Barrister

Michael Finnegan (applicant) v District Judge John P. Clifford and the Director of Public Prosecutions (respondents).

Judicial Review - Criminal Law - Procedure - Summons - Defendant member of Garda Siochana - Requirement that summons be signed by district judge - Use of Summons headed "Courts (No 3) Act 1986" - Summons signed by judge - Whether use of this form of summons suggested a use of the administrative procedure for the issue of a summons - Whether valid complaint - Whether summons invalid - Whether judge had jurisdiction to conduct preliminary inquiry - Failure of defendant to object to jurisdictional point at early stage - Whether such failure operated to cure any defect in form or procedure - Petty Sessions (Ireland) Act 1851 (14 & 15 Vict c93), section 10(4) Courts of Justice Act 1924 (No 10) section 88(4) - Courts (No 3) Act 1986 (No 33) section 1 - District Court (Form of Summons) Rules 1987 (SI No - 23), Schedule.

The High Court (before Mr Justice Carney): judgment delivered 10 November 1995.

A VALID complaint had been made to the first respondent in relation to the applicant, a serving member of the Garda Siochan, and the fact that the summons form used by the prosecutor and signed by the first respondent bore the heading "Courts (No 3) Act 1986" did not mean that there was no valid complaint, nor that the proceedings were initiated by the administrative procedure prescribed by that Act. In any case, by appearing at and participating in proceedings before the first respondent between 4 January and 3 May 1994, the applicant could not later complain of any defect of form or procedure.

The High Court (Mr Justice Carney) so held in dismissing the applicant's claim for an order of certiorari to quash an order of the District Court returning him for trial.

Brendan Grogan SC, Hugh Hartnett BL and Isobel Kennedy BL for the applicant; Feichin McDonagh for the second respondent.

MR JUSTICE CARNEY said that in 1993 Sergeant Hayes from Cobh Garda Station was involved in the investigation of evidence allegedly given by the applicant (a serving garda) before the District Court, which it was alleged amounted to perjury.

Sergeant Hayes obtained blank summons forms headed "Courts (No 3) Act 1986", in the form prescribed in the Schedule to the District Court (Form of Summons) Rules 1987. The Sergeant was aware that pursuant to section 88(3) of the Courts of Justice Act 1924 and Rule 33 of the District Court Rules 1948 a summons against a defendant who is a member of the Garda Siochana must be signed by a district judge. Having filled out the blank summons forms, he therefore made arrangements for a Garda Twomey to bring the draft summonses to Judge Clifford for his signature.

On 26 December 1993, Garda Twomey met Judge Clifford at Cobh Courthouse, presented the three summonses to him, and explained that they needed to be signed by a district judge. The original return date was not suitable, and later the same day, a Garda McCarthy attended on the judge, who granted an earlier return date of 4 January 1994, and initialled the changes.

The summonses were served and the applicant appeared in court with his solicitor. No objection to jurisdiction was taken, and the matter was adjourned from time to time until 3 May, when objection was taken for the first time to the issue of jurisdiction. On that occasion Judge Clifford indicated that he had read the book of evidence and invited legal submissions.

It was argued before the District Court that the judge had no jurisdiction to conduct a preliminary examination or to make an order pursuant to section 8 of the Criminal Procedure Act 1967, on the ground that no valid complaint had been made in relation to the alleged offences. It was submitted that as the Act of 1924 required that any summons against a member of the Garda be signed by a judge of the District Court, it was not appropriate to commence or proceed with the prosecution of the applicant in respect of the alleged offences in reliance on an application for the issue of a summons - the procedure provided for by the Courts (No 3) Act 1986.

A solicitor for the applicant argued that the procedure set out in the Act of 1986 directed an application to be made only to the appropriate office of the District Court, and that the name of the appropriate District Court clerk should appear on the summons. It was submitted that the summonses before the court did not disclose that a valid complaint has ever been made in respect of the alleged offences, and that in the circumstances the district judge had no jurisdiction to make an order returning the applicant for trial. Having considered the legal submissions, the judge ruled against the submissions and ordered that the applicant be returned for trial.

