Kelly & anor -v- Judge Ryan & others [2015] IESC 69 (30 July 2015)

Judgment

Title:

Kelly & anor -v- Judge Ryan & others

Neutral Citation:

[2015] IESC 69

Supreme Court Record Number:

402/13

High Court Record Number:

2012 436 JR

Date of Delivery:

30/07/2015

Court:

Supreme Court

Composition of Court:

Denham C.J., Hardiman J., O'Donnell Donal J., Clarke J., Dunne J.

Judgment by:

Clarke J.

Status:

Approved


Judgments by	Link to Judgment	Result	Concurring
Clarke J.	Link	Appeal allowed	Denham C.J., Hardiman J., O'Donnell Donal J., Dunne J.

___________________________________________________________________________

THE SUPREME COURT

[Appeal No: 402/2013]

Denham C.J.
Hardiman J.
O’Donnell J.
Clarke J.
Dunne J.

Between/

Mary Kelly and Declan Buckley

Applicants/Appellants

and

District Judge Ann Ryan

Respondent

and

Patrick Halpin

Notice Party/Respondent

and

Director of Public Prosecutions

Amicus Curiae

Judgment of Mr. Justice Clarke delivered the 30th July, 2015.

1. Introduction
1.1 One of the more significant evolutions in criminal practice over the last number of years has been the change in both the law and the practice in relation to private criminal prosecutions. In the past, many criminal prosecutions were brought as private prosecutions even if the prosecutor was acting as a public official such as a member of An Garda Síochána. It will be necessary to refer briefly in due course to the somewhat different evolution of the private prosecution system within the respective criminal laws of Ireland and the United Kingdom. However, it can hardly be denied that the trend has been towards the replacement of the private prosecution with a prosecution formally brought by a public official. The question which arises on this appeal concerns the legal position today, in this jurisdiction, in relation to private prosecutions.

1.2 The applicants/appellants (“Ms. Kelly” and “Mr. Buckley” respectively) were officials of the Irish Bank Resolution Corporation Limited (“IBRC”). In that context they had dealings with the notice party/respondent (“Mr. Halpin”). Mr. Halpin was aggrieved by the way he had been treated in the course of those dealings and, it would appear, took the view that at least some element of the way in which Ms. Kelly and/or Mr. Buckley had dealt with him amounted to a criminal offence on their part. He swore an information before the respondent District Judge who, in turn, made an order providing for the issuing of summonses requiring the attendance of respectively Ms. Kelly and Mr. Buckley before the District Court to answer criminal charges under the Criminal Justice (Theft and Fraud Offences) Act 2001 (“the 2001 Act”).

1.3 Ms. Kelly and Mr. Buckley brought judicial review proceedings in the High Court seeking to quash the decision of the respondent District Judge (which decision was made on the 5th March, 2012, under s.10 of the Petty Sessions (Ireland) Act 1851 (“the 1851 Act”) and O.15, r.1(3) of the Rules of the District Court 1997) to issue the summonses in question. They also sought consequential relief including a stay.

1.4 The High Court (Hogan J.) delivered a judgment in the judicial review proceedings on the 9th July, 2013, and dismissed the application brought. Ms. Kelly and Mr. Buckley have appealed to this Court against that finding. Mr. Halpin argued in favour of upholding the decision of the High Court. The amicus curiae (“the D.P.P.”) made certain submissions which were not directed to the merits of this case as such but rather were concerned with the proper interpretation of the law on private prosecutions generally in the light of recent legislative developments. Against that general background it is appropriate to start by referring to the three discrete issues which were before both the High Court and this Court on appeal.

2. The Issues
2.1 The most far reaching issue arose from a contention made on behalf of Ms. Kelly and Mr. Buckley to the effect that an indirect consequence of a range of recent legislative developments was to create a situation whereby the private prosecution of criminal offences is no longer legally possible. It will be necessary to look in more detail at the legislative interventions concerned in due course. It is, however, common case that no express provision is to be found in that legislation terminating the private prosecution of criminal offences. Equally, it cannot be doubted but that the relevant legislation has significantly circumscribed such prosecutions. The real issue between the parties is as to whether, as is argued on behalf of Ms. Kelly and Mr. Buckley, the extent to which legislation has circumscribed the private prosecution is so great that such prosecutions can no longer properly be said to continue to exist.

2.2 The second issue is more narrowly focused and concerns the information sworn in this case and the summonses issued as a result of the decision of the respondent District Judge based on that sworn information. As will appear from the facts, the summons in each case alleged a breach of s.6 of the 2001 Act. In substance, the argument put forward was that the sworn information and the summonses failed to deal with some important elements or ingredients of that offence so that, it was argued, the summonses were not validly issued.

