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1. These proceedings come before this Court by way of a Consultative Case Stated by District Judge Timothy Crowley pursuant to the provisions of Section 52 of the Courts (Supplemental Provisions) Act, 1961.

2. The Case Stated arises out of prosecutions by the Prosecutor pursuant to the Safety, Health and Welfare at Work Act, 1989.

3. The Prosecutor is a statutory authority established under Part III of the Safety, Health and Welfare at Work Act, 1989 (which I shall refer to as "the 1989 Act"). Under Section 51 of this Act, the Authority is given power to prosecute summary offences under the Act. Offences and penalties are set out under various sections of the 1989 Act in particular Sections 48 and 49. The present prosecutions arise out of an incident which occurred on the 24th February, 1995 at a building site at Avoca Park, Avoca Avenue, Blackrock in the County of Dublin which resulted in the death of one Raymond Parkinson, an employee of Seán Quinn Group Ltd.

4. As set out by the District Judge in the Case Stated, the Prosecutor on the 2nd day of November 1995 applied pursuant to Section 1(4) of the Courts (No. 3) Act, 1986 to the appropriate office of the District Court in the Dublin Metropolitan district for the issue of six summonses alleging offences committed by the Accused contrary to the provisions of the 1989 Act. The said summonses were issued by Muiris Ó Raghnaill, an appropriate District Court clerk, at the District Court Office, Áras Uí Dhálaigh, Dublin. The summonses, which are in the normal form and fully recite the statutory offences alleged, are exhibited with the Case Stated. The summonses were correctly served both by registered post and by personal service on the following day, 3rd November, 1995. The summonses were made returnable to the District Court sitting at District Court No. 31 for the 11th December, 1995. On that day, the District Judge states, the parties appeared before the Court and the proceedings were adjourned until 1st April, 1996, which was the date fixed for the hearing of the proceedings. It appears, although this is not strictly speaking stated by the District Judge, that all parties were aware that the 11th December, 1995 was in the nature of a mere return date, at which a date of hearing would be set and that no substantive hearing would take place on that day.

5. The proceedings came on for hearing before the District Judge on the 1st April, 1996. At the opening of the proceedings, Counsel for the Accused raised a preliminary point on jurisdiction, submitting that the Court had no jurisdiction to hear the matter because no complaint had been made to the District Court pursuant to the provisions of the Petty Sessions (Ireland) Act, 1851 (as amended). Counsel submitted that under the provisions of the 1989 Act, for reasons which will be set out in the course of this judgment, it was not open to the Prosecutor to use the summons procedure provided in the Courts (No. 3) Act, 1986, and that all prosecutions under the 1989 Act had to be effected through the "complaint" procedure set out in the Petty Sessions (Ireland) Act, 1851 (as amended). The District Judge fully sets out the submissions on this point made by Counsel for the Prosecutor and Counsel for the Accused. As these in summary form reflect the submissions made by Counsel in this Court, I shall repeat them here. Counsel for the Accused submitted:-

6. Counsel for the Prosecutor submitted as follows:-

7. By inquiry, the District Judge established that the Prosecutor had indeed used the administrative procedure under Section 1 of the Courts (No. 3) Act, 1986 for the issue of the summonses and had at no time used or attempted to use the "complaint" procedure under the 1851 Act to bring the matter before the District Court on the 11th December, 1995. This is accepted by both parties but it does not of course effect the argument made in this Court by Counsel for the Prosecutor that the bringing of the summonses before the District Court on the 11th December, 1995 was in itself a "complaint".

8. Written submissions on behalf of the Prosecutor were submitted to this Court in accordance with the general practice direction issued on the 25th November, 1993. No specific direction for written submissions had been made by this Court and no written submissions were filed by or on behalf of the Accused.

9. The questions set out by the District Judge in the Case Stated are as follows:-

10. The relevant statutory provisions under the Safety, Health and Welfare at Work Act, 1989 (the 1989 Act) are as follows:-

11. The relevant provisions under the Courts (No. 3) Act, 1986 (the 1986 Act) are as follows:-

12. It is clear from the judgment of the Supreme Court in the cases of DPP -v- Arthur Nolan and DPP -v- District Justice Maura Roche and Paul Kelly reported at [1990] 2 I.R. 526 that the summons procedure under Section 1 of the 1986 Act is valid and effective to vest in the District Court jurisdiction to hear and determine the charge contained in the summons and that the 1986 Act procedure is separate from and parallel to the "complaint" procedure provided for under the Petty Sessions (Ireland) Act, 1851. This is clearly set out in the judgment of the learned former Chief Justice at page 545 of the report:-

