THE SUPREME COURT
[Appeal No. 264/2011]
MacMenamin J.
Laffoy J.
O’Malley J.
SHARON BUCKLEY
APPELLANT
AND
DISTRICT JUDGE HAMILL AND SUPERINTENDENT OF AN GARDA SÍOCHÁNA OF LUCAN GARDA STATION
RESPONDENTS
JUDGMENT of Ms. Justice Iseult O’Malley delivered the 19th day of July, 2016
Introduction
1. This appeal primarily involves the question whether the respondent District Judge properly reissued certain “stale” committal warrants, originally issued on foot of the failure of the appellant to pay fines imposed in respect of a number of Road Traffic Act convictions. The orders reissuing the warrants were made on the 12th August, 2008, and the 28th September, 2009. It was intended by the officer responsible for them, to the knowledge of the appellant, that they would be executed in January 2010, a move that was forestalled by the application for leave to seek judicial review. The reliefs sought, primarily orders of certiorari in respect of the reissue of the warrants, were ultimately refused in the High Court.
2. It should be noted that the events in question predate the coming into force in January of this year of the Fines (Payment and Recovery) Act 2014 and the associated regulations and District Court Rules. However, while the legislative provisions under consideration in this judgment are now to be read subject to that Act, they have not been repealed.
Background facts
3. The case involves 12 warrants in total, all of which relate to minor road traffic matters. The total amount imposed by way of fines was €4,600. In each case a period of imprisonment was ordered in default of payment. It is accepted that the appellant did not attend court and was not represented in respect of any of the charges.
The first set of warrants
4. The five charges underlying these five warrants were dealt with in the District Court on the 16th May, 2007. The appellant was convicted and fined in respect of each offence.
5. The fines were ordered to be paid within 28 days, with 28 days imprisonment in default of payment.
6. It is common case that the fines were not paid. The five warrants of execution, committing the appellant to prison in default, were issued by the District Court on the 19th October, 2007. Some ten months later, on the 12th August, 2008, they were reissued by the first named respondent for a further period of six months from that date.
7. These warrants were again re-issued by the first named respondent on the 28th September, 2009 - approximately thirteen months after the first renewal.
The second set of warrants
8. The second set of warrants concerns six offences which were dealt with in the District Court on the 7th August, 2007. Again, fines were imposed, with a period of 90 days to pay and five days imprisonment in default.
9. The six warrants of execution issued on the 10th January, 2008, two months after expiry of the time to pay. They were reissued by the respondent on the 12th August, 2008, some eight months after originally issued. They were again re-issued by him on the 28th September, 2009, some 13 months after the first renewal.
10. The last warrant relates to an offence committed on the 18th November, 2007. It was dealt with in the District Court on the 11th December, 2008. A fine of €150 was imposed, to be paid within 30 days, with five days imprisonment in default. The fine was not paid within that time.
11. The warrant of execution issued on the 30th March, 2009, and was reissued by the respondent on the 28th September, 2009. In contrast to the manner in which the other warrants were dealt with, this renewal took place before the date upon which the warrant would have expired.
12. On the 3rd November, 2009, the appellant’s solicitor sent a cheque for €150 in respect of this warrant but it was returned by the garda dealing with the matter.
The statutory context
13. Until 1991 the time within which committal warrants for non-payment of penal sums in respect of criminal convictions had to be issued was prescribed by s.23 of the Petty Sessions (Ireland) Act, 1851. This provision required that such warrants be issued directly upon expiry of the time fixed for payment of the fine, or at the latest on the next court day after such expiry.
14. The Courts (No.2) Act 1991 is, in effect, a single-section Act. Section 1 provides in relevant part as follows:
1.—(1) Subject to subsection (2) of this section, in all cases of summary jurisdiction whenever an order has been made, upon the conviction of any person for an offence, for the payment of a penal sum or the performance of a condition and the penal sum has not been paid or the condition has not been performed, a warrant of committal to imprisonment for the non-payment of the penal sum or the non-performance of the condition may be issued by a justice of the District Court—
(a) not later than six months from the expiration of the time fixed by the said order for the payment of the penal sum or the performance of the condition where—
(i) the said order was made after the passing of this Act, …
(b) (Omitted)
(2) This section shall apply notwithstanding either -
(a) the references in section 23 of the Petty Sessions (Ireland) Act, 1851, to the times for the issue of any warrant, or
(b) (Omitted).