2.3 The third ground centred on an allegation of abuse of process. In a sense, there was a connection between the argument which arose under that heading and the question of the extent to which the legislation to which I have referred may have limited the scope of the private prosecution or, indeed, as the primary argument advanced on behalf of Ms. Kelly and Mr. Buckley suggests, whether it abolished the jurisdiction entirely. Counsel for Ms. Kelly and Mr. Buckley argued, however, that even if he was wrong in suggesting that the proper interpretation of the law in the light of those legislative developments was that private prosecution no longer continued to exist, it remained the case, it was suggested, that the purpose of private prosecution had, on any view, become extremely limited. In the light of the facts surrounding the circumstances in which these private prosecutions were commenced and progressed, it was argued that, having regard to the limited remaining purpose of private prosecution, these prosecutions could not, it was said, have been bona fide commenced for the purposes of that limited function.

2.4 Before going on to consider the judgment in the High Court, it is necessary to go into some greater detail both as to the facts and the legislative measures to which reference has been made.

3. The Facts
3.1 Mr. Halpin alleges that he was invited to attend a meeting, apparently arranged at short notice, with Ms. Kelly and Mr. Buckley at IBRC on the 17th February, 2012. This occurred two days after demands had been served on two companies of which Mr. Halpin was a director and shareholder, namely Elektron Holdings Limited and Crossplan Investments Ltd., seeking repayment of sums totalling in excess of €25 million. Mr. Halpin attended this meeting with his accountant, a Mr. Aiden Murphy of Horwath Bastow Charleton, Chartered Accountants. Mr. Halpin states that he was under the impression that the purpose of the meeting was to continue a process whereby those two companies could continue to trade while arrangements were being made or implemented in relation to the repayment of monies owing. However, Mr. Halpin alleges that at the time the meeting took place, Ms. Kelly and Mr. Buckley were aware that a decision had already been made to appoint a receiver to both companies. Mr. Halpin claims to have suffered financial loss as a result of the failure to inform him of that decision, and states that at no stage during the meeting concerned did IBRC make it known to him or to Mr. Murphy that a decision had been made to appoint receivers to the companies. It should be noted that Ms. Kelly and Mr. Buckley contest Mr. Halpin’s account of the facts.

3.2 Following the meeting of the 17th of February, and the subsequent appointment of a receiver over the relevant companies, Mr. Halpin attended at Dublin District Court 8 in the Four Courts, Dublin before the respondent District Judge and made an application for a summons under s.10(4) of the 1851 Act. Mr. Halpin states in his affidavit sworn on 7th June, 2012, that during this application, he handed in a written information and that he also made oral submissions and answered questions put to him by the respondent District Judge. However, Mr. Halpin does not outline, in that affidavit or elsewhere, what he said during that application, on foot of questions put to him by the Judge or otherwise.

3.3 In that context, it is important to set out the exact content of the sworn information which was laid before the District Court Judge, as that material goes to the heart of the matter before this Court.

3.4 The text of that sworn information is as follows:

1. I am a director of two limited companies known as Elektron Holdings Limited and Crossplan Investments Limited which have their registered offices at 53-55 Park Avenue, Sandymount, Dublin 4. The companies operate hotels and guest houses. From 2008 the companies have had a difficult trading environment and have expended a large sum of money in refurbishing a large property on the Merrion Road in Dublin 4, known as Merrion Hall.

Since 2008 the companies have worked with their bankers, Irish Nationwide Limited (now absorbed into the Irish Bank Resolution Corporation) to trade out of their difficulties. Elektron Holdings Limited and Crossplan Investments Limited have engaged the services of Howarth Bastow Charleton, Chartered Accountants of Marine House, Clanwilliam Court, Dublin 2 to negotiate with the bank.

2. In the period from July 2011 Howarth Bastow Charleton engaged in a lengthy process with the bank and it was acknowledged that the borrower had co-operated fully and been entirely open in its dealings. It was noticed however that at least one of the loans involving the companies had been seriously overcharged and the bank was queried about this around January 2012. On 17th February 2012 Mr. Aidan Murphy of Howarth Bastow Charleton was asked at short notice to attend a meeting with Mr. Declan Buckley and Ms. Mary Kelly at 2, Grand Parade Dublin 6. He was advised that the purpose of the meeting was to confirm that I would continue to co-operate and facilitate the sale/realisation of value of Merrion Hall on a consensual basis so that the Bank and I could work forwards towards maximising the recovery amount for the taxpayer. To that end I had a meeting with Mr. Murphy in advance of the meeting with both accused which was at 8.30AM and lasted until 10.15Am.

