High Court allows prosecution despite procedural errors in summoning and warrant issuance for public order offences.

Neutral Citation Number: [2009] IEHC 493

THE HIGH COURT

2008 939 SS

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961 TO 1991

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

MICHAEL MURPHY

ACCUSED

Judgment of Mr. Justice Hedigan delivered the 13th day of October, 2009

1. The present case comes before the Court by way of a consultative case stated by District Judge Uinsín McGruairc, sitting in the

District area of Cork City, pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act 1961 (‘the 1961 Act’).

2. The opinion of the High Court is sought in relation to the following questions:-

(a) Was the accused afforded fair procedures in the service of the District Court summonses upon him?

(b) Was the accused afforded fair procedures in the issue of the bench warrant against him?

I. Factual and Procedural Background

3. On the 26th of May 2006, an application was made by Garda Brendan Dowling for four summonses as against the accused pursuant

to section 1 of the Courts (No. 3) Act 1986 (‘the 1986 Act’). The summonses, which were issued on the 23rd of October 2006, set a

hearing date of the 8th of January 2007 and contained details of the following alleged offences:-

(a) Intoxication in a public place contrary to section 4 of the Criminal Justice (Public Order) Act 1994;

(b) Threatening, abusive or insulting behaviour in a public place contrary to section 6 of the Criminal Justice (Public Order)

Act 1994;

(c) Disorderly conduct on a licensed premises contrary to sections 8(1) and 8(3) of the Intoxicating Liquor Act 2003; and

(d) Assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997.

4. Service of the summonses was effected on the accused’s father by Garda Gary Lane on the 3rd of December 2006, pursuant to

Order 10 Rule 5 of the District Court Rules 1997 (‘the Rules’). A statutory declaration of service was endorsed on the back of each

summons.

5. On the 8th of January 2007, a solicitor present in Court indicated that he appeared on behalf of the accused. However, this

transpired to be an error on his part and accordingly a record of ‘no appearance by the defendant’ was noted by the District Judge on

the face of one of the summonses. However, no evidence was given on oath to the effect that the summonses had been

appropriately served in the manner envisaged by the Rules. The matters were adjourned until the 5th of February 2007 with a

direction that the accused should be ‘notified by ordinary prepaid post’ which was again noted on the face of one of the summonses.

6. When the accused’s case was called on the 5th of February 2007, no appearance was made by him or on his behalf. The learned

District Judge inquired as to whether the accused had been notified as previously directed and the prosecuting Garda indicated that

he had. However, again no evidence was given on oath to this effect. Efforts were made to call the accused outside of the courtroom

but again no appearance was forthcoming. At 10.46 a.m., the District Judge again noted ‘no appearance by the defendant’ on the

face of one of the summonses and proceeded to issue a bench warrant for the arrest of the accused, following an application by the

prosecuting Garda. The summonses were then adjourned generally pending the execution of the bench warrant.

7. The learned District Judge has indicated by way of addendum to the case stated that it has been his invariable practice to check

and satisfy himself of the mode of service of a summons before directing the method of notification to a non-appearing defendant or

prior to acceding to an application for a bench warrant. However, the District Judge is unable to recall specifically whether he

checked the mode of service of the summonses in the present case. The bench warrant was issued in accordance with Order 22 Rule

1 of the Rules.

8. On the 21st of March 2007, the accused was arrested and brought before the District Court on foot of the bench warrant. He

stated that he did not wish to have a solicitor but nonetheless accepted the offer by the District Judge of a specific legal aid

solicitor. The accused further stated that the address contained in the summonses was not his address, that he had not received

them, and that his arrest on foot of the bench warrant had been illegal. Despite this, the accused reluctantly entered into a bail bond

and the matters were adjourned until the 16th of April 2007. The applicant then provided an alternative address within County Cork,

indicating that he had ceased to live with his father at the time of the purported service of the summonses.

9. Two further adjournments were granted in the case, until the 14th of May 2007 and the 11th of June 2007. On the latter date, the

applicant’s solicitor applied to come off record. This application was acceded to by the District Judge. The accused repeated his

objections to the service of the summonses. The original summonses and accompanying declarations of service were then shown to

the accused. He was nonetheless dissatisfied and requested that the District Judge should “refer [his] case to the High Court”. The

District Judge indicated that he did not feel that matter was one which was appropriate to refer to the High Court and indicated to

the accused that he should consider instructing another solicitor. The accused requested that he be remanded in custody so that he

could “go to the High Court”. He further expressed the view that such a course of action was “the only way out”. The District Judge

re-iterated his view that the service in the case had been in accordance with law. This view was supported by the prosecuting Garda

who asserted that the accused was legitimately before the Court. The District Judge therefore refused the accused’s request to be

remanded in custody and recommended that he consider the allegations being made against him with the advice of a solicitor. The

District Judge also informed the accused of the avenue of appeal which was available to him in the case. The case was then

adjourned until the 9th of July 2007.

