District Court lacks jurisdiction over non-minor offences; judge must decline hearing and cannot adjourn for evidence service.

THE SUPREME COURT

JUDICIAL REVIEW

Murray, C.J. 88/07

Finnegan, J.

Macken, J.

Between/

AIDAN READE

Applicant/Appellant

-and-

JUDGE REILLY AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Respondents

Judgment delivered the 31st day of July, 2009 by Macken, J.

The issues which arise for consideration in this matter concern the jurisdiction and the role of the first named respondent

and/or the District Court, in relation to so called “hybrid offences”, in the present case offences contrary to s.3 and s.15 of

the Non Fatal Offences Against the Person Act 1997 (“the Act of 1997”), and the role of the second named respondent as

prosecutor of such offences.

Background:

The context in which these judicial review proceedings were commenced is the following. The appellant came before

Mountbellew District Court, County Galway on the 3rd March 2005, in relation to two offences for, respectively, assault

causing harm contrary to s.3 of the above Act of 1997 and false imprisonment contrary to s.15 or the same Act. On that

occasion the first respondent had outlined to him by Sergeant Moynihan, prosecuting, a synopsis of the case against the

appellant, and a medical report was also furnished to the court. On that occasion also the first respondent, according to the

second respondent “indicated that he would accept jurisdiction” in respect of the two charges. It is said by the appellant that

the first respondent “determined that the offences were fit to be tried summarily”. For the purposes of this judgment I do

not consider that the difference in language used by the respective parties is in any way significant. It is agreed that the

District judge considered he had jurisdiction to try the offences.

There were several adjournments and eventually the matter came on for hearing on the 1st December 2005 at which stage

the applicant pleaded not guilty and the first respondent commenced hearing the evidence. It is common case that during the

course of the complainant’s evidence, the first respondent interrupted, saying that he did not consider he had jurisdiction to

deal with the matter. At that point the first respondent requested Inspector Glynn, who was then prosecuting on behalf of

the second respondent, for his opinion and the latter indicated that he had been “taken aback by the contents of the

statement”. The solicitor for the appellant then addressed the first respondent pointing out the length of time which had

elapsed between the events giving rise to the charges in July 2004 and December 2005 and, in effect, complaining that the

respondent was only then indicating he could not proceed with the trial. Inspector Glynn confirmed, upon inquiry of the first

respondent, that the second respondent had directed the matter be disposed of summarily. The first respondent then

requested sight of the medical report and having read the same and considered the matter briefly, said he would continue

with the trial, at which point the complainant resumed her evidence. The first respondent shortly thereafter again indicated

that he would not hear further evidence, being of the view that the case did not fall within his jurisdiction. He thereupon

adjourned the matter to the 5th January 2006 for service of a book of evidence so that a trial could take place before a jury

at Galway Circuit Court.

The Judicial Review Proceedings:

The appellant was granted leave by the High Court to commence these judicial review proceedings in which he sought: (i) an

order of certiorari quashing the decision of the first respondent made on the 1st December 2005 declining jurisdiction in

respect of the charges and remanding the appellant for service of a book of evidence; and (ii) an order of mandamus

compelling the first respondent to hear and adjudicate on the charges. The grounds upon which the appellant obtained leave

to seek these two reliefs were the following:

(a) The first respondent acted without jurisdiction and contrary to natural and constitutional justice and fair procedures in

having determined, on the 3rd March 2005, that the offences were fit to be tried summarily, and having embarked upon the

hearing on the 1st December 2005, arbitrarily and capriciously determined that the matter was not fit to be tried summarily

in circumstances where no new information had come to light; and

(b) That the first respondent acted without jurisdiction and contrary to natural and constitutional justice and fair procedures

in directing trial on indictment in respect of these offences in circumstances where he had been in possession of all relevant

material and had read the medical reports and statements prior to determining that he did have jurisdiction to hear the

matter.

At this stage it should be noted that in the High Court the appellant sought to argue a further ground, upon which leave had

not been granted, namely:

“That the learned trial judge erred in law in circumstances where the respondent had directed summary

disposal, in holding that he could refuse to complete the hearing during the course of which he had formed

the view that the offences were non minor and had jurisdiction to send the charges forward for trial in

indictment. In this regard the appellant argues that the determination of whether the offences charged were

minor charges fit for summary trial was vested exclusively by statute in the respondent.”

