The High Court 

Director of Public Prosecutions v Judge Hamill and Deighan

1998/502 JR 
 
23 July 1999 

MCGUINNESS J: 

In these Judicial Review proceedings the Applicant who is the Director of Public Prosecutions seeks an Order of Certiorari quashing a return for trial made on the 19 February, 1998 pursuant to Section 8(1) of the Criminal Procedure Act, 1967 whereby the second named Respondent, Michael Deighan, was returned for trial before the Dublin Circuit Court on two charges alleging that he did on the 27 May, 1996 at the Four Courts Dublin in the Dublin Metropolitan District (a) commit an offence contrary to Section 7 of the Offences Against the State Act, 1939, as amended by Section 2(3) of the Criminal Law Act, 1976, and, (b) commit a criminal contempt of Court. The Applicant also seeks an Order remitting the said matters to the first named Respondent in order that they may be proceeded with in accordance with law. 

The grounds upon which the Director of Public Prosecutions seeks these Orders may be briefly set out as follows:- 

(1) The Order of Return for Trial was made in excess of and without jurisdiction in that the judge of the District Court had no jurisdiction to return the Accused to the Dublin Circuit Court on the charge that the second named Respondent committed an offence contrary to Section 7 of the Offences Against the State Act, 1939, since Section 25(2) of the Courts (Supplemental Provisions) Act, 1961 reserves to the Central Criminal Court jurisdiction over such offences. 

(2) There is an error on the face of the record in that the said Order of Return for Trial purports to return the Accused upon the said charge to the Circuit Criminal Court for Dublin City and County. 

The factual background is set out in two affidavits sworn by Patrick Geraghty, a Solicitor in the office of the Chief State Solicitor. The offences with which the second named Respondent has been charged are set out on a Bridewell Garda Station charge sheet as follows: 

"For that you the said accused, on May 27 1996, at the Four Courts, Dublin, in the Dublin Metropolitan District, did attempt to obstruct by intimidation the performance of one Liam Fenlon, an employee of the State, of his duties contrary to Section 7 of the Offences Against the State Act, 1939, as amended by Section 2(3) of the Criminal Law Act, 1976. 

For that you the said accused, on May 27 1996, at the Four Courts, Dublin, in the Dublin Metropolitan District, did commit criminal contempt of Court in that you uttered a threat to one Liam Fenlon, an employee of the State and as such involved in the organising of a response to applications relating to bail that are brought before the High Court, that he would be subject to violence if a certain application for bail that was due to be heard by that Court two days later did not result in the granting of bail, contrary to common law." 

Mr Geraghty exhibits the Book of Evidence with his affidavit but its contents is not particularly relevant to the issues raised in the present proceedings. 

It appears that depositions had been taken on a previous occasion in respect of the charges against the second named Respondent and on the 19 February, 1998 the first named Respondent made an Order pursuant to Section 8(1) of the Criminal Procedure Act, 1967 to the effect that he found that there was a sufficient case to put the second named Respondent on trial for the offences numbered 1 and 2 in the statement of charges. It also appears that it had previously been concluded by the Director of Public Prosecutions that an application to transfer the trial to the Special Criminal Court was not warranted and the Director had made a direction pursuant to Section 45(2) of the Offences Against the State Act, 1939 in respect of the charge under Section 7. However, it appears that Mr Geraghty, who was dealing with the matter in the District Court, did not advert to the fact that under Section 25(2) of the Courts (Supplemental Provisions) Act, 1961 offences under Section 7 of the Offences Against the State Act, 1939 must be dealt with in the Central Criminal Court rather than in the Circuit Criminal Court. Mr Geraghty was directing his mind, it appears, to the fact that the matter was not to go to the Special Criminal Court. 

