides that:-

"The Court to which a case is transmitted under this Act shall hear and determine the Question or Questions of Law arising thereon, and shall thereupon reverse, affirm, or amend the Determination in respect of which the Case has been stated…".

Moreover, the Judge on whom an application for a case stated on the basis set out has been served is obliged (unless one of the exceptions applies) "… to state and sign a Case setting forth the Facts and the Grounds of such Determination, for the opinion thereon of [The High Court]".

It therefore appears that the text and structure of the Acts plainly indicate that an application for a case stated may only be made and granted in the first instance if it concerns a question or questions of law. This view is confirmed by a consideration of the authorities. From Attorney General v. McLoughlin [1931] I.R. 480, a case dealing with the power to state a consultative case under s.83 of the Courts of Justice Act, 1924, to DPP v. Nangle [1984] ILRM 171, these are uniformly supportive of the view that the jurisdiction to state a case as to alleged error or difficulty in point of law "is exclusively confined to correcting errors of law by an inferior court in the determination of proceedings before it", to quote the words of Finlay P. (as he then was) in the last mentioned case. That case, indeed, is not without parallel to the present one. It was a case stated by way of appeal against acquittal on an assault charge. Finlay P. observed that:-

"Whilst the reported decisions on this matter and the experience of the Court is that it [the jurisdiction to state a case under the 1857 Act] has almost universally been confined to cases of appeals against conviction by a district justice, there can be no valid distinction in principle which could make it inapplicable to a like appeal against an acquittal. That statement can be said to be subject to the qualification that in the case of an appeal against an acquittal the onus of proof beyond a reasonable doubt rests upon the prosecution and that includes, as occurred in this case, the onus of negativing by a standard of proof beyond a reasonable doubt, a defence such as self defence".

Later in the judgment, the passage first quoted above appears. Having asserted that the jurisdiction is confined to correcting errors of law, the learned judge went on to say that:-

"It would constitute an unwarranted interference by me… to hold that the evidence so summarised could not have raised a reasonable doubt in the mind of the District Justice. He had the opportunity of hearing the witnesses in this case and of listening to their answers to questions both in direct and cross-examination dealing no doubt in significant detail with the incidents which occurred".

It appears to me that the effect of ss. 2 – 6 of the Act of 1857, as amended, is to create a special statutory jurisdiction in the Superior Courts. This jurisdiction is of a limited nature. Firstly, it is appellate: this appears from the latter part of s.2 where a party seeking the case is designated "the appellant". Secondly, the right to seek a case stated by way of appeal is confined to a party who is "dissatisfied with the said determination as being erroneous in point of law" (emphasis added). It is not available, therefore, to a party dissatisfied with the decision of the District Court on the grounds that the District Judge has taken one view rather than another of the evidence or has accorded credence to one witness and withheld it from another. If a defendant is dissatisfied on those grounds, he may appeal, by way of rehearing, to the Circuit Court. Thirdly, the mode of appeal under the procedure laid down in 1857 is by way of a written statement "setting forth the facts and the grounds of such determination" and not by way of rehearing. Where the Court of First Instance hears the evidence and sees the witnesses, and the appeal is by way of a written statement of the facts and grounds, it appears to me that such appeal must be limited to points of law and principle: see DPP v. Francis Cunningham, (Supreme Court unreported 8^th October, 2002). Thus, in Nangle cited above Finlay P. declined to interfere with an acquittal even though he felt that the respondent's evidence had "a clear air of implausibility" about it, because that did not constitute a point of law.

In my view, the jurisdiction to entertain a case stated by way of appeal against acquittal requires to be strictly construed. In DPP v. O'Shea [1982] IR 384, Henchy J. and Finlay P. (as he then was) embarked on analysis of remarkable depth and thoroughness of the nature of an acquittal. The former said:-

"So far as I can ascertain, the authoritative Irish decisions in both the pre-Constitution and the post-Constitution eras show that a plea of previous acquittal will always prevail (save in a statutorily allowed acquittal by case stated) to defeat any appeal or other proceeding in which it is sought to make a person liable for any offence in respect of which he has already been acquitted within jurisdiction by a court of competent jurisdiction…".

The reason for this, and its deep roots in fundamental principle, appear clearly from the cases analysed by the learned judges. In the leading (and very remarkable) case The Queen v. the Justices of Antrim [1885] 2IR 603 O'Brien J., in a passage cited and commented upon by Finlay P., said:-

"But the matter does not rest merely upon the technical nature of certiorari nor is the principle exhausted by the rule nemo bis vexari debet, because that is common to civil cases. Another element comes in – the ground of constitutional law, following the necessity of natural law. An acquittal by a tribunal of whatever degree is a judgment in rem, a judgment of personal status".

I agree with the passage cited and would therefore have difficulty in agreeing with the Director's submission that acceding to an application for a case stated, which will continue the suspension of the judgment of acquittal, and which can have the result of reversing it (see s.6 of the Act of 1857) is not to be regarded as judicial Act, but as "an administrative or a ministerial one only". But that is not the issue at present. The status of near inviolability classically afforded to an acquittal emphasises the need to construe the permitted scope of an attack on such acquittal strictly. I have no hesitation in finding that the scope of such challenge is strictly limited to a question of law.