In the High Court objection was taken by the second named respondent to the appellant seeking to raise a ground in respect

of which no leave had been granted, relying on case law in that regard, but the trial judge nevertheless heard argument in

relation to the same. In this appeal this respondent continues to rely on this objection, but without prejudice to his stance, he

has nevertheless dealt with the matter in written and oral submissions. I am satisfied that the issues to be resolved between

the parties centrally involve consideration of the matter on the basis of this ground. Moreover, there is no cross-appeal in

respect of the learned High Court judge’s decision to permit this ground to be argued. Exceptionally therefore I consider

that, although this court is entitled to insist on limiting judicial review proceedings to those grounds in respect of which leave

was originally granted, it is appropriate to deal with all issues determined by the trial judge. Indeed this ground reflects the

kernel of the appellant’s case, and raises an important issue which requires to be resolved.

By a judgment of the High Court (Charleton, J.) delivered on the 26th February 2008, the reliefs sought were refused.

The Legal Issues:

The legal issues which arise for consideration in the foregoing context number two, or possibly three. The first two are

highly technical but very important issues identified by the learned High Court judge and concerning the distinction between

minor and non minor offences and how these are to be disposed of by our courts, and the third is based on an issue of fair

procedures. I propose to defer considering the latter until after I have dealt with the more technical issues, to which I now

turn.

The first issue is well encapsulated in the grounds of appeal relied on, in the following terms:

“The learned trial judge erred in law and in fact in finding, in circumstances where the DPP had

directed summary disposal of the particular offences alleged against the appellant, that the first named

respondent could refuse to complete a hearing during the course of which he had formed the view that

the offences charged were non minor offences.”

The second issue is also found in the grounds of appeal and relates to whether or not the first named respondent had “any

jurisdiction to send the appellant forward for trial on indictment as a result of his finding under the first of the matters”.

This second issue is, in reality dependent upon the outcome of the first issue, and only requires to be dealt with if the court

finds that the learned High Court judge was correct in his finding on the first issue.

The learned High Court judge dismissed the judicial review proceedings in stating:

“In this case, the learned District Judge appraised himself of the facts and made a preliminary decision

that it was a minor offence. In hearing the case, the evidence of the alleged injured party caused him to

change his mind. In deciding to discontinue hearing the case and to send it forward for trial to the

Circuit Court he acted both properly and in discharge of his constitutional duty to ensure the proper

disposal of criminal offences under Article 38 of the Constitution. I do not equate a perusal of the papers

with a plea of guilty. The District judge was not only at liberty, but was obliged, to change his mind on

realising that what was before him could not be disposed of summarily as a minor offence. This did not

require an additional hearing, or a change in the nature of the evidence. Whereas the applicant, as the

accused in that case, may regard it as unfair that his trial was not disposed of when it was listed, the

constitutional scheme requiring that non-minor offences be tried before a jury meant that the learned

respondent was ensuring, as a judge, that his constitutional rights as a person accused of a crime were

upheld.”

The Appellant’s submissions

It is argued by Mr McDonagh, senior counsel for the appellant, that while the position in relation to hybrid offences, such as

those in issue here, lacks clarity, nevertheless the learned trial judge erred in holding that when the second named

respondent had directed the charges be disposed of summarily, the first respondent was entitled to decline to hear the

charges, or indeed to do anything other than dispose of them as the second named respondent had determined. Secondly, as

to the point of principle contended for on behalf of the applicant, counsel submits, there is nothing improper with vesting in

the second respondent the exclusive right to determine the venue where an offence is to be disposed of. As a consequence, a

District judge is not entitled to “second guess” a prosecutorial decision on whether a charge is to be prosecuted or disposed

of summarily or on indictment. Thirdly, the determination of whether the offences charged were minor offences fit for

summary trial was vested exclusively by the Act of 1997 in the second respondent. The latter’s decision is, therefore,

immutable. In the appellant’s written submissions it is contended:

“The statutory provision in issue in this case is different in nature to that considered in the older

decided cases in the area. The Oireachtas has in recent years seen fit to alter the basis upon which

summary prosecution can be dealt with in the District Court. For the most part the accused no longer

has a role in agreeing to summary disposal. Likewise in the new dispensation the District Court judge is

no longer required by statute to form a view as to whether an offence is fit to be tried summarily. Rather

the Oireachtas has vested in the DPP the decision as to whether an accused person should have his case

heard summarily or upon indictment.” (emphasis added)

