High Court dismisses judicial review application against District Court order due to lack of formal conviction order.
Legislator-Zusammenfassung
KI-generiertThe High Court dismissed an application for judicial review challenging a District Court order in criminal proceedings. The applicant argued that the District Court lacked jurisdiction because no formal order of conviction was ever made, despite the prosecution's case. The court held that judicial review is generally inappropriate during the currency of criminal trials and declined to breathe life into a historical vacuum where no formal order existed.
Legislator-Regeste
KI-generiertCourts (No. 3) Act, 1986, s. 1; SPUC v. Grogan [1989] IR 753; Ledwidge v. Ireland [2014] IEHC 100: The High Court lacks jurisdiction to grant relief via judicial review where no formal order of conviction was made, as it cannot breathe contemporary substance into a historical vacuum during the currency of criminal proceedings.
Schlagwörter
KI-generiertZitierte Gesetzesbestimmungen
KI-generiertZitierte Rechtsprechung
KI-generiertVerwandte Entscheide
KI-generiertVolltext
[2017] IEHC 263
THE HIGH COURT
2016 No.429JR
Between:
SIMONA CIRPACI
Applicant
– and –
ELECTRICITY SUPPLY BOARD NETWORKS LIMITED
Respondent
JUDGMENT of Mr Justice Max Barrett delivered on 5th May, 2017.
I: Background
1. Ms Cirpaci was issued with a summons dated 6th May, 2015, charging her with two offences under the Energy (Miscellaneous
Provisions) Act 1995, as amended, viz. unlawful interference with an ESB meter contrary to s.15(3) of that Act, and failing to take all
reasonable steps to ensure that interference with an ESB meter was discontinued, contrary to s.15(6) of the Act. The detail of those
provisions is considered later below. The content of the summons that issued to Ms Cirpaci is set out overleaf.
2. As can be seen from the substance of the summons, despite blank spaces being left in the standard template, at no point does the
summons state which District Court office it issues from. Notably, the summons also states the date on which the first offence of
unlawful interference occurred as being 28th April, 2014.
3. Ms Cirpaci attended Court 8 of the Four Courts as required on 22nd June, 2015, and as required thereafter. By letter of 30th June,
2015, the prosecution furnished disclosure to Ms Cirpaci’s solicitor. This included (1) a “Customer Visit Discrepancy Report” that listed
the date of detection of interference with the meter as 28th April, 2014, and (2) a “Units Undercharge Calculator” that identifies the
time-period of undercharge as being from 6th May, 2011, to 27th April, 2014.
4. The matter was set down for hearing on 30th November, 2015. On that date the prosecution sought an adjournment as the
defence had raised a preliminary jurisdictional argument which required to be clarified. This adjournment was granted, the learned
District Justice requesting that both parties furnish brief written submissions on the jurisdictional argument in advance of the next
hearing-date. Following a further adjournment, the matter came to be heard on 4th April, 2016.
Content of the Summons.
“AN CHUIRT DUICHE THE DISTRICT COURT
No. 15.2 SCHEDULE B
O. 15, r.2(1)
Courts (No. 3) Act, 1986
Section 1
SUMMONS
DUBLIN METROPOLITAN DISTRICT
ESB NETWORKS LIMITED PROSECUTOR
of Clanwilliam House, Clanwilliam Place, Dublin 2
(a Limited Liability Company)
SIMONA CIRPACI ACCUSED
of [Address Stated in Original], County Dublin
WHEREAS on the 6 day of May 2015, an application was made to this office by Vincent M. O’Reilly, State Solicitor, Navan, County
Meath *(on behalf of) the above named Prosecutor for the issue of a Summons to you, the above named Accused of [Address Stated
in Original] *(in Court Area and District aforesaid) alleging the following offence(s):-
OFFENCE 1
THAT YOU the said Simona Carpaci did on the 28th day of April 2014 at [Address Stated in Original], County Dublin in the Court Area
and District aforesaid unlawfully interfere with an article owned by or under the control of the Electricity Supply Board contrary to
Section 15(3) of the Energy (Miscellaneous Provisions) Act, 1995, as amended by Section 5 of the Energy (Miscellaneous Provisions)
Act 2012.
OFFENCE 2
AND FURTHER THAT YOU the said Simona Carpaci being a registered consumer of the electricity supply at [Address Stated in Original],
County Dublin on the 28th day of April 2014 having reasonable grounds for believing that a meter to which Subsection 15(6)(a) of the
Energy (Miscellaneous Provisions) Act, 1995 as amended by Section 5 of the Energy (Miscellaneous Provisions) Act 2012 applies was
not duly registering or causing to be registered a quantity of electricity being supplied to the premises by reason of the meter being
interfered with, failed to take all reasonable steps to ensure the interference was discontinued, contrary to Section 15(6)(c) of the
Energy (Miscellaneous Provisions) Act, 1995 as amended by Section 5 of the Energy (Miscellaneous Provisions) Act 2012.