15. Section 32 of the Petty Sessions (Ireland) Act, 1851 deals with certain aspects of the power to issue warrants to levy penal sums by way of distress and warrants to commit to gaol in default of payment. Section 33 continues as follows:
“Whenever the person to whom any warrant shall be so addressed, transmitted, or endorsed for execution shall be unable to find the person against whom such warrant shall have been issued, or his goods, as the case may be, or to discover where such person or his goods to be found, he shall return such warrant to the Justices by whom the same shall have been issued within such time as shall have been fixed by such warrant (or within a reasonable time where no time shall have been so fixed), and together with it a certificate of the reasons why the same shall not have been executed; and it shall be lawful for such Justice to examine such person on oath touching the non-execution of such warrant; and to re-issue the said warrant again, or to issue any other warrant for the same purpose from time to time as shall seem expedient.”
16. Both the Act of 1851 and O. 25 r. 9 of the version of the District Court Rules applicable in this case provide that if the person has lodged an appeal and has entered into a recognisance, a warrant of execution is not to be issued pending either the outcome of the appeal or a breach of the recognisance.
17. Order 26 r.11 deals with unexecuted warrants of this type. Mirroring the language of s. 33 of the Petty Sessions Act it provides that where a warrant is addressed, transmitted or endorsed for execution, to any person
“and he or she is unable to find the person against whom the warrant has been issued or to discover where that person is or where he or she has goods, such person having the execution of the warrant shall return the warrant to the Court which issued the same (within such time as is fixed by the warrant or within a reasonable time, not exceeding six months where no time is so fixed) with a certificate (Form 26.4, Schedule B) endorsed thereon stating the reason why it has not been executed, and the Court may re-issue the said warrant, after examining any person on oath if the Court thinks fit so to do concerning the non-execution of the warrant, or may issue any other warrant for the same purpose from time to time as shall seem expedient.”
18. The prescribed form in Schedule B is headed “Certificate As To Non-Execution of Warrant”. It requires the person to whom the warrant was addressed to complete the following statement:
19. The renewals of the first and second sets of warrants on the 12th August, 2008, were apparently obtained on foot of an application by Garda Michael O’Keeffe. Garda O’Keeffe’s certificate, as completed, reads as follows:
“I certify that after diligent search and for the following reasons, namely:
Sharon Buckley applied to the Courts on the 8th May to have these cases appealed. It would appear that she did not go ahead with the appeals.
I request that the warrants be re-issued as they are out of date.
the person against whom the within warrant was issued cannot be found.”
20. The evidence in relation to the appeals referred to by Garda O’Keeffe (who is now retired and has not sworn an affidavit) is not entirely clear. It is deposed by the applicant’s current solicitor in the grounding affidavit that Garda O’Keeffe contacted the applicant about the existence of warrants “probably in Spring of 2008”, and that she then filed an application to extend time to appeal, but that she was unwell on the date assigned for the hearing of the application and did not attend court.
21. On behalf of the respondents, three District Court ex parte dockets have been exhibited. They were signed by the applicant in October and November 2008, and seek extensions of time in which to apply to have convictions set aside on the grounds that she did not receive notice of the relevant summonses or hearing dates. However, as the respondents point out, it is clear from the dates of conviction referred to in the documents that these applications do not relate to the matters with which the Court is now concerned.
22. Neither party has exhibited any document, or appears to have any concrete information, in relation to any appeal (or application to extend time within which to appeal) lodged on or about May, 2008.
The evidence relating to the second renewals
23. The application for renewal of all of the warrants on the 28th September, 2009, was grounded upon three certificates of Garda Michael Rowland dated the 20th August, 2009. One reads as follows:
“I certify that after diligent search and for the following reasons namely:
Sharon Buckley lives at 18 Loughnamona Park, Leixlip, Co. Kildare with her new partner [name of partner inserted here] and two small children. She is aware of the penal warrants that exist at Leixlip Station for her and wants them executed against her. I have received assurances both from her and her solicitor that if the warrants are re-issued she will give herself up to the Gardaí. [Details relating to the solicitor were inserted here.]
the person against whom the within warrant was issued cannot be found.”