Counsel relies, in support of his argument, inter alia, on the decision of the High Court (Geoghegan, J.) in The People

(DPP) v Dougan [1996] 1 I.R. 544, a case stated, in which the learned judge had to consider whether an offence contrary

to the Road Traffic Act 1994 was “fit to be tried summarily”, and in which Geoghegan, J. stated as follows:

“At common law there was no such thing as summary jurisdiction. Summary jurisdiction can only be

vested in the District Court or any other court in relation to criminal offences by a statute. It follows

from that, that the prohibition on trying persons for non-minor offences without a jury contained in

Article 38, s.5 of the Constitution is tantamount to a prohibition on the Oireachtas enacting any post

1937 Act making a non-minor offence a summary offence. But a corollary of that proposition is that it is

for the Oireachtas in the first instance to determine whether an offence is a minor offence or not though

it may delegate the function to the District Court where it provides for alternative modes of trial. In

Conroy v The Attorney General I.R. 411, Walsh J. in the course of his judgment says the following at

page 436:

“The Court cannot accept the submission made on behalf of the Attorney General that the only

test of what is or is not a minor offence is the test of the punishment it may attract. The moral

quality of the act is a relevant though a secondary consideration. But between the positions of

grave and minimal moral guilt there is a large field which must be left to the discretion of the

Oireachtas for consideration as a factor in determining whether to make an offence a minor

one or not. That consideration will be reflected in the punishments which an offence may

attract either by the express will of the Oireachtas in an Act or at common law without

qualification by the Oireachtas.”

While I appreciate that that passage in the judgment of Walsh J. is in the context of one aspect of whether

an offence is minor or not, that is to say, the moral quality of the act, it indicates a broader general view

that there must necessarily be quite a range of discretion in the Oireachtas at any given time in

considering whether an offence is a minor offence or not. Having regard to the general mores of the

community, there may well be legitimate differences of opinion as to whether a particular offence should

be regarded as minor or non- minor.” (emphasis added)

It is argued by counsel for the appellant that in consequence of this judgment, and of the case cited therein, the question as

to whether an offence is minor or non minor is one essentially for the legislature. Although the legislature can decide to

delegate to a District judge the power to decide the issue, it may also delegate this function to the second respondent, and

that recent legislative provisions adopt the latter approach in preference to the former. Counsel further contends that the

older cases, cited by the second respondent, are all case in which the court was concerned with indictable offences triable

summarily pursuant to s.2(2) of the Criminal Justice Act, 1951, (“the Act of 1951”) and these decisions cannot be

considered as entirely relevant.

The question which arises, he says, is whether a District judge may decline jurisdiction, and if so, whether this is on the

basis of an inherent power, or because there is a constitutional right in an accused to a trial by jury for non minor offences,

or on other grounds. Counsel for the appellant argues the District Judge has no inherent power to do anything, other than

hear the charges which, at the option of the second respondent, have been prosecuted on a summary basis.

Finally, it is contended on the second issue raised in this appeal, that, even if the appellant is wrong in relation to the

foregoing main submissions and the first respondent can properly decline to dispose of the matter, he nevertheless lacks

jurisdiction to send the appellant forward for trial on indictment or to direct service of a book of evidence. If he was entitled

or even obliged to decline jurisdiction, he can only strike out the summons, there being no statutory power vested in him to

send an accused forward for trial in the circumstances which arose here, or to direct service of a book of evidence.

The second named Respondent’s submissions:

Ms McDonagh, counsel for the second respondent, invokes the same case of The People (DPP) v Dougan, supra., in

support of her argument. She submits that the learned High Court judge accurately summarised the practice in relation to

such offences the following terms:

“The ordinary interpretation given to sections such as these (i.e. sections 3 and 15 of the 1997 Act) is

that the option of trial on indictment or summarily is with the DPP. Unlike under s.2 of the Criminal

Justice Act, 1951, as amended, the accused has no say in the matter. The reality of what happens is that

an official in the Director of Public Prosecution’s office looks at the file and makes an estimate of the

maximum sentence the particular offence will attract and then directs summary trial or a trial on

indictment. The case is then processed in accordance with that direction. I infer that that is what

happened here.”