3. We attended the meeting and left with the impression that there had to be consultation with a higher level in the bank and that they would revert with proposals for a further meeting on Wednesday or Thursday of the following week.

4. Unknown to both myself and Mr Murphy a decision had already been taken to appoint a receiver to both companies and the necessary paperwork had been prepared and was waiting for a final stamp at the close of business. Mr. Murphy accountant and I were informed of this at 4.00 in the afternoon. The receiver contacted me and asked for the keys of my home which is owned by the Elektron Holdings Limited

5. Mr Murphy wrote a letter of complaint to Mr. Buckley and received a reply showing clearly that both accused had known that a receiver was to be installed at the time of the meeting and had deliberately concealed this knowledge from us Mr. Murphy cannot recover the professional fees due to him and would not have participated in the meeting had he been aware of the situation, and neither would I. Loss was thereby caused to us both.

6. I believe that Declan Buckley and Mary Kelly have committed the following offence within the jurisdiction of this Honourable Court:

1) By deception, with the intention of making a gain for themselves, or of causing loss to another, at 2, Grand Parade, Dublin 6, on or themselves (sic) or about the 17th of February 2012, falsely represented to Patrick Halpin a director of Elektron Holdings Limited , and Aidan Murphy and accountant instructed on behalf of Elektron Holdings Limited, that your employer the Irish Bank Resolution Limited (sic) was prepared to continue a process engaged in between it and Elektron Limited whereby Elektron Holdings Limited would be enabled to trade normally, contrary to Section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

And the informant binds himself to attend when and where called on to give evidence against the said accused for the said offence, or otherwise to forfeit to the State the sum of € to the use of the Minister for Finance.”

(Signed Patrick Halpin, Informant, on the 5th day of March 2012).

3.5 The summons as issued in respect of each case states:-

“…that you,

on or about the 17th February 2012 at 2, Grand Parade, Dublin 6,

By deception, with the intention of making a gain for yourself or another, or of causing loss to another, falsely represented to Patrick Halpin a director of Elektron Holdings Limited, and Aiden Murphy an accountant instructed on behalf of Elektron Holdings Limited, that your employer the Irish Bank Resolution Limited (sic) was prepared to continue a process engaged in between it and Elektron Limited whereby Elektron Holdings Limited would be enabled to trade normally, contrary to Section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001.”

3.6 In light of the service of these summonses, Ms. Kelly and Mr. Buckley sought legal advice as to how best to protect their position. In this context, they sought to engage with the solicitor for Mr. Halpin, as prosecutor, with a view to ascertaining whether or not consent of the D.P.P. had been obtained under the provisions of s.53 of the 2001 Act in relation to the matter being disposed of in the District Court, or in other words, summarily. However, it is said on behalf of Ms. Kelly and Mr. Buckley that this engagement proved fruitless. In the course of correspondence, Mr. Halpin’s solicitor refused to provide any clarification as to whether or not the D.P.P. had been consulted in relation to the prosecution. In the ensuing correspondence, when notified of the intention of Ms. Kelly and Mr. Buckley to mention the matter before the District Judge, Mr. Halpin’s solicitor described such action as “forum shopping”. That letter, dated 15th May, 2012, further states:

“In the circumstances, in the event of the matter coming properly before Judge Ryan at any time, we will bring the contents of your letter to her notice and apply to Judge Ryan to recuse herself from any further dealing with the matter. We are concerned that any appearance by us may contaminate the prosecution and we would not appear without the approval of the DPP who will have charge of the prosecution in the later stages.

We are not prepared in the circumstances to disclose any communications between the prosecutor and the DPP. The obligation on us under the Criminal Justice (Theft and Fraud Offences Act) 2001 is simply on an application to try the matter summarily, to inform the court that the DPP has consented to summary disposal. There is no obligation to have notified the defence in advance, and indeed it frequently happens that directions from the DPP are not available on the first appearance before the District Court. You (sic) clients are in no different a position than any other defendant before the court on charges under the Theft Act and you should have no more difficulty in advising your clients than any solicitor advising a client in respect of a prosecution brought in the name of the DPP.”

As a result, Ms. Kelly and Mr. Buckley initiated their challenge by way of Judicial Review.

