Supreme Court of Ireland Decisions

 THE SUPREME COURT

JUDICIAL REVIEW

Murray, C.J.                                                                         2006/208 JR

Finnegan, J.

Macken, J.

 

Between/

 

AIDAN READE

                                                                                        Applicant/Appellant

 -and-

JUDGE REILLY AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

           Respondent/Respondents

 

            The issues which arise for consideration in this matter concern the jurisdiction and the role of the first named respondent and/or the District Court, in relation to so called “hybrid offences”, in the present case offences contrary to s.3 and s.15 of the Non Fatal Offences Against the Person Act 1997 (“the Act of 1997”), and the role of the second named respondent as prosecutor of such offences.

Background:

            The context in which these judicial review proceedings were commenced is the following.  The appellant came before Mountbellew District Court, County Galway on the 3^rd March 2005, in relation to two offences for, respectively, assault causing harm contrary to s.3 of the above Act of 1997 and false imprisonment contrary to s.15 or the same Act.  On that occasion the first respondent had outlined to him by Sergeant Moynihan, prosecuting, a synopsis of the case against the appellant, and a medical report was also furnished to the court.  On that occasion also the first respondent, according to the second respondent “indicated that he would accept jurisdiction” in respect of the two charges.  It is said by the appellant that the first respondent “determined that the offences were fit to be tried summarily”.  For the purposes of this judgment I do not consider that the difference in language used by the respective parties is in any way significant.  It is agreed that the District judge considered he had jurisdiction to try the offences.

There were several adjournments and eventually the matter came on for hearing on the 1^st December 2005 at which stage the applicant pleaded not guilty and the first respondent commenced hearing the evidence.  It is common case that during the course of the complainant’s evidence, the first respondent interrupted, saying that he did not consider he had jurisdiction to deal with the matter.  At that point the first respondent requested Inspector Glynn, who was then prosecuting on behalf of the second respondent, for his opinion and the latter indicated that he had been “taken aback by the contents of the statement”.  The solicitor for the appellant then addressed the first respondent pointing out the length of time which had elapsed between the events giving rise to the charges in July 2004 and December 2005 and, in effect, complaining that the respondent was only then indicating he could not proceed with the trial.  Inspector Glynn confirmed, upon inquiry of the first respondent, that the second respondent had directed the matter be disposed of summarily.  The first respondent then requested sight of the medical report and having read the same and considered the matter briefly, said he would continue with the trial, at which point the complainant resumed her evidence.  The first respondent shortly thereafter again indicated that he would not hear further evidence, being of the view that the case did not fall within his jurisdiction.  He thereupon adjourned the matter to the 5^th January 2006 for service of a book of evidence so that a trial could take place before a jury at Galway Circuit Court.

The Judicial Review Proceedings:

            The appellant was granted leave by the High Court to commence these judicial review proceedings in which he sought:  (i) an order of certiorari quashing the decision of the first respondent made on the 1^st December 2005 declining jurisdiction in respect of the charges and remanding the appellant for service of a book of evidence; and (ii) an order of mandamus compelling the first respondent to hear and adjudicate on the charges.  The grounds upon which the appellant obtained leave to seek these two reliefs were the following:

(a)             The first respondent acted without jurisdiction and contrary to natural and constitutional justice and fair procedures in having determined, on the 3^rd March 2005, that the offences were fit to be tried summarily, and having embarked upon the hearing on the 1^st December 2005, arbitrarily and capriciously determined that the matter was not fit to be tried summarily in circumstances where no new information had come to light; and

(b)            That the first respondent acted without jurisdiction and contrary to natural and constitutional justice and fair procedures in directing trial on indictment in respect of these offences in circumstances where he had been in possession of all relevant material and had read the medical reports and statements prior to determining that he did have jurisdiction to hear the matter.

            At this stage it should be noted that in the High Court the appellant sought to argue a further ground, upon which leave had not been granted, namely:

            “That the learned trial judge erred in law in circumstances where the respondent had directed summary disposal, in holding that he could refuse to complete the hearing during the course of which he had formed the view that the offences were non minor and had jurisdiction to send the charges forward for trial in indictment.  In this regard the appellant argues that the determination of whether the offences charged were minor charges fit for summary trial was vested exclusively by statute in the respondent.”   