10. On the 9th of July 2007, legal aid was granted to the accused and he was assigned a new solicitor under that scheme. On that

occasion, the accused urged that “[i]f the solicitor [did] not take the case to the High Court” he would be going “into custody the

next day”. The matter was adjourned once again, this time until the 12th of October 2007.

11. On the 12th of October 2007, the issue of the service of the four summonses was addressed once again. The accused’s new

solicitor indicated to the Court that he had advised the accused in relation to the matter and that copies of the four summonses and

accompanying declarations of service had been obtained from his former solicitor. Nonetheless, the accused complained that no Garda

had given evidence of the service of these summonses and queried whether in fact they had ever been served.

12. The accused also submitted that if he was remanded in custody in respect of the charges, he would be held illegally and would be

entitled to petition the High Court. The District Judge replied that in the interests of justice he would not countenance making an

order remanding the accused in custody in view of the circumstances of the case. The District Judge went on to set out his opinion

of the law in relation to the service of summonses and the issue of non-appearance by an accused person. He stated that where an

accused did not appear and where service of the summons had prima facie been effected in accordance with law, and a statutory

declaration was made relating thereto, the service was good service within the meaning of Order 22 and Order 23 of the Rules as well

as section 1(1) of the 1986 Act. The District Judge therefore expressed the view that he had acted in accordance with law and due

process in issuing the bench warrant against the accused. Despite this, the District Judge elected to state the present case for the

opinion of the High Court.

II. The Opinion of the Court

(a) The Service of the Summonses

13. It is now common case between the parties that the service of the summonses in the present case was in accordance with law.

For the sake of completeness, the Court will nonetheless explain why this is so.

14. Section 1(5) of the 1986 Act creates a specific presumption in respect of the validity of a summons. It provides as follows:-

“In any proceedings, a document purporting to be a summons shall, unless the contrary is shown, be deemed to be a

summons duly applied for and issued.”

Since nothing untoward has been alleged by or on behalf of the accused as to the manner in which the summonses were applied for

by Garda Dowling, it follows that they must be held to be valid.

15. Order 10 Rule 3 of the Rules provides for service of a summons by a member of An Garda Síochána in any proceedings in which the

Director of Public Prosecutions or a member of An Garda Síochána is prosecuting. There is no dispute in the present case but that the

summonses were served by Garda Lane, therefore it is clear that this rule was also complied with.

16. Order 10 Rule 5 of the Rules details the means by which service should take place. It provides as follows:-

“Save where otherwise provided by statute or by Rules of Court, service of a document shall be effected upon a person in

the State by delivering to that person a copy thereof or by leaving the copy for that person at his or her last or most

usual place of abode, or at his or her office, shop, factory, home or place of business with that person's husband or wife,

as the case may be or with a child or other relative (apparently residing with that person) of that person or of his wife or

her husband as the case may be, or with any agent, clerk, servant or employee of that person, or with the person in

charge of the house or premises wherein that person usually resides, provided that the person (other than the person

upon whom service is to be effected) with whom the copy is left is not under the age of sixteen years and is not the

person instituting the proceedings.”

17. With regard to proof of such service, Order 10 Rule 16 of the Rules provides for evidence by way of statutory declaration. It

states:-

“A person who serves a document shall either prove the service by evidence given orally before the Court or make, before

a Judge or a Peace Commissioner, a statutory declaration as to service, in the Form 10.1, 10.2, 10.3 or 10.4, Schedule B,

as the case may be.”

Order 10 Rule 17 of the Rules further provides that where a statutory declaration is made, and lodged pursuant to Order 10 Rule 21, it

shall be prima facie evidence of the mode, time and place of service as therein set out and it shall not be necessary for the person

effecting service to personally attend at the District Court to give evidence of same. However, the Court does have discretion to

require attendance where it thinks fit.