3.7 During the course of these proceedings, Ms. Kelly and Mr. Buckley’s legal team sought discovery from Mr. Halpin of, among other things, all “communication, correspondence, notes or other documentation relating to/or evidencing any interaction between the Notice Party and/or his Solicitor and the Office of the Director of Public Prosecutions in respect of the offences alleged against the Applicants in the Summonses the subject matter of the within proceedings.” This discovery was resisted by Mr. Halpin, who maintained that he was not obliged to disclose whether he had been in contact with the D.P.P. In any event, by direction of the High Court (Hogan J.) the D.P.P. was invited to participate in the proceedings as amicus curiae, and in that context, the D.P.P. confirmed that there had been no contact or communication with her office by Mr. Halpin.

4. The Legislation
4.1 Since the entry into force of the Courts (No. 3) Act 1986, two parallel systems for the issue of summonses in criminal matters have co-existed in Irish law. The first system, and that which is relevant to the matter before the Court, is the Common Informer system under the 1851 Act. The second arose following the decision of this Court in State (Clarke) v. Roche [1986] I.R. 619, when it became necessary to introduce a new system for the routine issue of summonses following application by members of the Gardaí and other law enforcement personnel. This latter system, as introduced by the Courts (No. 3) Act 1986, as amended by the Civil Liability and Courts Act 2004, is essentially an administrative process which does not require consideration of an information or complaint by the issuer of the summons, and it provides for applications for summonses by the Attorney General, the D.P.P., a member of the Gardaí, or “any person authorised under an enactment to bring and prosecute proceedings for the offence concerned.”

4.2 The historical position of private prosecutions in Ireland is fully and concisely set out in the dissenting judgment of O’Higgins C.J. in People (D.P.P.) v. Roddy [1977] I.R. 177. It is not necessary, therefore, to repeat that history here. However, it is worth mentioning that in State (Clarke) v. Roche [1986] I.R. 619, this Court held that the issuing of a summons on foot of a complaint was a judicial, not an administrative act. As pointed out in O’Malley, The Criminal Process, at para. 15.23 “… the Court indicated that it would be quite acceptable if statutory provision were made for summonses to be issued as a matter of administrative procedure, thus removing the need for complaints to be considered in a judicial manner”. The response of the Oireachtas was to enact the Courts (No.3) Act 1986. Further, in The State (Ennis) v. Farrell [1966] I.R. 107, this Court held that a private individual may conduct a prosecution in respect of an indictable offence not triable summarily up to the return for trial. Thereafter, under the applicable law at that time, the Attorney General became the sole person with charge of the prosecution and the private prosecutor was required to yield place to him.

4.3 It is worth emphasising, however, that until relatively recently, many prosecutions brought in the District Court by members of the Gardaí were brought as private prosecutions by the members in question on foot of the common informer system. This situation has been altered by the Garda Síochána Act 2005, s.8 of which provides that a member of the Gardaí may institute and conduct criminal proceedings in a court of summary jurisdiction, but only in the name of the D.P.P. Otherwise, no member of the Gardaí may initiate a prosecution in the course of their duties.

4.4 The somewhat different position under English law was recently analysed at length by the United Kingdom Supreme Court in R (Gujra) v. Crown Prosecution Service [2013] 1 AC 484. In the UK, the D.P.P. has an express statutory right under s.6 of the Prosecution of Offences Act 1985 to take over any private prosecution. There is no similar provision in Ireland.

4.5 At this point, it is necessary to consider certain legislative developments in respect of the role of the common informer in Ireland, the role of the D.P.P. in relation to private prosecutions, and the jurisdiction of the District Court.

4.6 The jurisdiction of the District Court, as provided in the Criminal Procedure Act 1967, (“the 1967 Act”) was substantially amended by the Criminal Justice Act 1999 (“the 1999 Act”). Counsel for the D.P.P. suggested in his submissions to the Court that these amendments were necessitated by the decision to abolish the traditional practice of holding a preliminary investigation in the District Court to determine if sufficient grounds existed for sending a person forward for trial on indictment to a higher court.

4.7 The 1999 Act inserted a new Part 1A after s.4 of the original 1967 Act, bearing the heading “Proceedings Relating to Indictable Offences”, s.4A of which provides:

(1) Where an accused person is brought before the District Court charged with an indictable offence, the Court shall send the accused forward for trial to the court before which he is to stand trial (the trial court) unless -

(a) the case is being tried summarily,

(b) the case is being dealt with under section 13, or

(c) ….(repealed by Criminal Law (Insanity) Act 2006).

(2) The accused shall not be sent forward for trial under subsection (1) without the consent of the prosecutor.