24. Another is in the following terms:
“I certify that after diligent search and for the following reasons, namely:
Sharon is aware of the penal warrants that exist for her at Leixlip Station. She (+ her solicitor Charles Kelly) have assured me that when the warrants re-issue she will give herself up to the Gardaí to have these warrants dealt with + executed against her. [The solicitor’s phone number was inserted here.]
the person against whom the within warrant was issued cannot be found.”
25. The third certificate is in almost identical terms to this one.
26. Garda Rowland deposes that he took up post as warrant officer in Leixlip garda station in August 2009, after the retirement of Garda O’Keeffe, and he has dealt with the warrants in question since then. It is agreed that he called to the applicant’s home in or around this time to discuss the matter with her. The applicant says that she asked if she could pay the fines by instalments of approximately €100 per week, but that he told her he doubted that she would be able to keep up such an arrangement. She says that he told her that he would get back to her about the proposal but that she did not hear from him again until November, 2009.
27. Garda Rowland says that the instalment proposal was made in November 2009, and that he explained at that time that he could not accept partial payments.
28. In the meantime the applicant’s solicitor, Mr. Kelly, made contact with Garda Rowland. On the 30th September, 2009, he requested copies of the warrants, which, as already recorded, had been renewed on the 28th September, 2009. Copies were sent on the 30th October, 2009.
29. On the 3rd November, 2009, Mr. Kelly sent a cheque in the sum of €150 to Garda O’Keeffe. The covering letter referred specifically to the final warrant, which had originally been issued on the 30th March, 2009, and which related to a fine of €150. The copy warrant as exhibited bears a handwritten annotation “Fine paid 03/11/09” but the words “Fine paid” have been crossed out. Garda Rowland returned the cheque on the 20th November with a letter in which he stated:
“Sharon feels that attending Mountjoy (female prison) might be a better solution to her dilemma. Many thanks and I will keep in touch and inform you of any action I take regarding these penal warrants.”
30. Garda Rowland deposes that he has “no particular recollection” of writing this letter. He states that the reason he returned the cheque was because he required a total payment of €4,600 and the sum of €150 was insufficient.
31. Mr. Kelly sent a separate letter on the 3rd November, 2009, in which he asked what evidence had been laid before the respondent on the 12th August, 2008, and the 28th September, 2009, to justify the re-issuing of the rest of the warrants, and what attempts had been made to execute them. He requested this information as a matter of urgency. A follow-up to this letter was sent on the 14th January, 2010, referring to certain High Court judgments. There does not appear to have been any reply to this correspondence.
32. Mr. Kelly says that he referred the applicant to her current solicitor on the 18th January, 2010, for the purpose of taking judicial review proceedings.
Alleged agreement to execute the warrants
33. Garda Rowland deposes that he attended at the applicant’s home on a date in November, 2009 for the purpose of arresting her on foot of the warrants. She expressed anxiety for herself and her family. He offered to let her choose a date prior to Christmas on which to be arrested and lodged in Mountjoy and then, on the basis of what he says was an express promise that she would make herself available after Christmas, agreed not to execute the warrants until then. He spoke to her in January, 2010 and told her that he would arrest her on the 29th of that month. She never referred to the possibility that she would break her promise or that she would seek judicial review.
34. The applicant denies having ever assured Garda Rowland that she would surrender herself to have the warrants executed. She insists that in all her dealings with him she made it clear that she wanted to stay out of prison and was offering to pay by instalments. She had believed that this proposal was still to be discussed in January, 2010.
35. Leave to seek judicial review was granted on the 28th January, 2010.
The Statement of Grounds and Statement of Opposition
36. Ground No. 1 of the statement of grounds reads as follows:
“The impugned order(s) re-issuing the impugned warrants infringe the provisions of the Courts (No.2) Act 1991.”
37. The Act is, as already noted, in effect a single-section Act, and the provisions of that section were set out in full.