18. Applying these provisions to the facts of the present case, it is clear that Garda Lane made a statutory declaration in which he

states that he served the summonses, by hand, on the accused’s father at the accused’s last known abode. There being no evidence

to rebut the veracity of any aspect of this assertion, it is evident that the provisions of the Rules and the 1986 Act were fully

complied with in the service of the summonses.

(b) The Bench Warrant

19. Section 22(4) of the Courts Act 1991 (‘the 1991 Act’) provides for the adjournment of District Court proceedings in circumstances

where the accused fails to appear. It reads as follows:-

“Where a summons has been issued under section 11 (2) of the [Petty Sessions (Ireland) Act] 1851 or section 1 of the

[Courts (No. 3) Act] 1986 and served upon the person to whom it is directed by a means of service provided for in

subsection (1) of this section and that person neither appears at the time and place specified in the summons nor at the

hearing of the complaint or accusation to which the summons relates, the District Court may, if it considers it undesirable

in the interests of justice, whether because of the gravity of the offence or otherwise, to continue the hearing in the

absence of the person, adjourn the hearing to such time and place as the Court may direct to enable the person to be

notified in such manner as the Court may direct of the adjourned hearing.”

20. The provisions of the 1991 Act are supplemented by Order 22 Rule 3 of the Rules which provides for notification of such an

adjournment by the District Court clerk unless the District Judge directs an alternative means of notification. In the present case, it is

clear that the District Judge elected to direct notification by way of ordinary pre-paid post.

21. Section 22(5) of the 1991 Act gives the District Judge jurisdiction to issue bench warrants in certain circumstances. It provides:-

“Where the District Court has adjourned the hearing of a complaint or accusation under subsection (4) of this section and

the person to whom the summons concerned is directed does not appear at the adjourned hearing, the District Court

may, if the complaint or accusation has been substantiated on oath and if the Court is satisfied that reasonable notice of

the adjourned hearing was given to the person in accordance with the said subsection (4), issue a warrant for the arrest

and bringing of the person before it to answer the said complaint or accusation or proceed to hear the complaint or

accusation in the absence of the person.” (Emphasis added)

22. The central issue for determination by this Court is whether it is only in circumstances where a complaint or accusation has been

substantiated on oath, and the District Court is satisfied that reasonable notice of the adjourned hearing was given, that a bench

warrant may issue. Section 22 of the 1991 Act applies both to summonses issued under section XI of the Petty Sessions (Ireland) Act

1851, which do require evidence on oath of personal service, and those under section 1 of the 1986 Act, which do not. In seeking to

interpret this provision, the Court is obliged to first employ a literal approach. It is only in limited circumstances that this principle may

be departed from. The primacy of the literal method was recognised by the Supreme Court in Keane v. An Bord Pleanála [1997] 1 I.R.

184. In that case, Hamilton C.J. pronounced as follows:-

“In the interpretation of a statute or section thereof, the text of the statute or section thereof is to be regarded as the

pre-eminent indication of the legislator’s intention and its meaning is to be taken as that which corresponds to the literal

meaning.”

23. Section 5 of the Interpretation Act 2005 (‘the 2005 Act’) now gives formal recognition to the power of the courts to depart from

the literal meaning of a statute where it would produce obscure results or where it would undermine the plain intention of the

legislature. It provides:-

“In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction):-

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of:-

(i) in the case of an Act to which paragraph (a) of the definition of Act in section 2(1) relates, the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as

the case may be, where that intention can be ascertained from the Act as a whole.”

24. In Monahan v. Legal Aid Board [2008] IEHC 300, Edwards J. considered the significance of section 5 of the 2005 Act and held as

follows:-

“Section 5 implicitly recognises the literal rule as the primary rule of statutory interpretation, and authorises the courts to

depart from the literal rule and adopt a purposive approach only in clearly defined circumstances. The language of the Bill

is close to that set out in the recommendations of the Law Reform Commission Report on Statutory Drafting and

Interpretation: Plain Language and the Law, LRC 61-2000, at 21, which was largely derived from the judgment of Keane J.

in Mulcahy v Minister for the Marine (Unreported, High Court, 4th November, 1994) where he stated as follows:-

“While the court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of

an enactment in order to avoid an unjust or anomalous consequence, that does not preclude the Court from

departing from the literal construction of an enactment and adopting in its place a teleological or purposive

approach, if that would more faithfully reflect the true legislative intention gathered from the Act as a whole.”