(3) Where the prosecutor refuses to give a consent required under subsection (2) in relation to an indictable offence, the District Court shall strike out the proceedings against the accused in relation to that offence.

(4) The striking out of proceedings under subsection (3) shall not prejudice the institution of proceedings against the accused by the prosecutor.

(5) The accused shall not be sent forward for trial under subsection (1) until the documents mentioned in section 4B(1) have been served on the accused.

4.8 Section 8 of the 1999 Act substituted a new s.4 in the 1967 Act which provides the definition of the term “the prosecutor” as follows:

(1) In this Act ‘the prosecutor’ means, in relation to an offence-

(a) in Part IA and section 13, the Director of Public Prosecutions, and

(b) in Parts II and III, other than section 13 -

(i) the Director of Public Prosecutions,

(ii) a person prosecuting the offence at the suit of the Director of Public Prosecutions, or

(iii) a person authorised by law to prosecute the offence.

(2) Notwithstanding subsection (1), references to the prosecutor in Parts 1A, II and III shall be construed, in relation to offences for which proceedings may not be instituted or continued except by, or on behalf or with the consent of, the Attorney General, as references to the Attorney General.”

4.9 Reading these provisions together, it is clear that a person may not be sent forward by the District Court for trial on an indictable offence except with the consent of the D.P.P.. If the D.P.P. does not consent, the matter must be struck out, but without prejudice to the later institution of proceedings against the accused by “the prosecutor”. Again, the prosecutor in that instance is the D.P.P. in accordance with s.8 of the 1999 Act.

4.10 Further, in relation to the role of the D.P.P., the following provisions are relevant. First, s.9 of the Criminal Justice (Administration) Act 1924 provides:

“(1) All criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney-General of Saorstát Eireann.

(2) Save where a criminal prosecution in a court of summary jurisdiction is prosecuted by a Minister, Department of State, or person (official or unofficial) authorised in that behalf by the law for the time being in force, all prosecutions in any court of summary jurisdiction shall be prosecuted at the suit of the Attorney General of Saorstát Eireann.”

4.11 This must now be read in conjunction with the Prosecution of Offences Act 1974 which transferred the Attorney General’s functions in criminal matters to the D.P.P. Furthermore, Art. 30.3 of the Constitution of Ireland provides:

“All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose.”

4.12 The cumulative effect of these provisions is that a private prosecution can not be tried on indictment unless the D.P.P. is prepared to take it over.

4.13 It is also worth noting that s.13 of the 1967 Act provides that a person charged before the District Court with an indictable offence (subject to exceptions provided in that section) may be dealt with summarily if he or she pleads guilty, though the person may also be sent forward for sentencing under that section. However, since that Act was amended by the 1999 Act, the consent of the D.P.P. is also required for those purposes.

4.14 In the context of this appeal, it is also important to note the content of the provisions setting out the offence which is alleged against Ms. Kelly and Mr. Burke. Section 6 of the 2001 Act provides:

(1) A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception induces another to do or refrain from doing an act is guilty of an offence.

(2) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.”

4.15 This must, of course, be read in conjunction with s.53 of that Act, as amended by the Fines Act 2010, and which provides:

“(1) The District Court may try summarily a person charged with an indictable offence under this Act if-

(a) the Court is of the opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily,

(b) the accused, on being informed by the Court of his or her right to be tried with a jury, does not object to being tried summarily, and

(c) the Director of Public Prosecutions consents to the accused being tried summarily for the offence.

(2) On conviction by the District Court for an indictable offence tried summarily under subsection (1) the accused shall be liable to a class A fine within the meaning of Part 2 of the Fines Act 2010 or imprisonment for a term not exceeding 12 months or both such fine and imprisonment.”

(Emphasis added)

4.16 Therefore, it is clear that under this legislation, in order for this offence to be tried summarily, the consent of the D.P.P. is a requirement.

4.17 In summary, therefore, it is clear that an indictable offence cannot be tried on indictment unless the D.P.P. (formerly the Attorney General) is prepared to take it over. It is also clear that prosecution for an offence such as that which arises in this matter can only be tried summarily with the consent of the D.P.P.

4.18 Against that background, it is next necessary to turn to the judgment of the trial judge.

5. The High Court Judgment
5.1 In the High Court, Hogan J. disagreed with the argument that the right of private prosecution has been indirectly affected by the abolition of the preliminary examination procedure by the 1999 Act, finding that, in light of The State (Ennis) v. Farrell, clear and express statutory language would be required for this purpose. The trial Judge stated that “[t]he special and varying definitions of the word “prosecutor” now contained in s.4 of the 1967 Act (as inserted by s. 8 of the 1999 Act) provides clear indication that the Oireachtas, so far from evincing an intention to abolish the right of private prosecution, actually intended to preserve it.”