38. The other matters pleaded that are still in issue on this appeal are claims that the first named respondent erred in law in re-issuing the warrants without sufficient evidence or reasons for so doing; that he did not have regard to the provisions of O. 26 r.11, in that there was no evidence that the applicant could not be found; that the decision to apply for the renewals was contrary to natural and constitutional justice in that the gardaí had not taken all reasonable steps to execute them; and that the delay in execution was unconscionable and unjustified.
39. The statement of opposition pleads that the appellant is disentitled to relief by reason of delay in seeking leave. This argument was not accepted in the High Court and has not been pursued on appeal.
40. It is further pleaded, and continues to be maintained, that the appellant has been guilty of non-disclosure. The basis for this allegation is the contention that the gardaí held off executing the warrants because, firstly, she was seeking to appeal the convictions and, secondly, because they agreed to execute them at a time convenient to her. It is also argued that she is disentitled because she initiated, but did not pursue, an application to extend time to appeal and then asked the gardaí to delay execution on the basis of an express promise of surrender but instead sought judicial review. This aspect is also said to amount to acquiescence on the part of the appellant.
41. On the merits of the case, the statement of opposition simply denies that the appellant is entitled to relief on any of the grounds pleaded.
Submissions
42. The primary argument made on behalf of the applicant is that there is no general discretion to postpone the execution of a warrant and no general power to renew. Section 33 of the Petty Sessions (Ireland) Act 1851 and O. 26 of the District Court Rules set out the only basis for renewal of a warrant - that the person cannot be found. The garda certificates furnished to the first named respondent did not therefore comply with the statute or the Rules. The applicant relies in this regard upon the Supreme Court decision in Brennan v. Windle [2003] 3 IR 494.
43. It is complained that there is no record of what evidence was before the District Court, and nothing to indicate whether or not the first named respondent made any enquiries as to the whereabouts of the applicant. It is submitted that the renewal of a warrant is the administration of justice, involving a decision that exposes persons to arrest where they would not otherwise be so exposed. Equally, it is open to a judge to refuse to reissue on grounds of fairness. In the circumstances the applicant should, as a matter of fair procedures, have been put on notice of the application to renew. The judgments of MacMenamin J. in Daly v. Judge Coughlan [2006] IEHC 126 and Hedigan J. in O’Rourke v. Judges of the District Court & Ors. [2009] IEHC 309 are cited as authority for this proposition.
44. The applicant makes an alternative, discrete argument in relation to the 1991 Act, whereby it is argued that it embodies a legislative policy that a person cannot be required to serve time in prison if the warrant is not issued within six months. Since, it is said, the authorities on the topic make no distinction between the issue of a warrant and its subsequent reissue or renewal, the issuance of a second warrant after six months must also be taken to be precluded. It is accepted that this argument depends on a finding by the Court that s. 33 of the Petty Sessions Act 1851 has been implicitly repealed.
45. The third issue relates to the final warrant. It is argued that imprisonment only results if the fine is not paid before execution of the warrant, and this fine was paid. The appellant is therefore said to be entitled to relief in relation to this warrant ex debito justitiae.
46. The respondents maintain that Ground No.1 in the statement of grounds is unclear and that the argument made on foot of it has not been pleaded. It is pointed out that there is no reference either to s.33 or to the twelfth warrant in the statement of grounds. Still less was there any claim made that the Act of 1991 prohibits the renewal of a summons after six months.
47. It is submitted that s.33 of the Act of 1851 does not create a test for the renewal of a warrant. The only issues in any case are whether or not the conviction stands and whether or not the fine has been paid. The discretion not to renew, if it exists, is very limited. Section 23 deals with the issue of a warrant, without setting out a test, and s.33 simply sets out the manner of renewal.
48. Emphasis is laid on the fact that the Court may, in accordance with the Act of 1851 and the Rules, issue any other warrant “from time to time, as is expedient” - the purpose, it is argued, is to ensure that the Court retains full jurisdiction to compel compliance with its own orders. Counsel submitted that, having regard to the authorities, any default on the part of the gardaí in executing warrants in a timely fashion cannot affect this jurisdiction.
49. Counsel accepts that the cheque for the twelfth fine should not have been returned. The garda was under the impression that it was part of an effort to pay by instalments, but the money could be sent again at this stage. It is submitted that the ex debito justitiae principle is no longer good law in this jurisdiction, having regard to the decision of the Supreme Court in A. v. Governor of Arbour Hill Prison [2006] 4 IR 88.