As such, s. 5 largely reflects the approach adopted by the courts prior to its enactment in any event. The main departure

from the common law position occasioned by s. 5 is the creation of an exception to the general rule where a literal

interpretation would defeat the intention of the Oireachtas. This exception to the literal rule of interpretation now applies,

together with the traditional common law ambiguity and absurdity exceptions. It is important to note that there is an

important limitation built into the language of s. 5; the purposive rule provided for in s. 5 may only be applied where the

intention of the Oireachtas “can be ascertained from the Act as a whole.” Thus, the wording of the s.5 limits the

possibility of reliance on external materials to ascertain the legislative intent behind a particular provision. Interpretation in

light of the intention of the enacting body is permissible only “where that intention can be ascertained from the Act as a

whole”.”

25. Applying a literal interpretation to the wording of section 22 of the 1991 Act, it seems that where a summons under the 1986 Act,

such as those in the present case, comes before the District Court and the accused fails to appear, the complaint against the

accused must be substantiated on oath before a bench warrant may issue. The prosecutor has contended that such an interpretation

gives rise to an absurdity, in that it effectively requires that sworn evidence be given in respect of service of a summons issued under

the 1986 Act, a criterion which is patently omitted from the provisions of section 1 of the 1986 Act itself. However, I am unable to

accept that this effect amounts to an absurdity. It is unquestionably true that if a District Judge proceeds to hear a case in the

absence of an accused person, he is obliged to do so by means of evidence on oath. It seems to me that where a District Judge does

not wish to proceed, but does wish to consider the potential issuance of a bench warrant, he should be satisfied that the complaint

or accusation against the person has been substantiated on oath. This is a logical step to undertake before ordering that an accused

person should be deprived of his constitutional right to liberty.

26. In the circumstances of the present case, it is clear that the learned District Judge did not hear any evidence on oath in relation

to the complaint against the accused before he proceeded to issue the bench warrant. This, in my view, amounted to an error of law

on his part and an infringement of the requirement in section 22(5) of the 1991 Act.

(c) The Effect of Any Errors Made

27. Having established that the accused was brought before the District Court by virtue of an error of law, the Court must determine

what consequences such error holds for the prosecution of the accused in respect of the alleged offences. It is well-established that

the jurisdiction of the District Court to hear a criminal charge is not derived from a summons or an arrest warrant. As such, any

defects in the issue or service of same can not be permitted to act as a bar on the prosecution of an accused person. In Attorney

General (McDonnell) v. Higgins [1964] I.R. 375, Kingsmill-Moore J. stated the following at page 391:-

“Neither summons nor warrant to arrest, consequent on the information, confer jurisdiction. They are merely processes to

compel the attendance of the person accused of the offence… It is equally clear that if a person is in Court, voluntarily or

involuntarily, legally or illegally, an information or complaint may be made then and there "ore tenus " to the Justice,

accusing such person of having committed a summary offence, and, if the information contains the necessary ingredients,

the person may at once be charged with the offence.”

28. More recently, in Killeen v. D.P.P. [1997] 3 I.R. 218, Keane J. made the following remarks at page 228:-

“It can, in general, be said that the jurisdiction of the District Court to embark on any criminal proceeding, including the

holding of a preliminary examination, is unaffected by the fact, if it be the fact, that the accused person has been

brought before the court by an illegal process. This was so held by Davitt P. in The State (Attorney General) v. Fawsitt

[1955] I.R. 39, at p. 43 where he said:-

“The usual methods of securing the attendance of an accused person before the District Court, so that it may

investigate a charge of an indictable offence made against him, is by way of arrest or by way of formal summons,

but neither of these methods is essential. He could, of course, attend, voluntarily, if he so wished; so far as the

exercise of the Court's substantive jurisdiction is concerned it is perfectly immaterial in what way his attendance is

secured, so long as he is present before the District Justice in Court at the material time. Even if he is brought

there by an illegal process, the Court's jurisdiction is nonetheless effective.’”

29. The learned District Judge clearly acted in good faith in respect of all of his dealings with the accused. No deliberate or conscious

attempt was made to unlawfully deprive the accused of his liberty. As such, there is no reason why the prosecution of the accused in

respect of the alleged offences should not proceed in the usual manner.

III. Conclusion

30. In light of the foregoing, I would answer the first question posed by the learned District Judge in the affirmative but would answer

the second question so posed in the negative. The matter will be remitted to the District Court so that the prosecution of the

accused may continue in the ordinary manner.