5.2 In respect of the abuse of process ground, Hogan J. held that “[t]he mere fact that the private prosecutor, Mr. Halpin, seeks to assuage a private grievance regarding the conduct of IBRC does not in and of itself render abusive this private prosecution, since the vindication of private grievances is nearly always a motivation for the private prosecutor.” Further, while assessing the evidence to support the prosecution as seeming “slender and tenuous”, the Judge stated “I do not feel that I would be justified in taking a step which is (almost) unprecedented in this jurisdiction and to quash a summons on grounds of unreasonableness. This would represent a far-reaching intrusion into the exclusive domain of the District Court and it would require quite exceptional circumstances before this Court could take such a step.”

5.3 However, in terms of procedure, Hogan J. concluded that having commenced the prosecution, “in view of the provisions of s. 53 of the 2001 Act and Article 30.3 of the Constitution, no further step in that process can be taken without the express consent of the Director of Public Prosecution.” Absent such positive consent, Hogan J. noted, the prosecution must be struck out by the District Court.

5.4 It is against that judgment that this appeal is brought. Each of the three issues which were determined by the trial judge was the subject of this appeal. As already noted there are, however, certain connections between at least some of those issues. I, therefore, propose to start by considering the question of the role of a private prosecutor once the prosecution has been initiated.

6. The Role of the Private Prosecutor
6.1 For present purposes I will assume that, contrary to the argument put forward on behalf of Ms. Kelly and Mr. Buckley, a private prosecution can still be initiated for an indictable offence. The offence with which we are concerned on this appeal is, of course, an indictable offence which can be tried summarily. It is not, however, a summary offence. Different considerations apply to offences which can only be tried in a summary fashion.

6.2 In any event, it is clear, for the reasons already addressed, that an offence such as the one which is the subject of these proceedings can only be tried summarily if the consent of the D.P.P. is forthcoming. That situation pertains irrespective of who initiated the relevant proceedings. The procedures to be followed in the case of such an offence which is not being disposed of summarily are set out in s.4A of the 1967 Act in its amended form after the passage of the 1999 Act. Section 4A is to be found in Part 1A of that legislation. In those circumstances it is clear, from the amendment inserted by s.8 of the 1999 Act, that the term “the prosecutor” for the purposes of part 1A is the D.P.P. and no other person except in respect of those very limited categories of offences where proceedings may not be instituted or continued without the involvement of the Attorney General. That exception has no application to this case.

6.3 It follows that the trial judge was correct in holding that nothing can happen to bring a criminal charge to trial in the case of an indictable offence without the agreement of the D.P.P. Even if it is possible for a common informer to commence the proceedings by swearing an information and persuading a District Judge to issue a summons, the case cannot progress to trial on indictment without the D.P.P. being prepared to take it over and the case cannot be tried summarily without the consent of the D.P.P.

6.4 It is unnecessary, in my view, to reach any conclusions for the purposes of this appeal as to what is to happen in the event that the D.P.P. does give consent for the summary trial of an indictable offence. For present purposes, it is sufficient to note that, as the trial judge pointed out, a prosecution for an indictable offence, even if commenced by a private individual, cannot progress at all until such time as a positive decision has been made by the D.P.P. either to take over the prosecution and allow for the matter to go forward for trial on indictment or to give consent to summary trial. In addition it should be noted that the D.P.P. must consent to a summary disposal as a result of a plea of guilty. (See s.13). I will return to the consequences of these findings in due course.

6.5 However, the cumulative legislative provisions to which I have referred therefore create a situation where the only possible role which remains for a common informer in the case of an indictable offence is to initiate the proceedings and await the decision of the D.P.P. as to whether the case will be taken over by the D.P.P. to prosecute same on indictment or to consent to summary disposal. That analysis must necessarily inform at least aspects of the issues which arise in the three areas of contention which were before this Court to which I now turn.

7. The Status of the Common Informer System
7.1 As pointed out earlier, this judgment is first concerned with whether the common informer system continues to exist in respect of indictable offences. The argument which was put forward on behalf of Ms. Kelly and Mr. Buckley is that the legislative measures to which I have referred have so curtailed the role of the common informer that it must be inferred, by necessary implication, that those measures have excluded altogether the possibility of a private criminal prosecution in respect of indictable offences.

