Supreme Court overturns decision that led to introduction of emergency criminal case legislation

The Supreme Court has overturned a decision that led to the introduction of emergency legislation to prevent thousands of criminal prosecutions from being held up in the District Court.

In May 2022, the High Court struck down as invalid a District Court rule that allowed a Garda officer not directly involved in a case to present the facts to court.

Ms Justice Marguerite Bolger held that the rule was an “impermissible” amendment of Section 8.2 of the 2005 Garda Síochána Act, which, she said, limits the presenting role to the garda who initiated the prosecution. She paused the effects of her ruling.

In response, Minister for Justice Helen McEntee introduced emergency legislation to provide a legal basis for any Garda member to conduct a prosecution regardless of whether he or she initiated the prosecution.

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Ms McEntee said the “well-established” system of using Garda court presenters enables more efficient use of police resources by reducing the need for lots of gardaí to attend court.

Despite the amendments made urgently to the 2005 Act, the Supreme Court considered the appeal by the Director of Public Prosecutions, represented by Sunniva McDonagh SC and John P Gallagher BL, was not moot.

On Friday, the five-judge court found the unchanged 2005 Act permitted a non-prosecuting Garda member to conduct summary proceedings on behalf of the prosecution.

Writing on behalf of the court, Ms Justice Elizabeth Dunne said the natural and ordinary meaning of section 8.2 of the Act “clearly contemplates different members of An Garda Síochána instituting or conducting summary proceedings”.

She said there was evidence of the practice of gardaí prosecuting as common informers since at least 1948. Abolishing it through the 2005 Act would have been a “radical” step for the Oireachtas to take, she said.

“It seems to me to be inconceivable that the Oireachtas would abolish that without express and explicit provision with the [2005] statute.”

The judge was “fortified” in her view by the fact emergency legislation was enacted the day after the High Court’s decision to put back in place the position that existed before.

The regulation of who has a right of audience in court is part of the practice and procedure of the District Court and within the rule-making power of the District Court Rules Committee, the judge went on.

The legal issue arose in relation to the prosecution in August 2021 of a man who denied a charge of having a small quantity of cannabis.

The defendant’s solicitor argued the Garda sergeant, who said he was “instructed” by the prosecuting garda, had no right of audience before the District Court.

District Judge Miriam Walsh referred the legal issue to the High Court for determination.

Ms Justice Dunne further held it was not appropriate to question the power of the District Court Rules by way of consultative case stated. The District Court did not have jurisdiction to entertain a challenge to rules and was instead “obliged to give effect” to them, she added.

“The rules have the force of law, unless declared invalid. Therefore, they must be complied with,” she said.

Ms Justice Dunne’s decision was supported by Chief Justice Donal O’Donnell, Mr Justice Peter Charleton, Ms Justice Iseult O’Malley and Mr Justice Maurice Collins.