Apparently the second named Respondent, Mr Deighan, raised a number of matters with the learned judge of the District Court in regard to jurisdiction as well as in regard to various other matters. Mr Deighan asserts that he did in fact raise the matter of Section 7 charges having to be dealt with in the Central Criminal Court and on the balance of probabilities I accept that he did. It is clear from Mr Geraghty's supplementary affidavit that the first named Respondent, Judge Hamill, was concerned as to which Court should try Mr Deighan on these charges and he adjourned the matter briefly for Mr Geraghty to consider the matter. However, Mr Geraghty still submitted that the charges should be heard before the Dublin Circuit Criminal Court and Judge Hamill made his Order of return for trial accordingly. 

The charges came on for trial before the Dublin Circuit Criminal Court on the 28 October, 1998 before His Honour Judge Cyril Kelly (as he then was). An indictment was laid against the second named Respondent containing the charges upon which he had been returned for trial. As a preliminary matter the second named Respondent raised the jurisdiction of the Circuit Criminal Court to deal with the offence contrary to Section 7 of the Offences Against the State Act, 1939, as amended, with which he was charged. Counsel for the Director of Public Prosecutions Ms Ni Raifeartaigh, submitted that the matter of jurisdiction was a matter for Judicial Review rather than for the learned Circuit Court judge. 

Judge Kelly held that the return for trial was valid on its face and accepted Ms Ni Raifeartaigh's submission. He held that the jurisdiction was a matter for the High Court. A jury was empanelled and the case was sent for trial to His Honour Judge Dominic Lynch. 

As a preliminary point the second named Respondent again raised the matter of jurisdiction and referred the learned Circuit Court judge to Section 25(2) of the Courts (Supplemental Provisions) Act, 1961. (The transcripts of the proceedings in the Circuit Court before Judge Kelly and Judge Lynch were handed in to this Court.) The second named Respondent read out a written submission in regard to the jurisdiction of the Court and mentioned case law to support his position. Counsel for the Director of Public Prosecutions opposed his application. The learned Circuit Court judge then adjourned the matter until 2 o'clock that afternoon to enable the second named Respondent to obtain legal representation. 

When the matter came on again before His Honour Judge Lynch that afternoon Counsel for the Director of Public Prosecutions informed the Court that she had taken specific instructions and that it was admitted that there was merit in the jurisdictional point made by Mr Deighan. In the circumstances she sought an adjournment. Judge Lynch then discharged the jury and adjourned the matter for mention to the 6 November, 1998. 

The Applicant sought leave to issue the present Judicial Review proceedings on the 21 December, 1998 and was granted leave on that day by this Court (Geoghegan J). In accordance with the Order of Geoghegan J and in conformity with Order 84 of the Rules of the Superior Courts the Applicant then issued a Notice of Motion returnable for the 1 February, 1999. The second named Respondent appeared on the return date of the Notice of Motion but contended that, while he accepted that he had been served with the other papers in connection with the Judicial Review, he had not been served with the relevant Notice of Motion and had merely noticed the case listed in the legal diary. The matter was listed before Mr Justice Quirke and having heard Counsel for the Applicant and the second named Respondent in person the learned Quirke J made an Order extending the time of service of the Notice of Motion for seven days from the 1 February, 1999 and allowed the second named Respondent four weeks within which to serve a Statement of Opposition. The proceedings were again listed before Kelly J on 26 April, 1999 when inter alia the learned judge ordered the second named Respondent to serve and file a Statement of Opposition by close of business on Friday 7 May, 1999. The second named Respondent filed a Statement of Opposition on 5 May, 1999. 

When the matter came on for hearing before me I was informed that the matter had been listed for hearing before Kelly J on the 30 June and the 9 July, 1999 and had been part heard by him. However, before the matter was concluded the second named Respondent raised an objection to the matter being heard by Kelly J and the learned Kelly J discharged himself from hearing the matter further. The matter was accordingly listed before me on the 14 July, 1999. Throughout these Judicial Review proceedings the second named Respondent has been unrepresented and has appeared as a personal litigant. 