            In the High Court objection was taken by the second named respondent to the appellant seeking to raise a ground in respect of which no leave had been granted, relying on case law in that regard, but the trial judge nevertheless heard argument in relation to the same.  In this appeal this respondent continues to rely on this objection, but without prejudice to his stance, he has nevertheless dealt with the matter in written and oral submissions.  I am satisfied that the issues to be resolved between the parties centrally involve consideration of the matter on the basis of this ground.  Moreover, there is no cross-appeal in respect of the learned High Court judge’s decision to permit this ground to be argued.  Exceptionally therefore I consider that, although this court is entitled to insist on limiting judicial review proceedings to those grounds in respect of which leave was originally granted, it is appropriate to deal with all issues determined by the trial judge.  Indeed this ground reflects the kernel of the appellant’s case, and raises an important issue which requires to be resolved. 

By a judgment of the High Court (Charleton, J.) delivered on the 26 ^th February 2008, the reliefs sought were refused. 

 

 

The Legal Issues:

            The legal issues which arise for consideration in the foregoing context number two, or possibly three.  The first two are highly technical but very important issues identified by the learned High Court judge and concerning the distinction between minor and non minor offences and how these are to be disposed of by our courts, and the third is based on an issue of fair procedures. I propose to defer considering the latter until after I have dealt with the more technical issues, to which I now turn.

            The first issue is well encapsulated in the grounds of appeal relied on, in the following terms:

            “The learned trial judge erred in law and in fact in finding, in circumstances where the DPP had directed summary disposal of the particular offences alleged against the appellant, that the first named respondent could refuse to complete a hearing during the course of which he had formed the view that the offences charged were non minor offences.”    

           

            The second issue is also found in the grounds of appeal and relates to whether or not the first named respondent had “any jurisdiction to send the appellant forward for trial on indictment as a result of his finding under the first of the matters”.  This second issue is, in reality dependent upon the outcome of the first issue, and only requires to be dealt with if the court finds that the learned High Court judge was correct in his finding on the first issue.

            The learned High Court judge dismissed the judicial review proceedings in stating:

“In this case, the learned District Judge appraised himself of the facts and made a preliminary decision that it was a minor offence.  In hearing the case, the evidence of the alleged injured party caused him to change his mind.  In deciding to discontinue hearing the case and to send it forward for trial to the Circuit Court he acted both properly and in discharge of his constitutional duty to ensure the proper disposal of criminal offences under Article 38 of the Constitution.  I do not equate a perusal of the papers with a plea of guilty.  The District judge was not only at liberty, but was obliged, to change his mind on realising that what was before him could not be disposed of summarily as a minor offence.  This did not require an additional hearing, or a change in the nature of the evidence.  Whereas the applicant, as the accused in that case, may regard it as unfair that his trial was not disposed of when it was listed, the constitutional scheme requiring that non-minor offences be tried before a jury meant that the learned respondent was ensuring, as a judge, that his constitutional rights as a person accused of a crime were upheld.”

 

 

 

The Appellant’s submissions

It is argued by Mr McDonagh, senior counsel for the appellant, that while the position in relation to hybrid offences, such as those in issue here, lacks clarity, nevertheless the learned trial judge erred in holding that when the second named respondent had directed the charges be disposed of summarily, the first respondent was entitled to decline to hear the charges, or indeed to do anything other than dispose of them as the second named respondent had determined.  Secondly, as to the point of principle contended for on behalf of the applicant, counsel submits, there is nothing improper with vesting in the second respondent the exclusive right to determine the venue where an offence is to be disposed of.  As a consequence, a District judge is not entitled to “second guess” a prosecutorial decision on whether a charge is to be prosecuted or disposed of summarily or on indictment. Thirdly, the determination of whether the offences charged were minor offences fit for summary trial was vested exclusively by the Act of 1997 in the second respondent.  The latter’s decision is, therefore, immutable.  In the appellant’s written submissions it is contended:   

            “The statutory provision in issue in this case is different in nature to that considered in the older decided cases in the area.  The Oireachtas has in recent years seen fit to alter the basis upon which summary prosecution can be dealt with in the District Court.  For the most part the accused no longer has a role in agreeing to summary disposal.  Likewise in the new dispensation the District Court judge is no longer required by statute to form a view as to whether an offence is fit to be tried summarily.  Rather the Oireachtas has vested in the DPP the decision as to whether an accused person should have his case heard summarily or upon indictment.” (emphasis added)

           