7.2 The counter-argument is equally simply put. While acknowledging the significant impact of those legislative measures, Hogan J. concluded that it would require clear wording in relevant legislation to establish that a long existing legal entitlement to maintain a private criminal prosecution had been abolished. In addition to Mr. Halpin, counsel for the D.P.P. also argued on this appeal that the trial judge was correct in reaching that conclusion.

7.3 In substance, the issue comes down to a simple one of deciding whether it is really possible that a legislative intent to completely abolish the common informer system in respect of indictable offences can be implied into legislation which does not clearly purport to bring that system to an end. In my view, such an implication is not permissible. There may be arguments for and against the continuance of the common informer system. It might, for example, be said that the significant consequences of being subject to a criminal prosecution should not be allowed to be visited upon a person unless some public or quasi-public official, who is subject to a duty to act responsibly in the commencement of proceedings, has come to the view that it is appropriate to initiate the proceedings. On the other hand, it may be said that the requirement that the common informer satisfy a District Judge that it is appropriate to issue a summons provides an adequate safeguard.

7.4 But these questions are ultimately ones of policy and are a matter for the Oireachtas. What this Court has to decide is as to whether it is to be inferred that the Oireachtas intended to abolish the common informer system so far as indictable offences are concerned without the Oireachtas having said so in clear terms. In my view, no such implication can or should be drawn. I would, therefore, uphold the finding of the trial judge that the common informer system continues to subsist. I propose to turn next to the question of the circumstances surrounding the issuing of the summonses in this case.

8. Were the Summonses validly issued?
8.1 Under this heading, the starting point has to be to consider the elements of the offence alleged against Ms. Kelly and Mr. Buckley. As already noted, the offence is created by s.6 of the 2001 Act. In order to be guilty of such an offence a person must (a) dishonestly, (b) with the intention of making a gain for himself/herself or another … or causing loss to another, (c) by deception and (d) induce another to do or refrain from doing an act. The terms of the relevant summonses themselves allege deception “with the intention of making a gain for yourself or another, or of causing a loss to another”. It is very hard to see how there could be any basis for suggesting that either Ms. Kelly or Mr. Buckley did anything with a view to obtaining a gain for themselves or, indeed, IBRC. It follows that, if that element of the offence were to be made out, it would necessarily involve establishing that there was an intention, by deception and by inducement, to cause a loss to Mr. Halpin or, perhaps, to Mr. Murphy, his accountant. It follows in turn that it was essential that there be at least a prima facie basis for establishing an arguable case that either or both of Ms. Kelly and Mr. Buckley had engaged in a deception and inducement with an intention to cause loss to Mr. Halpin or Mr. Murphy.

8.2 What is said to be the deception is a false representation to the effect that IBRC was prepared to engage in a process designed to allow Mr. Halpin’s companies to continue to trade when, in fact, a decision to appoint a receiver had been made. Assuming for the moment that it might be argued that either or both of Ms. Kelly and Mr. Buckley deceived Mr. Halpin into thinking that a process, designed to see if the companies could viably continue, was in progress when in fact a decision to appoint a received had been made, in what way could it be said that such a deception was intended to cause a loss to Mr. Halpin? Furthermore, in what way can it be said that there was an inducement to Mr. Halpin?

8.3 As argued by counsel for Ms. Kelly and Mr. Buckley, different explanations, as to how it might be said that there was an arguable case under that heading, have been given on behalf of Mr. Halpin at different stages including in the affidavits which he swore in the High Court, in argument before the trial judge in the High Court and before this Court. On occasion it was said that the loss intended to be caused by deception and inducement was the cost to Mr. Halpin of being accompanied to the meeting with IBRC by Mr. Murphy. In the course of argument before this Court, it was suggested that the loss intended to be caused to Mr. Halpin was that he would be lulled into a false sense of security and thereby did not respond to the demand for payment. I have to say that, in my view, that latter argument was entirely fanciful. There was never any reality to Mr. Halpin being in a position to meet the demand. There might be a case where there was a credible basis for believing that a party could meet a demand for payment, where such payment was not made because of representations about a course of conduct which might sort matters out and where, as a result, enforcement actions such as the appointment of a receiver ensued when same might have been avoided by a payment. In such circumstances an offence of this type might be made out. But this is not such a case.