50. The respondents accuse the applicant of lack of candour in relation to the true reason why the warrants were not executed, saying that she has sought to give the impression that it was because the gardaí were dilatory rather than because they were trying to facilitate her. She is also accused of non-disclosure on this aspect and in relation to the fact that she had made more than one application to extend time.
Discussion of the allegations of non-disclosure, bad faith and acquiescence
51. This case, like most judicial review proceedings, was dealt with on the basis of affidavit evidence.
52. The allegations of non-disclosure, bad faith and acquiescence are based on certain evidence from Garda Rowland which is disputed on affidavit by the applicant. The main area of disagreement is whether or not Garda Rowland ever indicated that payment by instalments might be a possible solution, and whether or not the applicant ever gave an assurance that she would surrender herself rather than seek judicial review. One might harbour reservations about aspects of the evidence but since neither side sought to cross-examine on the affidavits, I do not consider it appropriate to make any findings of lack of candour in this regard. It may however be noted that the letter written by Mr. Kelly on the 3rd November, 2009, (which received no reply) cannot be regarded as providing any form of assurance to Garda Rowland that the applicant intended to surrender herself - it is manifestly written in contemplation of a legal challenge to the warrants.
The authorities relevant to reissue of warrants
53. Dealing with the authorities chronologically, the first to be considered is R. (Shields) v. The Justices of Tyrone [1914] 2 I.R. 89. That case concerned an order made in debt collection proceedings. A warrant in execution of the order was issued in September 1907. It appears that the bailiff made no effort to execute it and the creditor had to issue proceedings to require him to return the warrant to court. He eventually did so in June 1908, without any endorsement or certificate to explain the non-execution. The warrants were subsequently re-issued to another bailiff who was similarly inactive. A further order was made in 1911 requiring that bailiff to return the warrant. Again, no certificate was furnished. In March, 1912 the creditor obtained a new warrant from the justices for execution by the police.
54. It was contended, inter alia, that the warrant was bad on the basis that s. 33 had not been complied with. The issue, as described by the King’s Bench divisional court, was whether the words of the section merely regulated the existing jurisdiction of the Court to make its orders effective. The Court held that the justices had the power to make the execution effective not only by issuing a warrant of execution but, where satisfied that the issue had not been effective, by issuing another warrant. The right of the Court to do so could not be limited to the cases mentioned in the section - if it was, there would be no power to deal with a situation where the person to whom the warrant was addressed had died, or had been forced to destroy the warrant (which the Court described as having been common at the time of enactment of the statute).
55. In The State (McCarthy) v. Governor of Mountjoy Prison (Supreme Court, 20th October, 1967; reported as an appendix to Healy v. Governor of Cork Prison [1998] 2 I.R. 93) the Supreme Court was dealing with challenges to a number of committal warrants. The warrants had been originally issued in June of 1962. They were reissued in February 1965 and again in August 1967. It is not apparent from the judgment whether any certificate or explanation was offered for the non-execution.
56. The then-applicable District Court Rule, rule 78, was for practical purposes the same as the current O. 26. It was argued on behalf of the applicant that the power to reissue could be exercised only if the warrants were returned to the Court within six months, bearing a certificate of the reasons for non-execution. It had also been argued initially that the power to issue a new warrant was subject to the same limitation but this contention was abandoned.