Section 25 of the Courts (Supplemental Provisions) Act, 1961 provides as follows:- 

"25(1) Subject to subsection (2) of this section, the Circuit Court shall have and may exercise every jurisdiction as respects indictable offences for the time being vested in the Central Criminal Court and every person lawfully brought before the Circuit Court in exercise of such jurisdiction may be indicted before and tried and, if convicted, sentenced by the Circuit Court accordingly 

(2) The jurisdiction conferred on the Circuit Court by subsection (1) of this section shall not extend to treason, an offence under Section 2 or 3 of the Treason Act, 1939, an offence under Section 6, 7 or 8 of the Offences Against the State Act, 1939, murder, attempt to murder, conspiracy to murder, or piracy, including an offence by an accessory before or after the fact. 

(3) The jurisdiction vested in the Circuit Court by subsection (1) of this section shall be exercised by the judge of the Circuit in which the offence charged has been committed or in which the accused person has been arrested or resides." 

The remainder of the section is not relevant to the present proceedings. Section 2 5(2) has subsequently been extended to cover offences of genocide and rape offences, which also must be tried in the Central Criminal Court. 

It is clear from this section, as indeed was submitted by the second named Respondent from the beginning, that the offence with which he was charged under Section 7 of the Offences Against the State Act, 1939 fell to be tried in the Central Criminal Court. 

The Circuit Criminal Court had not jurisdiction to try this offence. Prima facie, therefore, the Order of Certiorari sought by the Applicant must be granted. 

In his Statement of Opposition and in the course of these submissions to me, however, the second named Respondent vehemently opposed the granting of the reliefs sought by the Applicant. 

The first, and indeed the main, ground on which the second named Respondent opposed the granting of the Order of Certiorari is that he was not served with the requisite Notice of Motion within the 21 days allowed by Geoghegan J, in his Order of 21 December, 1998, and that, once this 21 day period had expired, the Court had no power to extend the time of service. Thus the Order of Quirke J made on 1 February, 1999 extending the time for service for a further period of seven days was a nullity. Mr Deighan asserts that in making this Order Quirke J was offending against Article 34.5 of the Constitution. When the matter came on before Kelly J on 26 April, 1999 it seems that the learned judge rejected Mr Deighan's legal submissions in regard to notice and extension of time. The second named Respondent in his Statement of Opposition alleges that Kelly J consciously and deliberately offended his constitutional rights. 

In his submission that the learned Quirke J had no power to extend time for service of the originating Notice of Motion the second named Respondent relies on two cases. The first is that of The State (Fitzsimons) v Kearney [1981] IR 406. In that case the prosecutor obtained a conditional Order of Certiorari but failed to serve it on the Respondent within the 10 days prescribed by Order 84 Rule 45 of the then Rules of the Superior Courts. After the expiry of that period the prosecutor applied to the High Court for an Order enlarging the period for service of the Order. It was held by Finlay P as he then was, in dismissing the application, that a conditional Order stands discharged pursuant to Order 84 Rule 45 unless it is duly served (a) within the period of 10 days prescribed by that rule or (b) within such further period of time as may have been allowed by the High Court either when making that Order or before the expiry of the prescribed period of 10 days. The learned President also held that where a conditional Order of Certiorari stands discharged pursuant to Order 84 Rule 45 the provisions of Order 108 Rule 7 (which confers on the High Court a general power to enlarge any period of time which has been prescribed by the rules for doing any act and states that such power may be exercised although the application for the enlargement is made after the expiry of the relevant period) cannot be invoked to extend the period of time for service of that Order. At page 411 of the report the learned President stated 

". . . I am satisfied that the true position is that once a conditional Order has not been served within the time provided by the rule, or within any further time fixed by the Court either at the time when it makes the conditional Order or before it has been automatically discharged then that Order stands discharged under Order 84 Rule 45 and there is, therefore, no time limit in an existing or substantive proceeding capable of being extended under the provisions of Order 108 Rule 7. I am satisfied that I have not now got jurisdiction to extend the time for the service of the conditional Order granted by the High Court on the 28 July, 1978." 