            Counsel relies, in support of his argument, inter alia, on the decision of the High Court (Geoghegan, J.) in The People (DPP) v Dougan [1996] 1 IR 544, a case stated, in which the learned judge had to consider whether an offence contrary to the Road Traffic Act 1994 was “fit to be tried summarily”, and in which Geoghegan, J. stated as follows:

            “At common law there was no such thing as summary jurisdiction.  Summary jurisdiction can only be vested in the District Court or any other court in relation to criminal offences by a statute.  It follows from that, that the prohibition on trying persons for non-minor offences without a jury contained in Article 38, s.5 of the Constitution is tantamount to a prohibition on the Oireachtas enacting any post 1937 Act making a non-minor offence a summary offence.  But a corollary of that proposition is that it is for the Oireachtas in the first instance to determine whether an offence is a minor offence or not though it may delegate the function to the District Court where it provides for alternative modes of trial.  In Conroy v The Attorney General [1965] I.R. 411, Walsh J. in the course of his judgment says the following at page 436:

            “The Court cannot accept the submission made on behalf of the Attorney General that the only test of what is or is not a minor offence is the test of the punishment it may attract.  The moral quality of the act is a relevant though a secondary consideration.  But between the positions of grave and minimal moral guilt there is a large field which must be left to the discretion of the Oireachtas for consideration as a factor in determining whether to make an offence a minor one or not.  That consideration will be reflected in the punishments which an offence may attract either by the express will of the Oireachtas in an Act or at common law without qualification by the Oireachtas.”

           

                        While I appreciate that that passage in the judgment of Walsh        J. is in     the context of one aspect of whether an offence is minor or not,      that is to say, the moral quality of the act, it indicates a broader       general view that there must necessarily be quite a range of discretion        in the Oireachtas at any given time in considering whether an offence         is a minor offence or not.  Having regard to the general mores of the    community, there may well be legitimate differences of opinion as to    whether a particular offence should be regarded as minor or non- minor.”  (emphasis added)

           

            It is argued by counsel for the appellant that in consequence of this judgment, and of the case cited therein, the question as to whether an offence is minor or non minor is one essentially for the legislature.  Although the legislature can decide to delegate to a District judge the power to decide the issue, it may also delegate this function to the second respondent, and that recent legislative provisions adopt the latter approach in preference to the former.  Counsel further contends that the older cases, cited by the second respondent, are all case in which the court was concerned with indictable offences triable summarily pursuant to s.2(2) of the Criminal Justice Act, 1951, (“the Act of 1951”) and these decisions cannot be considered as entirely relevant. 

The question which arises, he says, is whether a District judge may decline jurisdiction, and if so, whether this is on the basis of an inherent power, or because there is a constitutional right in an accused to a trial by jury for non minor offences, or on other grounds.  Counsel for the appellant argues the District Judge has no inherent power to do anything, other than hear the charges which, at the option of the second respondent, have been prosecuted on a summary basis.

Finally, it is contended on the second issue raised in this appeal, that, even if the appellant is wrong in relation to the foregoing main submissions and the first respondent can properly decline to dispose of the matter, he nevertheless lacks jurisdiction to send the appellant forward for trial on indictment or to direct service of a book of evidence.  If he was entitled or even obliged to decline jurisdiction, he can only strike out the summons, there being no statutory power vested in him to send an accused forward for trial in the circumstances which arose here, or to direct service of a book of evidence.

The second named Respondent’s submissions:

            Ms McDonagh, counsel for the second respondent, invokes the same case of The People (DPP) v Dougan, supra., in support of her argument.  She submits that the learned High Court judge accurately summarised the practice in relation to such offences the following terms:

            “The ordinary interpretation given to sections such as these (i.e. sections 3 and 15 of the 1997 Act) is that the option of trial on indictment or summarily is with the DPP.  Unlike under s.2 of the Criminal Justice Act, 1951, as amended, the accused has no say in the matter.  The reality of what happens is that an official in the Director of Public Prosecution’s office looks at the file and makes an estimate of the maximum sentence the particular offence will attract and then directs summary trial or a trial on indictment.  The case is then processed in accordance with that direction.  I infer that that is what happened here.”                                    