57. Giving the judgment of the Court, Ó Dálaigh C.J. noted that rule 78 was largely a repetition of the terms of s. 33 of the Petty Sessions Act, with the difference being that the Rules required return within six months. Having referred to Shields, he said (at p. 103):
“I accept that r.78 lays a duty upon the bailiff. I think it should also be construed as meaning that a warrant which has not been executed within the time specified (i.e. the time fixed for return by the warrant, or, where no time is fixed, a reasonable time, or, in the latter case, in any event a time not exceeding 6 months) is a stale warrant and cannot be lawfully executed. Before this can be done it must be re-issued; and the re-issued warrant in its turn is also subject to the time limitation stated in rule 78. There is of course the alternative of issuing a new warrant. Is there any good reason for reading the power to re-issue a stale warrant as being limited to the circumstances in which (to use the old terminology) the bailiff has defaulted in making a return in due time and with a proper endorsement? The re-issued warrant comes with the same authority as the original warrant. Clearly a district justice may re-issue an original warrant which has been returned with endorsement within the time specified. Why not also outside such time and independent of whether or not the bailiff has been in default? The purpose of the warrant is to execute the court’s order; the bailiff’s default is a matter between the court and the bailiff, and ultimately between the bailiff and the bailiff’s superiors. But the court’s duty and power to see its orders are executed can be in no way dependent upon the default of a third party. The party against whom execution has not yet been made suffers no hurt: rather has he enjoyed what can be described as an unwarranted respite. A new warrant will be appropriate where the original warrant has been destroyed or lost and also, although not necessarily so, where a new bailiff is chosen. But in all other cases reason and principle, economy and dispatch, indicate that the original warrant should be re-issued. The re-issued warrant with the date of re-issue endorsed thereon is given a new life as from that date of the duration specified in rule 78.
For these reasons I am quite satisfied that the reasoning in Shields is correct, and that the same reasoning is applicable in the case of rule 78. The District Justice’s power to re-issue an original warrant is in no way curtailed by the rule. The rule does impose a duty on the bailiff. It also indicates when a warrant is stale; but it effects no limitation on the power of the court to see that its orders are executed whether by means of a re-issued warrant or a new warrant.”
58. The provisions of s. 33 and the District Court Rules were therefore to be treated as directory rather than mandatory.
59. McCarthy was followed by O’Hanlon J. in The State (O’Hanlon) v. Hussey (High Court, 5th May, 1986).
60. The issue was again dealt with by the Supreme Court in Healy v. The Governor of Cork Prison [1998] 2 I.R. 93. In that case, the applicant had initially been arrested on foot of a stale warrant, approximately 11 months after it had been issued, and the prison governor had refused to take him in. The District Court then reissued the warrant and the applicant was lodged in prison. In the subsequent application made under Art. 40(4) of the Constitution no issue was taken about the delay (which appears to have been attributable to the applicant) and the question was whether the warrant could be validly reissued in the circumstances.
61. The Court made the following observations in the course of its judgment:
“Now it is quite clear that if the person to whom the warrant is addressed is in a position to execute it straightaway, and knows where the accused is, he should execute it as promptly as possible. It is his duty under the general law to make sure that orders of courts are observed. However, if he is unable to find the person against whom the warrant is issued, or has an apprehension that he may have gone abroad (which is what happened in this case), the duty of the gardaí in those circumstances is to go back within a reasonable time, and certainly not exceeding six months, and have it reissued with the hope that it can be executed. If nothing is done within the six months, then the status of the warrant is that it is spent. That was the situation with this warrant when the first purported execution of it took place: it was quite worthless.”
62. Noting that counsel for the applicant had conceded that the District Court could, in the circumstances, have issued a new warrant, the question posed was whether the power to reissue was confined to a reissue within the six months specified in the rule - in other words, whether there was any difference between the principles applicable to the reissue of a stale warrant and the issue of a new one. The Court considered that this question was clearly answered in the negative by the judgment in McCarthy.
63. It may be noted that the judgment makes no reference to any certificate or endorsement in the case.
64. In Brennan v. Windle the applicant had been convicted in his absence and sentenced to a term of imprisonment. He was arrested on foot of the committal warrant about seven months later, but was released on the basis that the warrants were deemed to be out of date. The garda then applied for and was granted a renewal and the applicant was later arrested on the renewed warrant. In his affidavit in the subsequent judicial review proceedings, the garda referred to a certificate that he averred had been produced in the District Court explaining the non-execution but did not advert to its contents. Neither the certificate nor a copy was ever produced and it was said to have been lost.
65. The applicant maintained that he had been available to the gardaí at all times during the six months after the date of conviction, and that they were aware of his whereabouts. It is of particular relevance to the instant case to note that he contended that there was no general right of renewal, and that a warrant could be reissued only if the person named could not be found. Commenting on this latter proposition, Geoghegan J. said that “nobody could quarrel” with it.
66. He then went on to deal with the issue of the lost certificate and stated that the legal position on this aspect was quite clear.