Counsel for the second respondent contends, however, that although this extract correctly reflects the practice in such cases,

her client has no role at all in the administration of justice as such, his functions being entirely administrative. In deciding

therefore whether or not to initiate a prosecution, he does not act judicially, relying in that regard on cases such as The State

(McCormack) v Curran [1987] I.L.R.M. 225, H v DPP [1994] 2 I.R. 589 and Eviston v DPP [2003] 1 I.L.R.M. 178. On

the other hand, the administration of justice pursuant to Article 38 of the Constitution is a judicial role, and is reserved to

judges. Counsel adopts as a correct statement of the law in that regard, the following extract from the judgment of the High

Court:

“The Director of Public Prosecutions conscientiously exercises an administrative function under the

Prosecution of Offences Act 1974. That function includes deciding who is to be prosecuted, for what

offence and in which court. The judicial function, in contrast to that, whether the trial is summary or on

indictment, always involves the setting of an effective and appropriate penalty if the accused is found

guilty.

Further, the duty of the District Court in dealing with offences which have a dual mode of trial

necessarily involves the court in assessing the facts and the potential penalty that a conviction may

attract. The only way to give effect to Article 38.5 is by the District Court assuming the jurisdiction to

ensure that the accused is afforded his or her constitutional right to a trial by jury where, on a judicial

assessment of the facts, the charge is not a minor one.”

It is submitted by counsel for the second respondent that if he was entitled to the ultimate choice of venue of trial in relation

to offences of the type in question in these proceedings, as is contended for by the appellant, the second named respondent

would thereby have a role in determining the parameters of any penalty which might ultimately be imposed, and would in

such circumstances, be impermissibly purporting to act judicially. That respondent does not, she says, argue or contend that

the Oireachtas has, in relation to hybrid offences, delegated to him the power ultimately to determine whether or not a

charge is minor, with the effect of depriving an accused of his right to a trial by jury in accordance with the Constitution.

Conclusion:

Both offences, that is to say the offence contrary to s.3 and that contrary to s.15 of the Non Fatal Offences Against the

Person Act 1997 fall into the description “hybrid offences”. These are well established but relatively recently created

offences. They are creatures of statute, and their essential characteristic for the purpose of this appeal, is that legislation

creating them provides that the charges can be disposed of on a summary basis or on indictment. The Act of 1997 contains

a number of such offences and is a good example of such legislation. Section 3 of that Act is in the following terms:

(1) A person who assaults another causing him or her harm shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable—

( a ) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,500 or to

both, or

( b ) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both.

S. 15 reads as follows:

(1) A person shall be guilty of the offence of false imprisonment who intentionally or recklessly—

( a ) takes or detains, or

( b ) causes to be taken or detained, or

( c ) otherwise restricts the personal liberty of, another without that other's consent.

(2) …

(3) A person guilty of an offence under this section shall be liable—

( a ) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12

months or to both, or

( b ) on conviction on indictment, to imprisonment for life. (emphasis added)

As will be seen, the offences are not classified at all in minor or non minor terms or indeed in any terms capable of being so

classified, but only by reference to the legal penalties to be imposed, which are in turn dependent upon whether the matter is

disposed of summarily or upon indictment. In the present case the precise penalty terms are not particularly relevant save in

one respect. Whereas on summary conviction there is a limited fine and possible imprisonment for a limited term of twelve

months in either case, in the case of conviction on indictment for a s.3 offence the maximum sentence is five years

imprisonment and a fine, or both. On the other hand, a s.15 conviction carries a maximum sentence on conviction on

indictment of imprisonment for life. The penalties on conviction on indictment, according to the established jurisprudence,

are reflective of offences properly classified as being non minor, an issue dealt with in detail in Melling v O Mathghamhna

[1962] I.R. 1, and in Conroy v Attorney General [1965] I.R. 411.

The issues which arise for consideration in this appeal do so entirely by virtue of the adoption by the Oireachtas of the so

called “hybrid offence” in modern legislation. There has been little case law on these specific offences. Hybrid offences

were also the subject of a recent decision of this court in Robinson v District Judge O’Reilly & The Director of Public

Prosecutions (unreported, the Supreme Court, 2nd July 2009). In a judgment which I delivered and with which the other

members of the court agreed, I dealt briefly with the traditional divide between minor and non minor offences, and between

summary offences and indictable offences, as well as with indictable offences capable of being tried summarily provided that

certain conditions are met, pursuant to the provisions of the Criminal Justice Act 1951. These latter offences, although

triable summarily, never become summary offences, as is clear from the decision of this court in Director of Public

Prosecutions v GG (a minor) (unreported, the Supreme Court, 2nd March 2009), in which Fennelly, J. in his judgment,

with which all members of the Court agreed, traced in detail the relevant case law. Such offences triable summarily, even

with the consent of the Director of Public Prosecutions, and even with the consent of the accused, were always subject to

the overriding requirement that the District judge was satisfied they were fit to be disposed of summarily, in other words that

they were minor offences, and relevant legislation provides an appropriate statutory mechanism for disposing of such

offences, either summarily or by sending forward for trial by a jury. The court in the former judgment also drew attention to

the true right of election which existed in the case of certain offences, where an accused could “elect” to be tried by jury.