 

            Counsel for the second respondent contends, however, that although this extract correctly reflects the practice in such cases, her client has no role at all in the administration of justice as such, his functions being entirely administrative.  In deciding therefore whether or not to initiate a prosecution, he does not act judicially, relying in that regard on cases such as The State (McCormack) v Curran [1987] I.L.R.M. 225, H v DPP [1994] 2 I.R. 589 and Eviston v DPP [2003] 1 ILRM 178.  On the other hand, the administration of justice pursuant to Article 38 of the Constitution is a judicial role, and is reserved to judges.  Counsel adopts as a correct statement of the law in that regard, the following extract from the judgment of the High Court:

            “The Director of Public Prosecutions conscientiously exercises an administrative function under the Prosecution of Offences Act 1974.  That function includes deciding who is to be prosecuted, for what offence and in which court.  The judicial function, in contrast to that, whether the trial is summary or on indictment, always involves the setting of an effective and appropriate penalty if the accused is found guilty.

            Further, the duty of the District Court in dealing with offences which have a dual mode of trial necessarily involves the court in assessing the facts and the potential penalty that a conviction may attract.  The only way to give effect to Article 38.5 is by the District Court assuming the jurisdiction to ensure that the accused is afforded his or her constitutional right to a trial by jury where, on a judicial assessment of the facts, the charge is not a minor one.”

           

            It is submitted by counsel for the second respondent that if he was entitled to the ultimate choice of venue of trial in relation to offences of the type in question in these proceedings, as is contended for by the appellant, the second named respondent would thereby have a role in determining the parameters of any penalty which might ultimately be imposed, and would in such circumstances, be impermissibly purporting to act judicially.  That respondent does not, she says, argue or contend that the Oireachtas has, in relation to hybrid offences, delegated to him the power ultimately to determine whether or not a charge is minor, with the effect of depriving an accused of his right to a trial by jury in accordance with the Constitution. 

Conclusion:

            Both offences, that is to say the offence contrary to s.3 and that contrary to s.15 of the Non Fatal Offences Against the Person Act 1997 fall into the description “hybrid offences”.  These are well established but relatively recently created offences.  They are creatures of statute, and their essential characteristic for the purpose of this appeal, is that legislation creating them provides that the charges can be disposed of on a summary basis or on indictment.  The Act of 1997 contains a number of such offences and is a good example of such legislation.  Section 3 of that Act is in the following terms:

(1) A person who assaults another causing him or her harm shall be guilty of an offence.

            (2) A person guilty of an offence under this section shall be liable—

            ( a ) on summary conviction, to imprisonment for a term not exceeding 12     months or to a fine not exceeding £1,500 or to both, or

            ( b ) on conviction on indictment to a fine or to imprisonment for a    term not             exceeding 5 years or to both.

           

S. 15 reads as follows:

(1) A person shall be guilty of the offence of false imprisonment who intentionally or recklessly—

( a ) takes or detains, or

( b ) causes to be taken or detained, or

( c ) otherwise restricts the personal liberty of, another without that other's   consent.

(2) …

(3) A person guilty of an offence under this section shall be               liable—

( a ) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or

( b ) on conviction on indictment, to imprisonment for life.  (emphasis added)

 

As will be seen, the offences are not classified at all in minor or non minor terms or indeed in any terms capable of being so classified, but only by reference to the legal penalties to be imposed, which are in turn dependent upon whether the matter is disposed of summarily or upon indictment.  In the present case the precise penalty terms are not particularly relevant save in one respect.  Whereas on summary conviction there is a limited fine and possible imprisonment for a limited term of twelve months in either case, in the case of conviction on indictment for a s.3 offence the maximum sentence is five years imprisonment and a fine, or both.  On the other hand, a s.15 conviction carries a maximum sentence on conviction on indictment of imprisonment for life.  The penalties on conviction on indictment, according to the established jurisprudence, are reflective of offences properly classified as being non minor, an issue dealt with in detail in Melling v O Mathghamhna [1962] I.R. 1, and in Conroy v Attorney General [1965] I.R. 411.