“If the certificate, contrary to what is asserted, never existed, then the reissue of the warrant was invalid and the order should clearly be quashed. There is a clear requirement under the rules that there be a certificate before the judge, to whom the application for reissue is made, certifying the reasons. I have already referred to the wording in the printed form. If, on the other hand, as is asserted, the certificate did exist but neither the original nor any copy either in the custody of the gardaí or on the District Court file or elsewhere can be found and produced, then it was incumbent on the third respondent to produce affidavit evidence to this effect and secondary evidence by such affidavit or another affidavit as to what was in fact originally contained in the certificate. None of that has been done. That being so, the High Court ought to have drawn inferences in favour of the applicant and quashed the reissued warrant on the basis that the applicant had put forward a prima facie unrebutted case that there were no adequate reasons as to why the original warrant could not have been executed within the proper six month period..”
67. The judgment then deals with a suggestion on the part of the respondents that that the applicant had, by his behaviour on a particular occasion, caused a delay in execution. Having discounted the relevance of the incident in question, Geoghegan J. said:
“It cannot absolve the third respondent from his obligation to certify good reason why the applicant could not be found within the six month period.”
68. Hardiman J., whose judgment deals mainly with another issue in the case, agreed with Geoghegan J. on this aspect and added:
“A person who holds a warrant which has expired is not entitled, as of right, to have it reissued, but only on proof of particular matters. The certificate which, the garda says, contained this proof is missing: neither the original nor any copy can be found despite the fact that, if it existed, both the gardaí and the District Court should have had a copy. That in itself might not be fatal but there is a complete absence of secondary proof that the relevant conditions had been met. Here again, the respondents rely on what they say is the presumptive validity of the reissued warrant. The factual averments in the applicant's affidavit state in effect that the preconditions were not met and this is answered only by a reference in Garda McCarron's affidavit to a certificate which, in fact, cannot be produced.”
69. Murray J. agreed with both judgments.
70. There is no reference in the report to Shields, McCarthy or Healy.
71. In Daly v. Coughlan, the garda who had obtained the renewal deposed to having made an application in the District Court. He made no reference to having produced a certificate and gave no evidence as to what information had been put before the District Judge. There was no evidence that the judge had made any inquiries as to the facts of the case. The endorsement by the judge on the warrants recited that they had been renewed within six months of the date of issue when, in fact, there had been a gap of seventeen months.
72. MacMenamin J. ruled that the onus was on the respondents to establish the lawfulness of the renewal. He noted, with reference to McCarthy, that the six months time limit was directory in nature but held, following Brennan, that there was a failure of evidence on the part of the respondents. It was necessary to demonstrate that the District Judge had exercised his jurisdiction lawfully, having regard to the procedural obligations which devolved upon the gardaí and to the fact that the judge was exercising a judicial function. He continued:
“Such a step is to be seen in the context of being a judicial proceeding and is not a mere "rubber stamp" particularly having regard to the fact that the issue of the liberty of a citizen is in question.
73. It was further held that the principle, exemplified in Simple Imports Ltd. v. Revenue Commissioners [2000] 2 I.R. 243, that a warrant should show jurisdiction on its face was applicable. The warrants in question did not refer to any inquiry into the basis for their renewal and carried an incorrect statement as to having been reissued within six months.
74. It is noteworthy that MacMenamin J. observed that there was nothing to suggest that the applicant could not have been put on notice of the proposed application to court to have the warrants reissued. However, the absence of such notification does not appear to have been considered unlawful.
75. In O’Rourke v The Judges of the District Court the explanation given for the three-year delay in execution was that the applicant had not been residing at the address given by him to the gardaí. This was contested by the applicant. The warrants had been renewed on a number of occasions. Hedigan J. held that in the circumstances, which included the fact that the applicant had been stopped by gardaí and had given his name and address nine times during the period in question, the District Judge should not have been satisfied with the explanation. Hedigan J. also observed that the judge had been unaware of an “exceptional circumstance” - that the applicant had demonstrated a significant reform in his life. Had the judge known of this he might, in the proper exercise of his discretion, have refused to reissue the warrants. In the circumstances the reissue was invalid.