The first question.

It is now possible to address the first question raised by the Court:

"Whether a district justice who is asked to state a case pursuant to s.2 of the Summary Jurisdiction Act, 1857 must first satisfy himself whether a point of law within the meaning of the Section has arisen?"

The respective parties advocate different answers to this question, the applicant contending that it should be answered in the affirmative and the Director and the other State Authorities that it should be answered in the negative.

In contending for a negative answer, the Director puts the nub of his case as follows:-

"Section 4 does not require the Justice to refuse to state a case where in his opinion the application for it is frivolous but it empowers him to do so. If the Justice fails to consider whether or not the application is frivolous he will presumably state the case with the almost certain result for the appellant on an application bound to be frivolous not only to have the determination of the Justice confirmed by the Superior Court but also to have an order for the costs of the hearing imposed on him. It would appear therefore that the Justice asked to state a case is not obliged to satisfy himself whether a point of law has or has not arisen or whether the applicant may or may not be entitled to think that the Justice's determination has been erroneous in point of law". (Emphasis added)

This amounts to saying that, since a district judge need not refuse to state a case where he thinks the application is frivolous, but is merely empowered to refuse to do so, he is not obliged to consider whether or not it is frivolous, but may do so if he wishes. Since one of the reasons why it might be thought to be frivolous is that it does not raise any legal point at all, or that none arose in the original determination, therefore the District Judge does not have to consider the question of whether any ground of dissatisfaction "in point of law" is raised at all.

I cannot agree with this somewhat tortured logic. The issue of whether a decision of the District Court is "erroneous in point of law" or whether a particular decision is one on which "any question or questions of law" arise, is quite different to the question of whether an application for a case stated is frivolous. An application for a case stated might undoubtedly raise a point of law and yet be frivolous. For example, if a case were adjourned pending a decision of the Superior Courts on some relevant issue which was eventually decided against the contention of one party, it would be merely frivolous in an indistinguishable case to ask that the same question of law be raised for the opinion of the High Court.

Section 2 of the 1857 Act, and its extension by s.51 of the Courts (Supplemental Provisions) Act, 1961, contain a number of statutory

pre-conditions for a valid application for a case stated. These include:-

(a) It must be made in a case "heard and determined" by the District Court,

(b) It must however arise in proceedings "other than proceedings relating to an indictable offence which was not dealt with summarily by the Court",

(c) There must have been a request for a case to be stated within fourteen days of the determination and

(d) It must appear that one of the parties is dissatisfied with the decision as being erroneous in point of law.

If, for example, it appears that a request for a case stated was not made within time this would clearly invalidate it. But no-one could rationally describe this invalidity as being an aspect of "frivolity", as the Director seeks to do here. On the contrary, the question of whether the request is or is not frivolous will only arise if the statutory preconditions of a valid application for a case stated are met. One of these is that it should be made within time: another is that it should relate to dissatisfaction with the decision "in point of law".

The Director also relies on the proposition that "the appellant is not required to state in his application why he thinks that the determination is erroneous in point of law". It seems more than reasonable that a person alleging that he is dissatisfied with a decision is being erroneous in point of law should specify the grounds of this view. One must remember, however, that this a mid-Victorian statute which, it may be, had to have regard to the position of unrepresented defendants and of magistrates who were not trained lawyers. It may have been felt that such persons might be incapable of articulating a question of law with precision. This, however, is not an entirely satisfactory explanation since s.14 of the 1857 Act provides that any person who availed of the provisions of s.2 "shall be taken to have abandoned… finally and conclusively, and to all intents and purposes", his right to an appeal by way of rehearing at Quarter Sessions. But the existence of this last mentioned provision itself demonstrates the clear division in the mind of the draftsman between the appeal by way of rehearing at Quarter Sessions at which all issues would be open, and the more limited appeal to the Superior Courts on a point of law.

In the case of an acquitted person whose acquittal is challenged by way of case stated, the decision to state the case has the following effects: it "suspends" the determination of acquittal until the case stated is heard and determined; in practice it compels him to become a participant in High Court proceedings (if he does not do so the decision in his favour will be unsupported); it exposes him to the risks of the costs of these proceedings and it exposes him to the risk of conviction where he has been acquitted. Since these consequences follow merely from the stating of the case, which is done without any reference to the party who has been successful in the District Court, it seems extraordinary to suggest, as the Director does, that the District Judge need not concern himself at all with the question of the validity of the application for the case stated, or with the question of whether the application is frivolous.

Considering the provisions of s.83 of the Courts of Justice Act, 1924 (now replaced by s.52 of the Act of 1961) in Attorney General v. McLoughlin [1931] 480, Sullivan P. pointed that they, too, were strictly limited:-

"The power conferred upon a district justice by the Section is limited in express terms, presumably because the legislature recognised that without such limitation, an intolerable burden might be cast not only upon this Court but upon the parties bearing the costs of the proceedings".