            The issues which arise for consideration in this appeal do so entirely by virtue of the adoption by the Oireachtas of the so called “hybrid offence” in modern legislation.  There has been little case law on these specific offences.  Hybrid offences were also the subject of a recent decision of this court in Robinson v District Judge O’Reilly & The Director of Public Prosecutions (unreported, the Supreme Court, 2^nd July 2009).  In a judgment which I delivered and with which the other members of the court agreed, I dealt briefly with the traditional divide between minor and non minor offences, and between summary offences and indictable offences, as well as with indictable offences capable of being tried summarily provided that certain conditions are met, pursuant to the provisions of the Criminal Justice Act 1951.  These latter offences, although triable summarily, never become summary offences, as is clear from the decision of this court in Director of Public Prosecutions v GG (a minor) (unreported, the Supreme Court, 2^nd March 2009), in which Fennelly, J. in his judgment, with which all members of the Court agreed, traced in detail the relevant case law. Such offences triable summarily, even with the consent of the Director of Public Prosecutions, and even with the consent of the accused, were always subject to the overriding requirement that the District judge was satisfied they were fit to be disposed of summarily, in other words that they were minor offences, and relevant legislation provides an appropriate statutory mechanism for disposing of such offences, either summarily or by sending forward for trial by a jury.  The court in the former judgment also drew attention to the true right of election which existed in the case of certain offences, where an accused could “elect” to be tried by jury. 

            In Robinson v District Judge O’Reilly & The DPP, supra., however, the issue for consideration was firstly, whether or not, in relation to hybrid offences, such as those in the present case also, the Director of Public Prosecution is obliged to “opt” to prosecute on  a summary basis or on indictment within the six month limit provided for by s.10 of the Petty Sessions Act 1851, in the case of the trial of summary offences, and secondly, whether in the case of such hybrid offences, the accused has any right to have a charge disposed of summarily where the DPP opts to proceed on indictment.  The court determined that no such right in an accused exists.  The Court found that the discretion pursuant to the Act of 1997 is vested in the second named respondent to opt to prosecute on a summary basis or on indictment, subject only to the right of the District judge to decline jurisdiction in the case of a non minor offence.  In that case, the question of the Oireachtas delegating any exclusive right to the second named respondent to determine the classification of an offence, did not arise for consideration and was not the subject of any contention or legal debate.  On the other hand it is a central issue in the present appeal. 

            Offences falling within s.2 of the Act of 1997 for “simple” assault are, by the very nature of the language used, triable only on a summary basis.  Equally, an offence under s.4 of the same Act is worded in such a way that it is triable only on indictment. No difficulty arises where an offence is clearly a summary offence.  It is the District Court alone in such a case which has sole jurisdiction (with certain exceptions which are not at all relevant to this appeal) to dispose of the matter.  The same ease of classification applies in the case of a s.4 offence, which is a purely indictable offence.  In general, according to the case law it is probably fair to say that a s.2 offence is a minor offence and an offence contrary to s.4 is a non minor offence, notwithstanding that all the offences, under s.2, s.3 and s.4 are assault offences of one type or another.  A different situation however arises in the case of so-called hybrid offences, such as those under s.3 or s.15 because these are not so self-evidently minor or non-minor offences.  They fall to be considered by reference to the events and facts as disclosed to the second named respondent, and, as the learned High Curt judge found, and by reference to his assessment of the penalty those facts, if established, would likely attract.  On the face of it, if he assesses the facts as likely to attract a sentence within s.3(2)(a) he will proceed to prosecute on a summary basis. 

            It cannot, in my view, however, follow, that an offence which is prosecuted on a summary basis is, ipso facto, a minor offence.  It may well be so in most cases.  On its most crude division, it might be said that once the Director of Public Prosecutions decides to prosecute on a summary basis, it is a summary offence and if on indictment it is an indictable offence. However, although minor offences will generally equate with those which can be disposed of on a summary trial basis, and non minor ones with trials on indictment, it has clearly been recognised by the legislature that this is not always the case.  As Walsh in Criminal Procedure states:

            “It is not possible however to determine whether an offence is serious or minor from its definition alone.  Inevitably there are offences the seriousness of which depends not so much on their definition but on the circumstances in which they were committed.  Accordingly there is a range of indictable offences which statutorily can be tried summarily in certain circumstances.”

 

            The most recognised collection of such offences are those listed in the first schedule to the Act of 1951 (as amended), which does not need to be considered further by this court.  I invoke it as an example of the recognition by the legislature that minor and non minor offences are not definitively determined by reference to a summary of indictable classification.  In that particular legislative example indictable offences, ordinarily considered to be non minor, nevertheless encompass a sufficiently large range of events that some, at least, can properly be classified as minor offences, and so triable on a summary basis, provided certain conditions are met.