Discussion
76. The state of the authorities appears to be as follows.
77. There is no doubt but that a warrant issued within six months of the expiry of the time to pay may be renewed thereafter. Further, all of the authorities seem to agree that the six months laid down in s. 33 is directory rather than mandatory. This position is buttressed by the fact that the section permits the issue of a fresh warrant at any time. The argument made by the appellant that s. 1 of the Courts (No.2) Act 1991 has implicitly repealed the power of renewal contained in s. 33 of the Petty Sessions (Ireland) Act 1851 seems to me to be without substance, and was made without reference to any authority as to when it is proper for a court to find an implied repeal. The purpose of the 1991 legislation was, I think, to relieve the administrative personnel from the obligation to issue the warrant “directly” on the expiry of the time to pay, or at the latest on the next court date.
78. Shields is certainly authority for the proposition that the permissible reasons for renewal are not confined to the one situation mentioned in s. 33 - that is, that the person cannot be found. However, it should be borne in mind that Shields was a civil action and the issue arose from what appears to have been a decision by the civilian bailiffs not to carry out their functions. In those circumstances it is not surprising that the King’s Bench asserted the right of the courts to ensure that court orders are carried out by issuing a new warrant where necessary. Committal warrants, however, must under statute be addressed to the gardaí and it is not unreasonable to expect that the order of the Court to arrest the person concerned will be obeyed.
79. McCarthy and Healy adopt the reasoning of Shields in relation to the status of the six-month period. The issue in McCarthy was the timing of the renewal and there is no reference to the reasons certified for non-execution. Healy is also concerned with timing, and it seems to have been accepted that the applicant in that case had gone abroad and could not have been found at an earlier stage. The Court in Healy stressed the obligation to execute if the person’s whereabouts are known.
80. Brennan v. Windle makes no reference to either Shields, McCarthy or Healy, but it clearly proceeds on the basis that the only lawful reason for renewal is that the person cannot be found, and that it is for the gardaí to demonstrate that satisfactory evidence of this fact is put in proper statutory form before the judge who renews the warrant.
81. Daly v. Coughlan and O’Rourke apply Brennan, and go somewhat further in suggesting that the defendant may have an entitlement to be put on notice of the application to renew, in order to put any relevant considerations before the Court.
Conclusions
82. The key point in the instant case is whether the first named respondent was entitled to renew the warrant where the only circumstance contemplated by s. 33 and the District Court Rules - that the person cannot be found - manifestly did not apply. The certificates placed before the District Court on each occasion made it perfectly clear that the gardaí knew where the applicant was, and that she had not lodged an appeal and entered into a recognisance. At best she may have sought an extension of time in May 2008, although there is no satisfactory evidence of this.
83. In my view the analysis of the Court in Shields should be seen as confined to its facts. The reasons given for extending the scope of s. 33 so as to allow for circumstances such as the death of the bailiff, or destruction of the warrant, have no relevance to the execution of penal warrants by the gardaí. Brennan v. Windle is the modern authority on the execution of such warrants. In finding that it was for the gardaí to prove compliance with the statutory procedure for renewal of a warrant, and that this involved showing that the person could not be found, it is not in conflict with either McCarthy or Healy. The issue did not arise in those cases.
84. Apart from a case where an appeal has been lodged there is no statutory discretion to postpone execution where the whereabouts of the person are known, at the request of that person or otherwise (save perhaps for a limited period in exceptional circumstances). This does not, of course, mean that such warrants may not be executed by appropriate arrangement between the garda and the person concerned.
85. It is, therefore, a prerequisite to the renewal of a warrant that it has not been executed because the person cannot be found. If the Court is not satisfied of that fact it should refuse to renew the warrants. Since that criterion was manifestly not satisfied in this case, it follows that the renewals were invalid.
86. A further, separate, consideration applies to the twelfth warrant. The power to imprison for default in payment of a fine lapses if the fine is paid. It was paid in this instance, and Garda Rowland should not have returned the cheque. The complex issues dealt with in the judgments in A. v. Governor of Arbour Hill Prison do not arise.
87. In the circumstances, it is unnecessary to determine whether O’Rourke and Daly are good authority for the proposition that a defendant should be put on notice of an application to renew. If the person cannot be found, that possibility should not arise.
88. I would therefore allow the appeal.