Finally, it was submitted that there is no very rigid distinction between fact and law so that a grave error in the assessment of fact would be regarded as "erroneous in point of law". A number of cases were cited by both sides on this question. I do not regard any of them as supporting the proposition contended for.

In Bracegirdle v. Oxley [1947] 1 AER 126, a divisional court in England heard a case stated from magistrates who had acquitted on the basis that a charge of dangerous driving required actual, and not merely potential, danger to the public. In fact, this point has been decided adversely to the defendant in two previous High Court decisions. In the judgment of Lord Goddard C.J. it is stated:-

"If justices persist in disregarding decisions given previously by this Court on a set of facts which cannot be distinguished from the facts which are before the Justices in any particular case, they are guilty of a grave dereliction of duty, because it is their duty to obey the rulings of this Court".

The case, therefore, seems to have been one of deliberate refusal to apply binding decisions of the Superior Courts, which is unquestionably an error of law.

Many cases establish the proposition that a decision which is come to wholly without evidence to support it may be quashed by certiori. A classic Irish decision in this area is State (Creedon) v. Criminal Injuries Compensations Tribunals [1988] IR 51. As appears from that case, the test is whether the decision impugned was at variance with reason and commonsense. That such a decision is invalid is undoubtedly a legal proposition, and a true one. But the question of whether in any particular case a decision to acquit is of that nature is a factual one which does not give rise to any "question of law". In this respect it is to be distinguished from a decision to convict because, as was held in The State (Turley) v. O'Floinn [1968] IR 245, per O'Dálaigh J. "The question of whether there is sufficient evidence in law to support a conviction is not a question of fact but a question of law". This is so because the ingredients of an offence are always known as ascertainable and the question of whether there is evidence to support the existence of each of them is a wholly legal question. But if the question raised related not to the existence of evidence, but to its credibility or to inferences of fact which could reliably be drawn from it, that would be a question of fact.

A useful method of approaching the question of whether a particular issue, in a criminal case, is a matter of fact or of law, is to ask whether, if the case were being tried by judge and jury, the issue would be one for the judge or for the jury. In this case, it is hard to deny that the question of whether the defendant had drunk alcohol after driving but before the urine test, and what the effect of that alcohol was or might have been, would have been one for the jury. Moreover, since the evidence that he had drunk alcohol emerged in the course of the prosecution case and was not "evidence given by or on behalf of the defendant" the presumptions provided in s.20 of the Road Traffic Act, 1994 are not triggered. Accordingly the defendant had no onus to discharge.

Decision on the first question.

It therefore appears to me that the learned District Justice was indeed obliged, on being asked to state a case, first to satisfy himself as to whether a point of law within the meaning of s.2 of the Act of 1857 arose as a ground of his decision in the case. It appears that this issue was not addressed, though the contrary impression may have been created by the service on the respondent of the notice requiring the case stated and the case itself in unsigned form, for the reasons discussed above.

The Constitutional Issue – mootness of other questions.

Since there is no evidence that the learned District Judge has considered whether any question of law arises in his decision to acquit, it might be thought moot or premature to consider the other questions raised. It may be, indeed, that he has had no sufficient opportunity to do so, since it seems that Mr. Fitzgerald's proceedings were issued before any case was in fact stated in the circumstances just mentioned. I have concluded, however, that since the service of the notice requiring a Case Stated in itself has a statutory effect, that of "suspending" the determination of the District Court in favour of Mr. Fitzgerald, such service is sufficient to confer upon him locus standi to raise the issue as to whether there are relevant provisions of the Act of 1857, which the notice invokes, have been carried forward by Article 50 of the Constitution. For the reasons given by the learned Chief Justice I would conclude that those provisions have indeed been carried forward. I do not believe it is appropriate to express any other opinion on this case at this time, in the absence of a case actually stated by the learned District Judge, or a refusal by him to state a case. I regard the three remaining questions which arose during the hearing as moot or premature.

No point of law appears in the draft case stated as part of the "grounds" of the decision. If the acquittal was based wholly on factual matters – for example the failure of the prosecution to prove the elements of the offence beyond reasonable doubt – the learned District Judge will no doubt decline to state a Case. If his decision is grounded on a point of law he will no doubt say so, and state a case. I have found that it is a necessary precondition to a Case being validly stated that the District Judge must consider the issue of whether a "question of law" arises at all and this does not seem to have occurred. Until a case is properly stated the remaining points, other than the Constitutional point, in this litigation appear moot. In particular I would regard it as premature to express any view at all on the issue of whether the questions which would arise out of the draft Case Stated are "questions of law", or are capable of being regarded as frivolous. It is for the District Judge to say whether his decision involved a question of law and if so to "set forth the facts and grounds of [his] determination". It is not possible to infer or imply what those grounds were from an ex parte draft document.

Conclusion.

For the reasons set out above I would consider and determine the first issue raised by the Court and the Constitutional issue raised in these proceedings, and those only.

For the reasons given by the learned Chief Justice I would allow the appeal and set aside the order of the learned trial Judge.