            It seems to me that the applicant’s argument proceeds on a misunderstanding of the respective roles of the second named respondent and of the District Judge in relation to hybrid offences.  By virtue of their being identified as “hybrid” offences, they lend themselves to being either minor or non minor offences. The appellant considers that, in law, it is essentially for the Oireachtas to decide whether or not an offence is a minor or a non minor offence, a proposition which cannot not be gainsaid, at least “in the first instance”, as was stated by Geoghegan, J. in The People (DPP) v Dougan, supra.  The appellant’s argument also proceeds on the basis that the Oireachtas is entitled to delegate the power to decide that issue of classification to a District judge, but, significantly, that it may also delegate that function, and has done so, to the second named respondent, on an exclusive basis.  When it does so, as here, in the case of a hybrid offence, and the second respondent opts to proceed in one way or the other, that is the end of the matter, and, it is said, where the second named respondent has opted to proceed on a summary basis, the District Judge has no function or power to decide otherwise.  As is stated above, in the case of hybrid offences, the Oireachtas does not itself classify them at all, either under s.3 or s.15 of the Act of 1997, or in the case of any other hybrid offence.  At the opposite end of the scale to that covered by the Act of 1951, the scheme of the Act of 1997, classifying the offences, as it does, by reference to the possible range of penalties imposable on conviction, recognises that the hybrid offence may also cover a very wide ambit of severity of facts, from those which clearly constitute a patently minor offence, to facts which constitute a very serious, non minor offence, as well as everything in between.  The scheme of the Act provides that, depending on the view of the second named respondent of the facts giving rise to the offences, he opts to prosecute on one basis or another.

            The contention on the part of the appellant appears to conflate the decision of the second respondent to opt to prosecute on the basis of his assessment of the facts giving rise to the offence, with the classification of an offence as a minor or non minor offence.  Firstly, the appellant equates an exercise of his functions, with a determination that an offence is a properly to be disposed of as a summary or indictable offence in all circumstances.   Secondly, it conflates the decision by the second named respondent to prosecute by a particular means, with the judicial decision as to how an offence is to be judicially disposed of.  However on all the authorities, his prosecutorial function is an administrative function only, not a judicial function.  

While the second named respondent can undoubtedly opt to prosecute on one basis or the other, it is not at all evident to me that he is entitled in law to decide exclusively and conclusively, how the offence will be disposed of, nor, by opting to proceed by summary prosecution, thereby to determine definitively that an offence is a minor offence.  It is difficult to see in the language used in the Act of 1997 or in any similar Act under which hybrid offences are created, any intention on the part of the Oireachtas to vest such power in the second named respondent.   Nor am I satisfied that the second named respondent could contend for such power (and he does not), without having appropriate regard for construing and applying the provisions of the Act of 1997 in a manner which complies with the Constitution.

            The judgment of the learned High Court judge, from a jurisdictional point of view, falls squarely within the ambit of the several cited judgments of this court, including the decision in The State (McKevitt) v Delap [1981] I.R. 125 in which the historical development of the summary jurisdiction of the District Court was considered in depth by O’Higgins, C.J.  In that case it was, importantly, stated that the District Court of Justice, on the establishment of the State, became a court of summary jurisdiction only, in relation to criminal matters, pursuant to the Courts of Justice Act 1924, as replaced or amended.   The District Court was also empowered, by the provisions of the Act of 1951, to try indictable offences summarily.  O’Higgins, C.J. helpfully stated:

            “Apart from the transferred jurisdiction of the former justices of the peace and the proscribed jurisdiction in relation to scheduled indictable offences under the Act of 1951, other statutes create particular offences and provide for summary trial; these statutes in so providing, confer additional jurisdiction on the District Court in relation to the new offences which are thereby created.” (emphasis added)

 

            My understanding of that judgment is that it determines that the District Court, as a creature of statute, has only such jurisdiction as is specifically allocated to it by statute.  That jurisdiction can be described in broad outline as comprising (a) the transferred jurisdiction of the former justices of the peace; (b) such jurisdiction as exists in relation to indictable offences scheduled to the Act of 1951; and (c) any specific jurisdiction to try specific offences pursuant to particular statutory provisions.  It has no other jurisdiction of any description to dispose of non minor offences.  The finding of the learned High Court judge also falls squarely within the ambit of the judgments of Henchy, J. in The State (McKevitt) v Delap, supra., when he gave reasons why a District Judge should not hear a case which is a non-minor offence, or should disengage in such a hearing as soon as the facts indicate the true nature of the offence.  In support of his findings, the learned High Court judge also correctly invoked the decisions in State (McDonagh) v O’ hUadaigh (Unreported, High Court, 9^th March 1979) and The State (Holland) v Kennedy [1977] I.R. 193, in concluding that, if on the facts proved or on the hearing details of an offence, it becomes clear to the District judge that it is not a minor offence, he is obliged to discontinue the hearing.