However, earlier in the Judgment the learned President pointed out that a discharge of a conditional Order of this kind does not cause irretrievable mischief. At page 410 he states:- 

"A prosecutor who obtains a conditional Order and fails to serve it within the time limited is not barred, by reason of the discharge of that Order, from making afresh ex parte application for a conditional Order. If in the intervening time a period of six calendar months provided in Order 84, Rule 10, has elapsed after the date of an Order made by the District Court or the Circuit Court, there is still a clear discretion in the Court to grant in an appropriate case the new or fresh application for a conditional Order, notwithstanding that lapse of time." 

The second case referred to by Mr Deighan is that of The State (Flynn & O'Flaherty Limited) v The Lord Mayor Aldermen and Burgesses of the City of Dublin [1983] ILRM 125. In his Judgment in that case the learned Murphy J followed the Fitzsimons v Kearney case and held that a conditional Order of Certiorari is automatically discharged if it is not served within the time specified by the rule, or within any time fixed by the Court at the time of its making or by way of further Order before it had been automatically discharged providing that there are no existing or substantive proceedings capable of being extended. 

The second named Respondent argues that neither I nor any other judge of the High Court, including Quirke J and Kelly J, has the power to over-rule these Judgments given in the High Court by Finlay P and Murphy J. They are absolutely binding. 

Counsel for the Applicant, Mr McDonagh, leaving aside any argument as to whether the Judgment of another High Court judge, however respected, is in all cases binding on the High Court, rests his submission on the fact that the two Judgments to which the second named Respondent refers were given in the context of the former Rules of the Superior Courts and are not relevant to the 1986 Rules. Under the 1986 Rules of the Superior Courts Order 84 and the entire procedure for dealing with Judicial Review applications has been fundamentally changed. Mr McDonagh submits that under the former rules a conditional Order of Certiorari was made by the High Court in response to an ex parte application. The former Order 84 Rule 45 provided: 

"Every conditional Order shall be filed in the Central Office and served together with a copy of the grounding affidavit (if any) within 10 days from the day the same shall be pronounced unless further time be allowed by the Court: and in default thereof such conditional Order shall stand discharged" 

Once the Order was discharged there were no proceedings in being and therefore time for service could not be extended. However, as was pointed out by the learned Finlay P, this did not prevent the Applicant from seeking a new conditional Order. 

The position under the 1986 Rules was entirely different. Under the present Order 84 the Applicant seeks leave under Rule 20 to issue his Judicial Review proceedings. Under Order 84 Rule 22(1) "An application for Judicial Review shall be made by originating Notice of Motion unless the Court directs that it should be made by Plenary Summons". Once the Notice of Motion or the Plenary Summons has been issued there are proceedings in being. 

Under Rule 22(3) and (4) time limits are set for the service of the Noticed of Motion and for the filing of a Statement of Opposition. Mr McDonagh submitted that these were of the same nature as time limits set for the filing and service of documents in other types of proceedings under the rules and Order 122 Rule 7 (which is the equivalent of the old Order 108 Rule 7) equally applies to them. 

Order 122 Rule 7 provides: 

"The Court shall have power to enlarge or abridge the time appointed by these rules, or fixed by any Order enlarging time, by doing any act or taking any proceeding, upon such terms (if any) as the Court may direct, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed" 

Thus, Mr McDonagh argued, the learned Quirke J had power to make the Order which he did and the subsequent service of the Notice of Motion on Mr Deighan was proper service. 

Mr McDonagh also drew attention to the provisions of Order 84 Rule 22(3) in particular as referring to Rule 20(7). Under Rule 20(7), where leave to apply for Judicial Review by way of Certiorari is granted and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the Judicial Review application or until the Court otherwise orders. Under Rule 22(3) if the Notice of Motion or summons as the case may be is not served within 14 days after the grant of leave or within such other period as the Court may direct, the stay of proceedings referred to in Rule 20(7) shall lapse. Mr McDonagh points out that it is only the stay of proceedings that is to Lapse and not the Judicial Review proceedings themselves. This is, he submits, in stark contrast to the position where a conditional Order is specifically discharged. 

