BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. These are proceedings for certain Orders of Certiorari and Prohibition arising out of a number of summonses issued by Limerick District Court against the Applicant. As the principal point being made by the Applicant relates to the actual issue of these summonses by a District Court Clerk, it is necessary to detail the procedures which took place in relation to each summons.

2. The first summons relates to six offences under the Licensing Acts alleged to have occurred on 23rd October, 1994 at licensed premises in Limerick, in respect of which the Applicant was at that time the licensee. The application for this summons was made on 27th March, 1995. The application is on a printed form, which gave the registered number of Garda Carmody, the prosecuting Garda, although it did not in fact state his name. The application was one of a bundle of summonses applied for against different persons, and the application was physically made by and under the signature of a Miss MacNamara, who is a Department of Justice official working in the courts office at Roxborough Road Garda Station in Limerick. The summons was issued by the District Court on 12th April, 1995, but the Gardaí failed to serve the summons, and an application was made to reissue the summons which was done on 16th August, 1995. This was not an application for a new summons, but merely to reissue the existing summons, and was in a very brief form, again only stating Garda Carmody's registered number and not his name. The new summons issued on 16th August, 1995 with a return date of 19th October, 1995.

3. Also in issue are a set of summonses related to four offences alleged to have been committed on 9th January, 1995. A separate summons was issued in relation to each offence. The summons application form was dated 9th May, 1995, and although on the face of it it did not state the name of the prosecuting Garda, but only his number, it was in fact signed by Sergeant Treacy. However, the physical application to the District Court Clerk was again made by Miss MacNamara on 15th May, 1995, and the summonses were issued returnable for 21st September, 1995. These summonses were served on the Applicant, but appear not to have been entered before the court, and in any event an application was made on 25th September, 1995 to reissue the summonses, again on a very brief form, but bearing the name of Sergeant Treacy. It is acknowledged that Sergeant Treacy did not in fact sign this form, but that his name was placed on the application form by Miss MacNamara. The summonses were reissued for 19th October, 1995, the same date as the summons relating to the Intoxicating Liqueur Acts.

4. On 19th October, 1995 all the summonses came before the District Court in Limerick, and the Applicant was represented by his solicitor, Mr. Shaun Elder. On

5. At the hearing on 19th October several Garda witnesses were called and were cross-examined by Mr. Elder solely in relation to the issuing of the summonses. The matter was then adjourned for legal submissions until 24th October, 1995, when submissions were made by Inspector O'Brien on behalf of the Director of Public Prosecutions and Mr. Elder on behalf of the Applicant. There were further brief submissions on 27th October, 1995, and the essence of the submissions on behalf of the Applicant was that Judge Hamill had no jurisdiction to determine the matters. On 27th October Judge Hamill indicated that he did not accept the submissions made on behalf of the Applicant and that the trial should proceed, with evidence to be given with regard to the substantive charges in the summonses. Judge Hamill was asked to give reasons for his decision, but declined to do so at that time, although he did not absolutely refuse to give reasons. Mr. Elder then asked Judge Hamill to state a consultative case for the opinion of the High Court, which the judge declined to do, and the judge adjourned the case until 23rd November, 1995 to fix a date for hearing the substantive complaints.

6. The procedures in relation to a prosecution by way of summons in the District Court are now governed by the provisions of The Courts (No. 3) Act, 1986. Section 1(4) of that Act provides:-

7. Section 1(5) then provides:-

8. Pursuant to the 1986 Act, the District Court (Form of Summonses) Rules, being Statutory Instrument number 23 of 1987, were made. These rules have annexed to them a form of summons, and provide that the summons shall be in this form " or such modification thereof as may be appropriate ". The form provides for the name of the prosecutor, in this case the Director of Public Prosecutions, and for the name of the Applicant for the summons, which in the case of the first summons is stated to be Garda Carmody and in the case of the other four summonses is stated to be Garda Treacy, although in fact he had been promoted to Sergeant at the time of the issue of the summonses. Although the summons must state the name of the Applicant for the summons, there is no provision in either the Act or the Rules for any particular form of application for a summons, nor is there any reference to who must physically make the application.