13. Section 1 subsection (4) of the 1986 Act provides that the administrative summons procedure set out in the section may be used only " by or on behalf of the Attorney General, The Director of Public Prosecutions, a member of the Garda Siochana or any person authorised by or under statute to prosecute the offence ". It is therefore in general open to the persons listed in the subsection to proceed either by summons under the 1986 Act or by complaint under the 1851 Act. Other persons or bodies wishing to bring a prosecution (e.g. a private prosecution) must proceed by the 1851 Act "complaint" procedure. While I am not aware of any authority on the particular point, it seems to me that by limiting the 1986 Act procedure to those specifically charged by the State with the duty to prosecute offences, the Oireachtas intended to exercise a degree of control through the District Judge, to whom a complaint must be made, overfrivolous, vexatious or other unnecessary prosecutions. I am strengthened in this view by the dictum of the learned Carney J. in the case of Michael Finnegan -v- D.J. Clifford and the Director of Public Prosecutions , an unreported judgment delivered on the 10th November, 1995. Referring to the requirement under Section 88(3) of the Courts of Justice Act, 1924 and the District Court Rules that a summons against a member of the Garda Siochana shall be signed by a Justice of the District Court, the learned Carney J. stated (at page 2 of his judgment):-

14. While the example given by Carney J. is a more powerful one, I feel that the limitation contained in Section 1(4) of the 1986 Act is of a parallel and somewhat similar nature.

15. Leaving all other considerations aside, the Prosecutor in the instant case is " a person authorised by or under statute to prosecute the offence " so that unless it is specifically or implicitly provided to the contrary under the 1989 Act the Prosecutor would have the power to prosecute an offence by means of the administrative summons procedure under the 1986 Act. Counsel for the Accused submits that the 1989 Act makes no express reference to any provision of the Courts (No. 3) Act, 1986 but that express reference is made to summary proceedings under that statute being commenced by way of a "complaint". He bases this argument on the provisions of Section 52 of the 1989 Act, which deals with appeals. It is stated in that section that any person aggrieved by an Order made by the District Court on determining a complaint under this Act may appeal therefrom to a Judge of the Circuit Court. He relies on this use of the word "complaint" to argue that it is implied by the section that all prosecutions under the Act must be brought by way of complaint rather than by way of summons under the 1986 Act. Counsel stressed that statutory provisions giving rise to a criminal offence must be interpreted strictly. He pointed out that the 1989 Act post-dated the Courts (No. 3) Act, 1986 and that as the Oireachtas was aware of the 1986 Act procedure, specific reference to that procedure would have been made if it was the intention of the Oireachtas that it could be used.

16. Counsel for the Accused also submitted that Section 51(3) of the 1989 Act expressly refers to the Petty Sessions (Ireland) Act, 1851 and that this would imply that offences under the Act should be prosecuted under the 1851 Act procedure. Counsel for the Prosecutor, on the other hand, submits that the application of the Petty Sessions (Ireland) Act, 1851 is excluded by virtue of the provisions of Section 51(3) of the 1989 Act.

17. I propose to deal firstly with the submissions made as to the effect of Section 51(3) of the 1989 Act, which is quoted above. This subsection deals, in my view, solely with the time limit for the issue of proceedings. Under Section 10 of the Petty Sessions (Ireland) Act, 1851, a general time limit of six months is set from the date of the alleged offence to the date of the making of a complaint to the District Justice. It has been clearly established by the Supreme Court in DPP -v- Nolan and DPP -v- Roche and Kelly [1990] 2 I.R. 526 that the same general six months time limit applies to proceedings commenced under the Act of 1986, subject to the variation that the time limit of six months runs from the date of the alleged offence to the date of the application for the issue of a summons. This general six months time limit may be varied by statute. (see DPP -v- Nolan (supra)), ( DPP -v- Howard , Barron J. unreported 17th November, 1989), ( DPP -v- Francis Fox , McGuinness J. unreported 7th November, 1996).

18. Section 1(7)(a) of the 1986 Act deals with variations of the six months time limit provided for in statutes passed before the 1986 Act. Section 51(3) of the 1989 Act simply provides for a one year time limit instead of the general six months time limit set by the 1851 Act and carried over to the 1986 Act. Given that the six months time limit is not expressly set out in the 1986 Act, there is no need to refer in Section 51(3) of the 1989 Act to the provisions of the 1986 Act. The Supreme Court judgment in DPP -v- Nolan (supra) was delivered on the 29th April, 1988 and it must be presumed that the Oireachtas was aware by April 1989, when the 1989 Act was enacted, that the 1851 general time limit had been held also to apply to the 1986 Act procedure.