In Robinson v District Judge O’Reilly & The DPP, supra., however, the issue for consideration was firstly, whether or not,

in relation to hybrid offences, such as those in the present case also, the Director of Public Prosecution is obliged to “opt” to

prosecute on a summary basis or on indictment within the six month limit provided for by s.10 of the Petty Sessions Act

1851, in the case of the trial of summary offences, and secondly, whether in the case of such hybrid offences, the accused

has any right to have a charge disposed of summarily where the DPP opts to proceed on indictment. The court determined

that no such right in an accused exists. The Court found that the discretion pursuant to the Act of 1997 is vested in the

second named respondent to opt to prosecute on a summary basis or on indictment, subject only to the right of the District

judge to decline jurisdiction in the case of a non minor offence. In that case, the question of the Oireachtas delegating any

exclusive right to the second named respondent to determine the classification of an offence, did not arise for consideration

and was not the subject of any contention or legal debate. On the other hand it is a central issue in the present appeal.

Offences falling within s.2 of the Act of 1997 for “simple” assault are, by the very nature of the language used, triable only

on a summary basis. Equally, an offence under s.4 of the same Act is worded in such a way that it is triable only on

indictment. No difficulty arises where an offence is clearly a summary offence. It is the District Court alone in such a case

which has sole jurisdiction (with certain exceptions which are not at all relevant to this appeal) to dispose of the matter. The

same ease of classification applies in the case of a s.4 offence, which is a purely indictable offence. In general, according to

the case law it is probably fair to say that a s.2 offence is a minor offence and an offence contrary to s.4 is a non minor

offence, notwithstanding that all the offences, under s.2, s.3 and s.4 are assault offences of one type or another. A different

situation however arises in the case of so-called hybrid offences, such as those under s.3 or s.15 because these are not so

self-evidently minor or non-minor offences. They fall to be considered by reference to the events and facts as disclosed to

the second named respondent, and, as the learned High Curt judge found, and by reference to his assessment of the penalty

those facts, if established, would likely attract. On the face of it, if he assesses the facts as likely to attract a sentence within

s.3(2)(a) he will proceed to prosecute on a summary basis.

It cannot, in my view, however, follow, that an offence which is prosecuted on a summary basis is, ipso facto, a minor

offence. It may well be so in most cases. On its most crude division, it might be said that once the Director of Public

Prosecutions decides to prosecute on a summary basis, it is a summary offence and if on indictment it is an indictable

offence. However, although minor offences will generally equate with those which can be disposed of on a summary trial

basis, and non minor ones with trials on indictment, it has clearly been recognised by the legislature that this is not always

the case. As Walsh in Criminal Procedure states:

“It is not possible however to determine whether an offence is serious or minor from its definition alone.

Inevitably there are offences the seriousness of which depends not so much on their definition but on the

circumstances in which they were committed. Accordingly there is a range of indictable offences which

statutorily can be tried summarily in certain circumstances.”

The most recognised collection of such offences are those listed in the first schedule to the Act of 1951 (as amended), which

does not need to be considered further by this court. I invoke it as an example of the recognition by the legislature that

minor and non minor offences are not definitively determined by reference to a summary of indictable classification. In that

particular legislative example indictable offences, ordinarily considered to be non minor, nevertheless encompass a

sufficiently large range of events that some, at least, can properly be classified as minor offences, and so triable on a

summary basis, provided certain conditions are met.

