TDI Metro Limited and atrick Halligan (applicants/ respondents) v Judge Sean Delap (respondent), Fingal County Council (notice party/ appellant) and the Attorney General (added notice party).

Criminal Law - Indictable offence - Whether statutory power to prosecute indictable offences tried summarily - Local Government (Planning and Development) Act 1963, sections 24 and 80(1) - Local Government (Planning and Development) Act 1982, sections 8(3), 9, and 13 - Local Government (Planning and Development) Act 1992, section 20(3) - Fire Services Act 1981 - Criminal Justice (Administration) Act 1924, section 9(2) - Bunreacht na hEireann 1937, Article 30.3.

The Supreme Court (the Chief Justice, Mr Justice Keane; Mrs Justice Denham, Mr Justice Murray, Mr Justice Geoghegan and Mr Justice Hardiman); judgments delivered 5 July 2000.

There is no reason to give the expression "prosecuted summarily" a narrow interpretation so as to confine it to prosecutions for summary offences, since a failure to obtain a planning permission (contrary to the Local Government (Planning and Development) Act 1963) can often be a very minor matter. Therefore, while the planning authority is the normal prosecuting authority for summary offences, it can deal with minor incidents of indictable offences clearly thought fit to be tried summarily.

The Supreme Court so held in allowing the appeal and substituting for the order of the High Court an order refusing the application for judicial review by way of certiorari.

James O'Reilly SC and John Doherty BL for the appellant/ notice party; Diarmaid McGuinness SC and Eamon Galligan BL for the respondent/ applicant; Peter Charleton SC and Lu an O'Braonain BL for the added notice party.

Mr Justice Geoghegan, delivering the majority judgment of the court, said that this was an appeal from an order of certiorari made by the High Court in respect of an order of Judge Delap, on foot of which the applicants on the judicial review application and respondents on the appeal, were convicted of an offence under section 24 of the Local Government (Planning and Development) Act 1963 as amended.

Section 24 of the Local Government (Planning and Development) Act 1963 originally provided that a person who carried out development without permission was guilty of a summary offence but this was amended to an indictable offence by section 8(3) of the Local Government (Planning and Development) Act 1982. Section 80(1) of the 1963 Act provided that, an offence under that Act may be prosecuted by the planning authority in whose area the offence was committed, but this was amended by section 13 of the 1982 Act by inserting the word "summarily" after "prosecuted". Section 9 of the 1982 Act gives the District Court jurisdiction to try summarily such an indictable offence where: (a) the judge is of the opinion that the facts proved or alleged against the defendant constitute a minor offence fit to be tried summarily; (b) the Director of Public Prosecutions consents; and (c) the defendant on being informed of his right to be tried by a jury does not object to being tried summarily.

Section 9(3) of the 1982 Act was replaced by section 20(3) of the Local Government (Planning and Development) Act 1992 but nothing turns on the amendments to the 1982 Act made by the 1992 Act.

The appellant took out a summons for an offence under Section 24 of the 1963 Act with a view to it being tried summarily assuming that the statutory conditions were fulfilled and the District Court judge accepted jurisdiction. The respondents maintained that the appellant was not legally permitted to do that because under the provisions of section 80(1) of the 1963 Act, as amended by section 13 of the 1982 Act, a planning authority has power only to prosecute "summarily". Since the offence was an indictable offence the respondents stated that the appellant can never at any stage be considered as having been prosecuting "summarily" and that therefore the District Court judge had no jurisdiction to make the order he did make.

Mr Justice Geoghegan said that the logic of this submission is that where any contravention of section 24 of the 1963 Act, however trivial, occurs, the prosecution must be brought from the very beginning either by the Director of Public Prosecutions or by a common informer.

Mr Justice Geoghegan referred to the decision of the Supreme Court in Cumann Luthchleas Gael v Windle [1994] 1 IR 525, but stated that that case was not relevant. That case concerned the Fire Services Act 1981, which did not contain the words "prosecuted summarily". The issue in that case was whether the fire authority could prosecute the indictable offence as common informer, but in this case the appellant never alleged that it was prosecuting as a common informer. Furthermore the 1963 Act does not clearly confine the power of the planning authority to prosecute to summary offences as the Fire Services Act 1981 did in relation to the statutory body under that Act.

Mr Justice Geoghegan pointed out that this case depends entirely and exclusively on the interpretation the court puts on the expression "prosecuted summarily" and that the reason for the addition of the word "summarily" does not seem to lend the court any assistance in interpreting the combined words. Once an indictable offence was introduced it was necessary to amend the Act so as not to leave it open to interpretation that the planning authority had power to prosecute on an indictment. Mr Justice Geoghegan said that it does not make crystal clear whether the net result is that the planning authority may only prosecute for summary offences or whether they can also prosecute for indictable offences provided they are being tried summarily. The court must therefore interpret the words as best it can and question what the Oireachtas intended.

Mr Justice Geoghegan said that there is no reason whatsoever to give the expression "prosecuted summarily" a narrow interpretation so as to confine it to prosecutions for summary offences. Even applying the strict canons of construction it does not require such an interpretation and such an interpretation would not have been the intention of the Oireachtas. Mr Justice Geoghegan said that a failure to comply with a planning permission or a failure to obtain a planning permission contrary to the 1963 Act may in numerous instances be a very minor matter and it would be strange if it was intended that, although the planning authority would be the normal prosecuting authority for the summary offences, it could not deal with minor incidents of indictable offences clearly thought fit to be tried summarily.

Mr Justice Geoghegan disagreed with the argument that if the District Court judge ultimately held that the offence was of a nature that it should not be tried summarily, then the commencement of the prosecution by the planning authority was ultra vires. What the Act allows the planning authority to do is a certain activity namely to "prosecute summarily". Up to the stage when the District Court declines jurisdiction the planning authority is doing nothing unlawful. The declining of jurisdiction by the District Court could not have the effect of retrospectively rendering invalid the prosecution up to that moment. Mr Justice Geoghegan referred to section 9 of the Criminal Justice (Administration) Act 1924 and to Article 30.3 of the Constitution but said that nothing turns on such in this case.

Accordingly, Mr Justice Geoghegan allowed the appeal and set aside the order of certiorari.

The Chief Justice, Mr Justice Keane concurred but added inter alia that he would expressly reserve for consideration in an appropriate case the question as to the extent, if any, to which parliamentary debates are admissible in the construction of legislation enacted by the Oireachtas.

Mrs Justice Denham and Mr Justice Murray concurred.

Mr Justice Hardiman (dissenting) said that an indictable offence remains indictable even if it is dealt with summarily. Mr Justice Hardiman applied the meaning of the word "prosecuted" in Article 30.3 of the Constitution as interpreted in The State (Ennis) v Farrell [1966] IR 107 and said that the initiation of the case is part of what is comprehended in the term "prosecution". The making of the complaint cannot be regarded as something separate from the prosecution of it.

Mr Justice Hardiman stated that these offences are indictable offences, which unless certain events occur, require to be tried on indictment and that the initiation of a prosecution for an indictable offence, which may or may not be disposed of summarily, is not within the scope of the authority conferred on the appellant. Accordingly, Mr Justice Hardiman dismissed the appeal.

Solicitors: Mary Crealey (Dublin), Law Agent for the appellant; Dempsey & Co.(Dublin) for the respondents; The Chief State Solicitor for the added notice party.