19. It appears to me, therefore, that Section 51(3) deals purely with the extension of a time limit and does not necessarily imply that the 1851 Act complaint procedure must be used. Nor does it expressly authorise the using of the 1986 Act procedure. It is, as one might say, neutral as between the parties in this case.

20. I turn now to the use of the word "complaint" in Section 52 of the 1989 Act. Does this imply that the 1851 Act procedure must be used? Counsel for the Accused submits that the lack of explicit reference to the 1986 Act in the body of the 1989 Act and the regulations made thereunder, taken together with the use of the word "complaint" in Section 52, means that the Oireachtas intended to rule out the 1986 Act procedure. I cannot accept that this is necessarily so. The 1986 Act, as is well known, was enacted to deal with the situation resulting from the judgment of the Supreme Court in the case of The State (Clarke) -v- Roche , [1987] I.L.R.M. 309. It provided a simple administrative method for bringing summary offences before the District Court. It specifically provided that such summonses could be brought by " any person authorised by or under statute to prosecute the offence ". It was enacted to cure the mischief of the practical difficulties in properly bringing a complaint under the 1851 Act. It is a matter of general experience that, since the enactment of the 1986 Act, the vast majority of summonses are issued under the 1986 Act procedure. I entirely share the view of the learned Carney J. when he states at page 10 of his judgment in Finnegan -v- D.J. Clifford and the DPP (unreported 10th November, 1995) that he suspects that the provisions of Section 10 of the Petty Sessions (Ireland) Act, 1851 have " fallen into substantial desuetude since the new procedure has been established ".

21. It therefore seems to me exceedingly unlikely that the Oireachtas would have intended to exclude the provisions of the 1986 Act when providing for the prosecution of summary offences under the 1989 Act.

22. The word "complaint" is used in Section 52 of the 1989 Act in connection with the right of appeal against an Order made by the District Court. Clearly, such an appeal will be brought subsequent to the finalising of the entire District Court procedure. The making of the District Court order is itself evidence that if the 1851 Act procedure was used by the prosecuting authority the District Court at that stage would have determined a "complaint". The question then arises as to whether the District Court would also have determined a "complaint" if the 1986 Act procedure was used.

23. The question as to whether the application for the issue of a summons constituted the making of a complaint within the meaning of Section 10 of the Petty Sessions (Ireland) Act, 1851 was considered by Hamilton P. (as he then was) in the case of DPP -v- Nolan , [1990] I.R. 526. At page 537 of his judgment, he stated:-

24. The judgment of the learned Hamilton P. was upheld by the Supreme Court. It is clear from what is said here by the learned Hamilton P. that, while the complaint is not made at the date of the application for the issue of a summons, it is made when the matter comes for hearing before the District Judge. Therefore, whether the 1851 Act procedure or the 1986 procedure is used, the District Judge has jurisdiction and a complaint is made to him at the relevant point in the proceedings. Under the 1851 Act procedure, the complaint is made prior to the issue of the summons; under the 1986 Act procedure, it is made when the matter comes on for hearing before the District Court. It is obvious that the complaint in either case is made prior to the time when the District Judge disposes of the case and makes his or her order.

25. In referring to the right of appeal from an Order of the District Court, therefore, the use of the word "complaint" does not, it seems to me, exclude the use of the provisions of Section 1 of the Courts (No. 3) Act, 1986 for the issue of a summons. The summonses in the instant case were therefore properly issued and are valid and effective.

26. Having decided the primary issue in regard to the wording of Sections 51(3) and 52 of the 1989 Act, it is not necessary for me to decide the secondary question as to whether the Accused's appearance (through his solicitor) at the District Court on the 11th December, 1995 constituted either

27. Accordingly, the answers to the questions put by the District Judge in the Case Stated are as follows:-

28. The word "complaint" contained in Section 52 of the Safety, Health and Welfare at Work Act, 1989 refers to a complaint made to the District Court pursuant to the Petty Sessions (Ireland) Act, 1851 (as amended) both when the jurisdiction of the District Court is invoked by the making of a complaint to a person duly authorised to receive it and when it is invoked by the operation of the procedure set out in Section 1 of the Courts (No. 3) Act, 1986.

29. It is unnecessary to decide this question.