It seems to me that the applicant’s argument proceeds on a misunderstanding of the respective roles of the second named

respondent and of the District Judge in relation to hybrid offences. By virtue of their being identified as “hybrid” offences,

they lend themselves to being either minor or non minor offences. The appellant considers that, in law, it is essentially for

the Oireachtas to decide whether or not an offence is a minor or a non minor offence, a proposition which cannot not be

gainsaid, at least “in the first instance”, as was stated by Geoghegan, J. in The People (DPP) v Dougan, supra. The

appellant’s argument also proceeds on the basis that the Oireachtas is entitled to delegate the power to decide that issue of

classification to a District judge, but, significantly, that it may also delegate that function, and has done so, to the second

named respondent, on an exclusive basis. When it does so, as here, in the case of a hybrid offence, and the second

respondent opts to proceed in one way or the other, that is the end of the matter, and, it is said, where the second named

respondent has opted to proceed on a summary basis, the District Judge has no function or power to decide otherwise. As is

stated above, in the case of hybrid offences, the Oireachtas does not itself classify them at all, either under s.3 or s.15 of the

Act of 1997, or in the case of any other hybrid offence. At the opposite end of the scale to that covered by the Act of 1951,

the scheme of the Act of 1997, classifying the offences, as it does, by reference to the possible range of penalties imposable

on conviction, recognises that the hybrid offence may also cover a very wide ambit of severity of facts, from those which

clearly constitute a patently minor offence, to facts which constitute a very serious, non minor offence, as well as everything

in between. The scheme of the Act provides that, depending on the view of the second named respondent of the facts giving

rise to the offences, he opts to prosecute on one basis or another.

The contention on the part of the appellant appears to conflate the decision of the second respondent to opt to prosecute on

the basis of his assessment of the facts giving rise to the offence, with the classification of an offence as a minor or non

minor offence. Firstly, the appellant equates an exercise of his functions, with a determination that an offence is a properly

to be disposed of as a summary or indictable offence in all circumstances. Secondly, it conflates the decision by the second

named respondent to prosecute by a particular means, with the judicial decision as to how an offence is to be judicially

disposed of. However on all the authorities, his prosecutorial function is an administrative function only, not a judicial

function.

While the second named respondent can undoubtedly opt to prosecute on one basis or the other, it is not at all evident to me

that he is entitled in law to decide exclusively and conclusively, how the offence will be disposed of, nor, by opting to

proceed by summary prosecution, thereby to determine definitively that an offence is a minor offence. It is difficult to see in

the language used in the Act of 1997 or in any similar Act under which hybrid offences are created, any intention on the part

of the Oireachtas to vest such power in the second named respondent. Nor am I satisfied that the second named respondent

could contend for such power (and he does not), without having appropriate regard for construing and applying the

provisions of the Act of 1997 in a manner which complies with the Constitution.

The judgment of the learned High Court judge, from a jurisdictional point of view, falls squarely within the ambit of the

several cited judgments of this court, including the decision in The State (McKevitt) v Delap [1981] I.R. 125 in which the

historical development of the summary jurisdiction of the District Court was considered in depth by O’Higgins, C.J. In that

case it was, importantly, stated that the District Court of Justice, on the establishment of the State, became a court of

summary jurisdiction only, in relation to criminal matters, pursuant to the Courts of Justice Act 1924, as replaced or

amended. The District Court was also empowered, by the provisions of the Act of 1951, to try indictable offences

summarily. O’Higgins, C.J. helpfully stated:

“Apart from the transferred jurisdiction of the former justices of the peace and the proscribed

jurisdiction in relation to scheduled indictable offences under the Act of 1951, other statutes create

particular offences and provide for summary trial; these statutes in so providing, confer additional

jurisdiction on the District Court in relation to the new offences which are thereby created.” (emphasis

added)

My understanding of that judgment is that it determines that the District Court, as a creature of statute, has only such

jurisdiction as is specifically allocated to it by statute. That jurisdiction can be described in broad outline as comprising (a)

the transferred jurisdiction of the former justices of the peace; (b) such jurisdiction as exists in relation to indictable offences

scheduled to the Act of 1951; and (c) any specific jurisdiction to try specific offences pursuant to particular statutory

provisions. It has no other jurisdiction of any description to dispose of non minor offences. The finding of the learned High

Court judge also falls squarely within the ambit of the judgments of Henchy, J. in The State (McKevitt) v Delap, supra.,

when he gave reasons why a District Judge should not hear a case which is a non-minor offence, or should disengage in

such a hearing as soon as the facts indicate the true nature of the offence. In support of his findings, the learned High Court

judge also correctly invoked the decisions in State (McDonagh) v O’ hUadaigh (Unreported, High Court, 9th March 1979)

and The State (Holland) v Kennedy [1977] I.R. 193, in concluding that, if on the facts proved or on the hearing details of an

offence, it becomes clear to the District judge that it is not a minor offence, he is obliged to discontinue the hearing.