            These conclusions were correctly arrived at on the basis that the jurisdiction of the District Court in criminal matters is confined by statute to the trial of minor offences only.  

Although counsel for the appellant suggests, correctly, that all the cases referred to and relied upon by the second named respondent are cases involving s.2(2) of the Act of 1951, it seems to me that that is not an entirely relevant factor, since the citations are those intended to establish only (a) that the jurisdiction of the District Court is purely a summary one, and (b) that in the case of non minor offences outside its jurisdiction, it must decline jurisdiction.  Further, this criticism of the invocation of such case law does not in any event resolve the issue.  Although these earlier cases frequently concerned indictable offences triable summarily pursuant to the Act of 1951, the statements relied on concerning the limited nature of the District Court’s jurisdiction are wholly applicable to the present appeal.  On the other hand, it is  necessary to approach to the interpretation of the Act of 1997 in a manner which is consistent with the Constitution by finding, as is the case, that the second named respondent seeks to prosecute, on a summary basis, only those offences which are properly within the jurisdiction of the District Court, that is to say, minor offences.

            When the second named respondent is given the power by statute to opt to prosecute on a summary basis or on the same facts, on indictment, it cannot follow that the District judge thereupon becomes redundant vis a vis the court’s jurisdiction.  Nor in my view is there any suggestion whatsoever in the relevant legislation that the jurisdiction of the District Court to try purely minor offences has been altered in any way.  It does not have any jurisdiction to try even an indictable offence except where legislation confers a particular power to dispose of such an offence summarily, as is clear from the judgment in The State (McKevitt) v Delap, supra.  Even in such a case, the facility to do so is subject always to the District Judge declining jurisdiction where he is satisfied the offence it is not a minor one.  He has no other jurisdiction in relation to non minor offences.  If the evidence discloses, either prior to the trial or during the trial, that the offence is a non minor offence, the District court is not entitled, for the above reasons, to try such an offence.  Once that is the case, the District Judge has no actual or inherent jurisdiction to dispose of non minor offences and is obliged, of his own motion, to decline jurisdiction in respect of any such offence.  As was stated by McCarthy, J. in Feeney v District Justice Clifford [1989] I.R. 668 relied upon by the learned High Court judge:

            “I would endorse these views as so expressed but point out that they are confined to cases where a district justice, having come to the immediate opinion that the facts alleged constitute a minor offence or minor offences, may later change his mind on hearing the facts in more detail.  If he does later conclude that the facts proved takes the case out of the category of minor offence, then he must discontinue the summary trial [and proceed in accordance with the provisions of the Criminal Procedure Act 1967].”

 

The limitation, it will be seen from the above, is twofold:  Its jurisdiction since the foundation of the State, founded in statute, is limited to that of a court of summary jurisdiction.  By necessary consequence, it has no jurisdiction, or competence, as it is sometimes called, to hear or determine any non minor offence. Secondly, any jurisdiction conferred by statute to deal with a non minor offence may be subject in a particular case to the limitations imposed on the exercise of that jurisdiction having regard to provisions of the Constitution in respect of a non minor offence.  If a statute purported to confer jurisdiction on the District Court to try a non minor offence, such a statute, while binding on the District Court, would be open to being declared invalid in separate proceedings before the High Court challenging its constitutionality.  It seems to me, however, that the key matter for determination in this appeal is the issue of the actual jurisdiction of the District Court. 

             The learned High Court judge correctly analysed the nature of hybrid offences, the administrative role which the second respondent exercises exclusively when he opts to prosecute on a summary basis or on indictment, and the correct, but very different, judicial obligation on the District Judge to decline jurisdiction in respect of a hearing of non minor offences, having regard to the limited jurisdiction of the District Court.  Indeed the logic of the appellant’s argument would mean that on the 3^rd of March 2005 objection should have been taken to the first respondent reading the statements in the book of evidence, or even hearing any synopsis of the case from Sergeant Moynihan, or considering the medical report handed to him, because on the appellant’s argument, at that point the District Judge had no function at all to make any determination that the offences contrary to s.3 and s.15 of the Act of 1997, were offences which were “fit to be tried summarily” as the appellant agrees did in fact occur.  A summary trial of the charges would simply proceed before the District Judge, the second respondent having exclusively determined the venue in which the offence, as classified by him, should be determined.