By order of the High Court (Mr Justice Barr) dated 17 October 1994, the applicant was granted leave to seek an order of certiorari by way of judicial review in respect of his return for trial. The grounds as set out were that the judge had no jurisdiction to conduct the preliminary examination, and had acted in excess of his jurisdiction in purporting to return the applicant for trial.

In his statement of opposition it was argued on behalf of the DPP that notwithstanding the form of the summons used, the presentation of the summonses to the judge on 26 December 1993 for his consideration and signature constituted the making of a valid complaint, or in the alternative that the presentation of the summonses to the District Court on 4 January 1994 constituted the making of a valid complaint. It was also argued that the applicant had not objected to jurisdiction during the period when the summonses were being adjourned, nor during the taking of depositions on 18 April 1994.

Mr Justice Carney said that what had occurred was that Sergeant Hayes had utilised the forms proscribed under the District Court (Form of Summons) Rules 1987. However, being aware of the requirements under section 88(3) of the Courts of Justice Act 1924, he had the summons signed by the District Judge rather than an appropriate District Court clerk. Mr Justice Carney said that there was no doubt that the requirements of the 1924 Act were fully complied with.

Mr Justice Carney said that the applicant contended that the administrative procedure under the Courts (No 3) Act 1986 was not appropriate for a summons against a garda, and that the procedure under section 10 of the Petty Sessions (Ireland) Act 1851 should have been adopted. He said that as had been pointed out in DPP v Nolan [1990] 2 IR 526 the procedure under the Act of 1851 had not been abolished by the Act of 1986.

Section 10 of the Petty Sessions (Ireland) Act, 1986 provides: "Whenever information shall be given to any Justice that any person has committed or is suspected to have committed any offence... within the jurisdiction of such Justice, for which such person shall be punishable whether by indictment or upon summary conviction; ... or whenever a complaint shall be made to any Justice as to any other matter arising within the limits of his jurisdiction, upon which he shall have power to make a summary order it shall be lawful for such Justice to receive such information or complaint, and to proceed in respect of the same . . .

Section 1 of the Courts (No 3) Act 1986 provides for the commencement of District Court proceedings by the issuing, as a matter of administrative procedure, of a document referred to as a summons" by the appropriate office of the District Court, and bearing the name of an appropriate District Court clerk.

Mr Justice Carney said that the courts were moving away from the concept of trial by ambush, and he said he approached the matters relevant to the case, by looking at substance rather than form. He said that a summons did not itself confer jurisdiction, but was a process to compel the attendance of a person before the District Court (Attorney General (McDonnell) v Higgins [1964] IR 374). The jurisdiction of the District Court to hear a charge derived from the making of the complaint set out on the summons, not from the summons itself (DPP v Shields, unreported, High Court, Mr Justice Gannon, 4 December 1987).

He quoted from the decision of the Supreme Court in DPP v Clein [1983] ILRM 76 where Mr Justice Henchy stated: "A summons, after all, is only a written command issued to a defendant for the purpose of getting him to attend court on a specified date to answer a specific complaint. If he responds to that command by appearing in court on the specified date and by answering the summons when it is called in court, he cannot be heard to say that he was not properly summoned if the complaint set out in the summons is a valid one."

Mr Justice Carney also referred to the judgment of Mr Justice Gannon in DPP v Sheeran [1986] ILRM 579, where it was held, inter alia, that -

"4. The summons is a mere statement of the complaint notifying that a complaint has been made to an authorised person.

5. The summons of itself does not afford proof of the fact that a complaint was made.

6. Neither defect of form of a summons nor failure to serve or proceed on foot of it will invalidate the proceeding."

Mr Justice Carney concluded therefore that a valid complaint was made to Judge Clifford on 26 December 1993, and that the requirements of section 88(3) of the Courts of Justice Act 1924 and Rule 3 of the District Court Rules 1948 were complied with. Not withstanding the use and adaption of a form headed "Courts (No 3) Act 1986" the proceedings were not initiated by administrative procedure, and at all times Judge Clifford had jurisdiction in relation to the proceedings, and the applicant was validly returned for trial. He further held that even had there been a defect of form or procedure, the applicant could not complain about same, by virtue of having appeared and participated in the proceedings between 4 January and 3 May 1994.

Solicitors: Joseph P. Gordon & Co (Dungarvan) for the applicant; The Chief State Solicitor for the second respondent.