These conclusions were correctly arrived at on the basis that the jurisdiction of the District Court in criminal matters is

confined by statute to the trial of minor offences only.

Although counsel for the appellant suggests, correctly, that all the cases referred to and relied upon by the second named

respondent are cases involving s.2(2) of the Act of 1951, it seems to me that that is not an entirely relevant factor, since the

citations are those intended to establish only (a) that the jurisdiction of the District Court is purely a summary one, and (b)

that in the case of non minor offences outside its jurisdiction, it must decline jurisdiction. Further, this criticism of the

invocation of such case law does not in any event resolve the issue. Although these earlier cases frequently concerned

indictable offences triable summarily pursuant to the Act of 1951, the statements relied on concerning the limited nature of

the District Court’s jurisdiction are wholly applicable to the present appeal. On the other hand, it is necessary to approach to

the interpretation of the Act of 1997 in a manner which is consistent with the Constitution by finding, as is the case, that the

second named respondent seeks to prosecute, on a summary basis, only those offences which are properly within the

jurisdiction of the District Court, that is to say, minor offences.

When the second named respondent is given the power by statute to opt to prosecute on a summary basis or on the same

facts, on indictment, it cannot follow that the District judge thereupon becomes redundant vis a vis the court’s jurisdiction.

Nor in my view is there any suggestion whatsoever in the relevant legislation that the jurisdiction of the District Court to try

purely minor offences has been altered in any way. It does not have any jurisdiction to try even an indictable offence except

where legislation confers a particular power to dispose of such an offence summarily, as is clear from the judgment in The

State (McKevitt) v Delap, supra. Even in such a case, the facility to do so is subject always to the District Judge declining

jurisdiction where he is satisfied the offence it is not a minor one. He has no other jurisdiction in relation to non minor

offences. If the evidence discloses, either prior to the trial or during the trial, that the offence is a non minor offence, the

District court is not entitled, for the above reasons, to try such an offence. Once that is the case, the District Judge has no

actual or inherent jurisdiction to dispose of non minor offences and is obliged, of his own motion, to decline jurisdiction in

respect of any such offence. As was stated by McCarthy, J. in Feeney v District Justice Clifford [1989] I.R. 668 relied

upon by the learned High Court judge:

“I would endorse these views as so expressed but point out that they are confined to cases where a

district justice, having come to the immediate opinion that the facts alleged constitute a minor offence or

minor offences, may later change his mind on hearing the facts in more detail. If he does later conclude

that the facts proved takes the case out of the category of minor offence, then he must discontinue the

summary trial [and proceed in accordance with the provisions of the Criminal Procedure Act 1967].”

The limitation, it will be seen from the above, is twofold: Its jurisdiction since the foundation of the State, founded in

statute, is limited to that of a court of summary jurisdiction. By necessary consequence, it has no jurisdiction, or

competence, as it is sometimes called, to hear or determine any non minor offence. Secondly, any jurisdiction conferred by

statute to deal with a non minor offence may be subject in a particular case to the limitations imposed on the exercise of that

jurisdiction having regard to provisions of the Constitution in respect of a non minor offence. If a statute purported to confer

jurisdiction on the District Court to try a non minor offence, such a statute, while binding on the District Court, would be

open to being declared invalid in separate proceedings before the High Court challenging its constitutionality. It seems to me,

however, that the key matter for determination in this appeal is the issue of the actual jurisdiction of the District Court.

The learned High Court judge correctly analysed the nature of hybrid offences, the administrative role which the second

respondent exercises exclusively when he opts to prosecute on a summary basis or on indictment, and the correct, but very

different, judicial obligation on the District Judge to decline jurisdiction in respect of a hearing of non minor offences, having

regard to the limited jurisdiction of the District Court. Indeed the logic of the appellant’s argument would mean that on the

3rd of March 2005 objection should have been taken to the first respondent reading the statements in the book of evidence,

or even hearing any synopsis of the case from Sergeant Moynihan, or considering the medical report handed to him,

because on the appellant’s argument, at that point the District Judge had no function at all to make any determination that

the offences contrary to s.3 and s.15 of the Act of 1997, were offences which were “fit to be tried summarily” as the

appellant agrees did in fact occur. A summary trial of the charges would simply proceed before the District Judge, the

second respondent having exclusively determined the venue in which the offence, as classified by him, should be

determined.