It appears to me that Mr McDonagh is entirely correct in his submissions. The present proceedings are governed by Order 84 of the Rules of the Superior Courts 1986. The Judgments to which the second named Respondent refers deal with the discharge of a conditional Order which does not arise under the present procedure and they therefore do not apply to the situation in the instant case. The second named Respondent was therefore correctly served with the Judicial Review proceedings following the Order of Quirke J. 

The second named Respondent, in his Statement of Opposition also draws attention to the general delay in the bringing of Judicial Review proceedings by the Applicant. The impugned Order of the first named Respondent returning the Applicant for trial was made on the 19 February, 1998; the ex parte application for leave to issue Judicial Review proceedings was not made until 21 December, 1998. This, the second named Respondent submits, is by a long way outside the time limit of six months set out in Order 84 Rule 21(1). 

Order 84 Rule 21(1) provides: 

"An application for leave to apply for Judicial Review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is Certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made." 

Counsel for the Applicant admits that at the time of the ex parte application on the 21 December, 1998 no application was made for an extension of time under Rule 21(1), and he now asks this Court for an extension of time. He points out that the Applicant did not become aware of the need to apply for an Order of Certiorari until the second named Respondent came up for trial before the Circuit Court on the 28 October, 1998 and that there was no undue delay between that date and the date of the ex parte application on 21 December, 1998. He admits that at the time of the making of the ex parte application he himself was concentrating on the time that had elapsed between the 28 October, 1998 and the 21 December, 1998 and did not advert to the fact that the need for Certiorari arose on the making of the original Order in the District Court. 

It is open to this Court to extend the six month period within which application for an Order of Certiorari should be made; this is a matter for the discretion of the Court. In the present case I would accept that the Applicant was unaware of the need to seek Judicial Review until the 28 October, 1998, although it could well be said that that lack of awareness was due to his own inadvertence and to his failure properly to consider the submissions made by Mr Deighan in the District Court. However, on considering the offences as charged and the Book of Evidence as exhibited in the affidavit of Mr Patrick Geraghty it does not seem to me that the second named Respondent is prejudiced by the delay in applying for Judicial Review and I would accept that there is good reason, based on the fact that the effect of Section 25(2) of the Courts (Supplemental Provisions) Act, 1961 did not become clear until 28 October, 1998, for this Court to grant an extension of time in favour of the Applicant. 

The second named Respondent also complains that the affidavits of Patrick Geraghty, Solicitor, do not "verify" the facts relied on in the Applicant's Statement as required by Order 84 Rule 20(2)(b). I believe that this submission is based on misunderstanding of the phraseology of the rule. The rule requires that the facts relied on should be set out in an affidavit; it does not require that the actual word "verify" must be used in the affidavit. The first paragraph of Mr Geraghty's affidavit, which is in the standard form, avers the truth of what is set out in the body of the affidavit and this is confirmed by the jurat. The body of the affidavit sets out the same facts as are relied on in the Statement of Grounds, and thus states their truth, or "verifies" them. 

The second named Respondent's Statement of Opposition, and his submission to this Court, also contain allegations that both the first named Respondent and the two Circuit Court judges, Judge Kelly and Judge Lynch, deliberately and consciously offended the second named Respondent's fundamental legal and constitutional rights. There is no basis whatsoever for this allegation. The judges concerned may have erred in accepting that the Circuit Criminal Court had jurisdiction to try the offence with which the second named Respondent was charged pursuant to Section 7 of the Offences Against the State Act, 1939, but there is no evidence whatsoever that they did so purposely or with deliberation, or with the intention of damaging the right of the second named Respondent to a fair trial. I completely reject this submission. A fortiori I completely reject the similar accusations made by the second named Respondent against Mr Justice Quirke and Mr Justice Kelly of this Court. 

Accordingly, I will grant the relief sought by the Applicant by making an Order of Certiorari quashing the Order made by the first named Respondent on the 19 February, 1998 returning the second named Respondent for trial, and by making an Order remitting the matter to the first named Respondent. In doing so I stress that the Applicant should take all available steps to ensure that the matter now proceeds with the least possible delay.