THIS IS TO NOTIFY YOU that you will be accused of the said Offence(s) at a sitting of the District Court for the court area and
district aforesaid to be held at Court No. 8 Four Courts, Inns Quay, Dublin 7 on the 22 June 2015 at 10.30.am.
AND TO REQUIRE YOU to appear at the said sitting to answer the said accusations.
The appropriate District Court Clerk specified in relation to this Summons is Gabriel O’Gorman
of the District Court Office at ooooooooooooooooooooooooooo District Court Clerk
* Issued out of the District Court Office at ooooooooooooooooooooooooooo
An office of the Courts Service designated for the purpose of receiving applications under section 1(3) of the Courts (No 3) Act 1986.
To: Simona Carpaci
Of: [Address Stated in Original], County Dublin.”
5. On 4th April, 2016, the learned District Judge heard submissions as to whether the District Court had jurisdiction in the matter and
decided that (i) the District Court had jurisdiction, and (ii) the fact that the summons did not specify the location of the District Court
Office to which the application for the summons had been made did not act to deny the District Court jurisdiction over the matter. It
is worth quoting from a couple of portions of the transcript of the District Court hearing which demonstrate that the learned District
Judge expressly concerned himself with the argument made before him as to procedural versus jurisdictional deficiencies and the
related consequences of each (the judgment of Clarke J. in Payne v. Brophy [2006] IR 560 being perhaps the definitive case on this
dichotomy of deficiencies). Per the transcript of the District Court proceedings (at pp.13–16):
“JUDGE: …[I]n your submissions, you refer to the attendance of the defendant curing all defects.
COUNSEL (ESB): Yes, Judge.
JUDGE: You seem to suggest that once the Defendant is in court, that’s it?
COUNSEL: Yes, Judge.
JUDGE: Counsel [for Ms Cirpaci] has made the point that in relation to the law opened by her…there is reference to
defects which go to the jurisdiction of the court and defects which are purely procedural. Purely procedural defects can
be dealt with, but defects going to the jurisdiction of the Court cannot so easily be dealt with.
[Counsel for ESB addresses the query raised.]
[…]
JUDGE: What do you say to the specific matter referred to by counsel [for Ms Cirpaci] as to the – at the end of the
summons – the appropriate District Court Clerk specified in relation to this summons is ‘so and so’…of the District Court
Office at ‘blank’?...Is that a defect which is purely procedural in nature or is it a defect which…goes to the jurisdiction?
[Counsel for ESB argues that the said deficiency is procedural. Counsel for Ms Cirpaci then argues that it is a deficiency
which goes to jurisdiction. The learned District Judge then gives a short ruling on the matter]
[…]
JUDGE: [To Counsel for Ms Cirpaci]…Counsel, I don’t agree with you. I don’t hold with your submission.”
6. The learned District Judge then proceeded to hear the case. Following the prosecution evidence, an application was made on Ms
Cirpaci’s behalf for a direction that the case against her be dismissed as a prima facie case had not been established. One of the
submissions made at this point was that the prosecution had not proven the facts as alleged in the summons in relation to the alleged
contravention of s.15(3). This submission was made on the basis that it had been accepted in the cross-examination of the
prosecution witnesses that the interference with the ESB meter must have occurred in or about 6th May, 2011; yet the summons
stated 28th April, 2014 (the date of the fateful inspection) as the date on which the offence was committed. The prosecution did not
make any application to amend the summons in this respect. The learned District Judge refused this application for a direction and the
defence then went into evidence. After the cross-examination ended, the following exchange ensued between the learned District
Judge and counsel for Ms Cirpaci:
“JUDGE: Thank you. I am satisfied that the ESB have proved their case, counsel. [The learned judge then identifies certain monies
that are owed by Ms Cirpaci to ESB and continues]….[To Counsel for Defence] Counsel, it would be to your client’s advantage if
those monies were paid. However, if you want me to make my order today and you may have instructions to appeal, I don’t know, I
can finalise my order today.
COUNSEL (MS CIRPACI): Perhaps, Judge, it would be best to try and – she seems to be
doing well in paying off the arrears to date, so perhaps if we could adjourn it to try and clear her arrears….
JUDGE: Okay, I will put it back and if I am told on the next occasion that maybe the arrears might have been cleared and the
replacement of the installation value was only outstanding, that would be to your client’s advantage, if I was told that. But I don’t
want you to feel that your client must do that. You are quite entitled to have me make my order today and you can appeal it if you
wish?”