I am satisfied for the foregoing reasons that the decision of the learned High Court judge refusing to grant judicial review

quashing the decision of the District judge to decline jurisdiction in the present case was correct.

I now turn therefore to the second issue. It will be recalled that on the second issue, counsel on behalf of the appellant

contended that even if the District judge was entitled to decline jurisdiction, on one or other of the above grounds,

nevertheless the District judge, had no statutory power vested in him in such circumstances to send forward an accused to

the next sitting of the Circuit Court, and did not have any power to adjourn the matter for service of a book of evidence, as

he did.

Under the provisions of the Act of 1951, the District judge is vested with a statutory power, once he has concluded that an

indictable offence is not apt to be tried on a summary basis, to send an accused forward for trial and direct the service of a

book of evidence. Analogous statutory provisions exist in relation to similar offences where created by other legislation of a

similar nature. This flows from the natural logic of any statutory scheme for the disposal of indictable offences on a

summary basis, and from specific statutory provisions vesting such powers in the District judge. Different considerations

arise in relation to hybrid offences, where no such specific power is provide by statute. I have been unable to find any

statutory general power vested in the District Court or in a District Judge, which permits any equivalent order to be made in

the case of non minor hybrid offences where the District judge has properly declined jurisdiction, and no such statutory

power was drawn to this Court’s attention by counsel on behalf of the second named respondent. Although all the academic

writings, including Walsh on Criminal Procedure, and Woods on District Court Practice and Procedure in Criminal Cases, as

well as the Report of the Working Group on the Jurisdiction of the Courts state that the District judge must send an accused

forward for trial if he considers the offence, in the case of a hybrid offence, not to be a minor offence, it is not at all clear on

what basis this is stated. While the case of Cumann Luthchleas Gael v Windle and another (unreported, Supreme Court,

22nd June 1993) is cited as supporting this latter contention by one of the authors, a consideration of that case makes it clear

that, although there were hybrid offences provided for under the Act in question, the sending forward was by reference to

an indictable offence triable summarily under another specific provision of the same Act. I do not consider, therefore, that it

is of assistance in resolving the issue.

Since the District Judge is obliged to decline jurisdiction, there is clearly an actual power vested in him to strike out the

proceedings, as the appellant contends, as being the only consequence which can flow from the determination that the

offence is not a minor offence. I am of the view that, in the absence of a statutory power to do anything further, this is the

correct conclusion. It does not, of course prevent the second named respondent from commencing proceedings again in

respect of the offence, on an indictable basis.

Fair Procedures:

Counsel for the appellant has contended that even if he is wrong in his argument on the above alleged altered role of the

second respondent and the consequences of that for the District Court, as a court of summary jurisdiction, there was a

breach of fair procedures, based on the following argument: (a) Firstly, the determination of whether or not an offence is fit

to be tried summarily must be based on the anticipated evidence and amounts to a judicial determination of that fact by the

first respondent, subject only to new circumstances coming to light; (b) it would be contrary to fair procedures if it were

otherwise as the accused would be “in the dark” in relation to the reality of his trial before the District Court up to the point

of conviction or acquittal; (c) he would not in fact know if his trial was really his trial all until its conclusion; (d) such an

eventuality would have to remain constantly in the mind of defence lawyers as they call evidence and cross-examine

prosecution witnesses; (e) an elaboration of testimony and cross-examination could well lead to an accused being suddenly

required to face an entirely different prospect in the Circuit Court. None of the foregoing could constitute unfair procedures.

The issues are not procedural. The trial takes place in the District Court in due course of law. If, because it transpires that

the trial must be stopped because the District Judge correctly concludes that the District Court has no jurisdiction on account

of the offence being a non minor one, the District Judge is doing what the law requires him to do for the reasons stated

above and as stated by Henchy, J. in The State (McKevitt) v Delap, supra., and as endorsed by this Court in Feeney v

District Justice Clifford, supra. It may appear to the defendant to be a negative step, but what the Court is doing is

ensuring that if an accused is to be tried, he is tried in accordance with due process of law, which inures to his benefit.

I would affirm the order of the High Court that the first named respondent was correct in law in declining to hear the charge

against the appellant on the basis that the events in question comprised a non minor offence in respect of which the District

Court had no jurisdiction. I would grant a declaration that the District Judge does not have power to adjourn the matter for

service of a book of evidence.