9. The application is made to a District Court Clerk of the relevant District Court. It is purely an administrative function, seeking the issue of a summons requiring the accused to appear before the District Court on a stated date. While it is issued by the District Court, it is not issued as a judicial function of the District Judge, or indeed of any official in the District Court Office. The status of a summons was dealt with in the Supreme Court in D.P.P. -v- Clein (1983) ILRM 76 at page 77 by Henchy J. who said:-

10. I entirely agree with this passage, and in any event, I am, of course, bound by it. The word " summons" is not used in any esoteric manner in the Courts Acts, it is simply calling upon or summoning the person named to appear in court on a certain date to answer specific charges. The application for the summons is a purely administrative matter, and any formality or informality in such application cannot affect or prejudice the accused. In the present case, the Applicant answered the summons or call, appeared in the court, his solicitor cross-examined witnesses called by the prosecution, and sought a ruling from the District Judge as to the validity of the summons. Furthermore, when the District Judge ruled against the Applicant, his solicitor asked for a consultative case stated. While the Applicant's solicitor undoubtedly put the prosecution on notice that he intended to raise a preliminary point, he did not seek to make these arguments without prejudice to his right to challenge the entire proceedings should the judge decide against him. In my view the Applicant clearly accepted the jurisdiction of the court when he appeared in answer to the summonses, and if he is dissatisfied with the decision of the District Judge, it will be his right, after the entire proceedings have been heard, to appeal to the Circuit Court.

11. While that decides the point in this particular case, I feel that, both in deference to the arguments of Counsel, and because this is a point which could arise in almost any case, I should briefly state my views on the merits of the application. The primary argument made on behalf of the Applicant was that the proper interpretation of Section 1(4) of the Courts (No. 3) Act, 1986 is that, in the present case, the Director of Public Prosecutions must authorise a person to apply for the summons, and that in fact he authorised Garda Carmody in one case and Sergeant Treacy in the other cases, and that there could be no further delegation by the Garda officers of the authorisation given to them by the Director of Public Prosecutions. In my view this is a wrong interpretation of the Section. The application is to be made " by or on behalf of" the relevant prosecutor. The Section does not state what form of direction or authority must be given by the prosecutor, it merely states the application must be made, if not by them personally, then on their behalf. There is no question of the Director of Public Prosecutions having to authorised a specified officer to carry out a specified function, such as frequently occurs in relation to statutory functions. I have no doubt that Miss MacNamara was perfectly entitled to make an application on behalf of the Director of Public Prosecutions in the present case, and furthermore that the summons correctly stated that the Applicant was the relevant member of the Garda Siochana, and not

12. Miss MacNamara. They were the relevant officers in charge of the prosecutions. This does not mean that they must personally attend at the District Court Office, or personally fill in a form of application which is not a statutory form. As I have said, applying for a summons is an administrative act, in respect of which very broad guidelines are contained in the relevant statute and statutory instrument, and in my opinion the Applicant, being the Garda in charge of the investigation in the present case, is perfectly entitled administratively to request some other person physically to attend at the District Court Office, and indeed physically to fill in whatever form is necessary.

13. I have heard evidence from Inspector O'Brien, who was cross-examined on his affidavit, that the form used for the application is one agreed between the Gardaí and the District Court Offices, and that the larger Garda Stations have a courts office attached to them, manned at least to some degree by Department of Justice officials. The routine is that the prosecuting Garda indicates the offences to the Courts Office, which is computerised, and they put the offences on the computer and fill in the application form from the computer. Inspector O'Brien also stated that, certainly in Roxborough Road Garda Station, the individual Garda never personally applies for the summons. While there are of course dangers in over computerisation of a criminal justice system, computerisation and efficiency in administrative matters appears to me to be highly desirable.