[Following some further exchanges, the learned District Judge adjourned matters to a hearing-date next July, without objection being
made.]
II: Reliefs Now Sought
7. Arising from the foregoing, Ms Cirpaci has brought the within judicial review application seeking the following reliefs:
(1) an order of certiorari quashing the order of the learned District Court Judge made on 4th April, 2016 in relation to the
above-described proceedings, being proceedings entitled ESB Networks Limited v. Simona Cirpaci;
(2) a declaration that the learned District Judge erred in law in failing to conduct an inquiry into whether or not the
application for the summons on which the said proceedings were based was made to the correct District Court Office in
the absence of this information on the face of the summons;
(3) a declaration that the learned District Judge acted ultra vires in convicting the applicant where the jurisdictional basis
of the summons had not been established and where no application to amend the said summons had been made by the
respondent;
(4) a declaration that the learned District Judge erred in law and/or acted in breach of constitutional justice and fair
procedures in convicting the applicant on the basis of a summons specifying the incorrect date and/or insufficiently
particularised dates for the offence alleged under s.15(3) of the Act of 1995, as amended;
(5) a stay on any further steps being taken in the above-named proceedings; and
(6) certain ancillary reliefs.
III: Premature Application
8. The court must regretfully conclude that the within application is premature and without basis, especially in circumstances where
Ms Cirpaci has not yet been convicted; in fact it may be that she will not be the subject of any order of conviction. At this point in
time, all that has happened is that the learned District Judge has stated that “I am satisfied that the ESB have proved their case”,
made no order, and adjourned matters to next July with a view to allowing certain outstanding monies to be repaid by Ms Cirpaci
(which repayment the learned District Judge has indicated will be to Ms Cirpaci’s advantage), this being an approach to matters which
counsel for Ms Cirpaci effectively sought, and to which she raised no objection.
9. As the court noted last year in Ledwidge v. DPP [2016] IEHC 726, para. 12, “It goes without mention, though it is perhaps worth
mentioning anyway, that the court cannot quash an order that was never made”. Of course, there is the power open to the court
under O.84, r.27(2) of the Rules of the Superior Courts 1986, as amended, to direct that a record be made of a judgment, conviction
or decision of which complaint is made; and, of course, there was recognition by the Supreme Court in SPUC v. Grogan [1989] IR 753,
that a ruling without a formal order can be a decision for the purposes of Art. 34.4.3̊ of the Constitution – though, notably, in that
case what was in issue was a ruling to defer consideration of an application for an interlocutory injunction, which deferral effectively
decided, in the circumstances presenting, that there would be no interlocutory injunction. A like situation does not present in the
within application. Here, as indeed was the case in Ledwidge, the court is not treating with something that was done but not
formalised, or the true character of which falls now to be recognised; it is dealing, when it comes to the order of conviction, with a
non-occurrence, with an order that, to borrow from the language of Ledwidge, was simply never made. The court does not have the
power to breathe contemporary substance into a historical vacuum. There is no order of conviction in this case. As to the conduct
otherwise of the District Court proceedings, as matters have yet to reach their conclusion in what are criminal proceedings, the court
is mindful of the historical aversion that the courts have manifested as regards conducting judicial review in respect of such
proceedings prior to the trial court completing its work. So, for example, in CC v. Ireland [2006] 4 I.R. 1, the Supreme Court doubted
the propriety of seeking a declaration by means of judicial review as to the interpretation, and ultimately the constitutionality of
s.1(1) of the Criminal Law (Amendment) Act 1935. Exceptionally, however, the Supreme Court proceeded to rule on those questions in
the very particular circumstances presenting in that case. Here, no like or other exceptional circumstances appear to present, and
the court is heedful of the rightly cautious note struck by the late Carney J., a distinguished criminal law judge, in Director of Public
Prosecutions v. Special Criminal Court [1999] 1 I.R. 60, and which can be applied by analogy to the circumstances of the within
proceedings, when he observed, at 69-70, consistent with the logic in CC, that:
“It cannot be emphasised strongly enough that an expedition to the judicial review court is not to be regarded as an
option where an adverse ruling is encountered in the course of a criminal trial. I am undertaking this application for a
judicial review during the currency of the trial because a need has presented itself to urgently balance the hierarchy of
constitutional rights including, in particular, the right to life. In the overwhelming majority of cases it would be
appropriate that any question of judicial review be left over until after the conclusion of the trial.”
10. The court considers that this case belongs, to borrow from the just-quoted text, to “the overwhelming majority of cases”.
IV: Conclusion
11. For the various reasons stated above, the court considers that this application must fail at this time and declines to grant any of
the reliefs now sought.