            I am satisfied for the foregoing reasons that the decision of the learned High Court judge refusing to grant judicial review quashing the decision of the District judge to decline jurisdiction in the present case was correct.

            I now turn therefore to the second issue.  It will be recalled that on the second issue, counsel on behalf of the appellant contended that even if the District judge was entitled to decline jurisdiction, on one or other of the above grounds, nevertheless the District judge, had no statutory power vested in him in such circumstances to send forward an accused to the next sitting of the Circuit Court, and did not have any power to adjourn the matter for service of a book of evidence, as he did.

            Under the provisions of the Act of 1951, the District judge is vested with a statutory power, once he has concluded that an indictable offence is not apt to be tried on a summary basis, to send an accused forward for trial and direct the service of a book of evidence.  Analogous statutory provisions exist in relation to similar offences where created by other legislation of a similar nature.  This flows from the natural logic of any statutory scheme for the disposal of indictable offences on a summary basis, and from specific statutory provisions vesting such powers in the District judge.  Different considerations arise in relation to hybrid offences, where no such specific power is provide by statute. I have been unable to find any statutory general power vested in the District Court or in a District Judge, which permits any equivalent order to be made in the case of non minor hybrid offences where the District judge has properly declined jurisdiction, and no such statutory power was drawn to this Court’s attention by counsel on behalf of the second named respondent.  Although all the academic writings, including Walsh on Criminal Procedure, and Woods on District Court Practice and Procedure in Criminal Cases, as well as the Report of the Working Group on the Jurisdiction of the Courts state that the District judge must send an accused forward for trial if he considers the offence, in the case of a hybrid offence, not to be a minor offence, it is not at all clear on what basis this is stated.  While the case of Cumann Luthchleas Gael v Windle and another (unreported, Supreme Court, 22^nd June 1993) is cited as supporting this latter contention by one of the authors, a consideration of that case makes it clear that, although there were hybrid offences provided for under the Act in question, the sending forward was by reference to an indictable offence triable summarily under another specific provision of the same Act.  I do not consider, therefore, that it is of assistance in resolving the issue.

Since the District Judge is obliged to decline jurisdiction, there is clearly an actual power vested in him to strike out the proceedings, as the appellant contends, as being the only consequence which can flow from the determination that the offence is not a minor offence.  I am of the view that, in the absence of a statutory power to do anything further, this is the correct conclusion.  It does not, of course prevent the second named respondent from commencing proceedings again in respect of the offence, on an indictable basis. 

Fair Procedures:

Counsel for the appellant has contended that even if he is wrong in his argument on the above alleged altered role of the second respondent and the consequences of that for the District Court, as a court of summary jurisdiction, there was a breach of fair procedures, based on the following argument: (a) Firstly, the determination of whether or not an offence is fit to be tried summarily must be based on the anticipated evidence and amounts to a judicial determination of that fact by the first respondent, subject only to new circumstances coming to light; (b) it would be contrary to fair procedures if it were otherwise as the accused would be “in the dark” in relation to the reality of his trial before the District Court up to the point of conviction or acquittal; (c) he would not in fact know if his trial was really his trial all until its conclusion; (d) such an eventuality would have to remain constantly in the mind of defence lawyers as they call evidence and cross-examine prosecution witnesses; (e) an elaboration of testimony and cross-examination could well lead to an accused being suddenly required to face an entirely different prospect in the Circuit Court.  None of the foregoing could constitute unfair procedures.  The issues are not procedural.  The trial takes place in the District Court in due course of law.  If, because it transpires that the trial must be stopped because the District Judge correctly concludes that the District Court has no jurisdiction on account of the offence being a non minor one, the District Judge is doing what the law requires him to do for the reasons stated above and as stated by Henchy, J. in The State (McKevitt) v Delap, supra., and as endorsed by this Court in Feeney v District Justice Clifford, supra.  It may appear to the defendant to be a negative step, but what the Court is doing is ensuring that if an accused is to be tried, he is tried in accordance with due process of law, which inures to his benefit.

            I would affirm the order of the High Court that the first named respondent was correct in law in declining to hear the charge against the appellant on the basis that the events in question comprised a non minor offence in respect of which the District Court had no jurisdiction.  I would grant a declaration that the District Judge does not have power to adjourn the matter for service of a book of evidence.