8.4 So far as payment to Mr. Murphy is concerned, it is not at all clear how it is said that either Mr. Halpin or Mr. Murphy was at a loss as a result of any particular deception and inducement on the part of either Ms. Kelly or Mr. Buckley with intent to cause such loss. The height of the matters sworn to in the information in this case is that an unnamed person asked Mr. Murphy to attend a meeting with Ms. Kelly and Mr. Buckley. Even if there was an element of deception in asking Mr. Murphy and Mr. Halpin to attend a meeting, there was nothing in the information to suggest that that deception was carried out by Mr. Buckley or Ms. Kelly. Furthermore, there is no specification in either the sworn information or the summonses as to what exactly is alleged to have induced any action or inaction which caused loss.

8.5 It follows, in my view, that at least one essential element of the offence for which the summonses in this case were issued was missing from the information sworn. There was nothing in that information which would have allowed the respondent District Judge to conclude that there was a prima facie case to the effect that either Ms. Kelly or Mr. Buckley was guilty of a deception and inducement intended to cause loss.

8.6 Before leaving this aspect of the case I should deal with two further points. First, counsel for Mr. Halpin drew attention to the fact that, in his affidavit sworn in the context of these proceedings, Mr. Halpin did indicate that he made submissions and answered questions at the hearing before the respondent District Judge. It was sought to imply that it may have been that Mr. Halpin expanded on his sworn information in a way which might have cured the sort of defects which I have addressed. However, there is just no evidence to suggest that Mr. Halpin did expand on those matters in the course of answering questions from the District Judge. It might be a different situation if there was evidence before the High Court to suggest that the District Judge did have additional information which she could properly consider as part of the judicial process in determining whether to decide to allow for the issuance of the summonses. The only evidence before the High Court as to the information which the District Judge had is the contents of the sworn information itself. For the reasons which I have already sought to address, I am not satisfied that that sworn information provides a legitimate basis for a conclusion being reached that it was appropriate to issue a summons in the circumstances of this case.

8.7 Finally, the trial judge did make reference to the fact that any defect in the summonses themselves might be cured by amendment. In my view, it is not necessary to consider that point. The real issue here is that there was insufficient evidence before the District Judge to permit any summons to be issued in the first place.

8.8 This case does not, therefore, raise the question of whether it could be said that the respondent District Judge made a decision which was “unreasonable” in the sense in which that term is used in administrative law. That term is appropriate for the purpose of reviewing a decision which is made by a decision-maker in circumstances where the decision-maker considers all materials required to be considered and excludes from consideration any matters not properly taken into account. In those circumstances, the Court will only overrule a judgement call made by the decision- maker where it is unreasonable or irrational in accordance with the relevant jurisprudence.

8.9 It is, however, a very different matter for the Court to be invited to consider whether a decision-maker had no evidence or materials at all on which a necessary conclusion could be reached. This Court, in Sweeney v. District Judge Fahy [2014] IESC 50, had to consider the distinction between the sort of error made by a District Judge which could result in a successful judicial review, on the one hand, and the sort of error which was reviewable, if at all, only by whatever form of appeal may be allowed. At paragraph 3.7 of my judgment in that case I said the following:-

“It is in that context that the issue arises as to the extent to which it is ever appropriate to grant judicial review quashing a decision because of an alleged absence or inadequacy of evidence. It is clear that the absence of evidence of a fact which must exist for the court or tribunal to have jurisdiction in the first place may well provide a ground for judicial review (see for example State (Holland) v. Kennedy [1977] I.R. 193). But there is a clear logic in treating such a case as being one where judicial review lies. As already noted, judicial review is concerned with the lawfulness of a decision affecting legal rights. If the decision maker did not have jurisdiction to make the decision in the first place, then clearly the decision was unlawful. If a certain set of facts are necessary in order to establish that jurisdiction exists, then the absence of any evidence of the existence of those facts demonstrates that the decision maker has not been shown to have jurisdiction at all.”

8.10 This is not, of course, a question where the issues go to jurisdiction. However, later in the same paragraph I noted that, save in an extreme case, it is not a matter for the High Court (or this Court on appeal) to inquire whether on the facts before him a District Judge was right or wrong in the course taken. But, again, the issue which this Court must consider is not as to whether the respondent District Judge was right or wrong to reach the conclusion which she did. This case concerns whether it was open to the respondent District Judge to issue a summons in circumstances where, on the basis of the evidence placed before the District Judge (as identified in the materials before the High Court), there was just no evidence or argument before the District Judge as to how it could be said that either or both of Ms. Kelly and Mr. Buckley were arguably guilty of a deception and inducement intended to cause loss to Mr. Halpin. In my view, such an absence of evidence or material places this case on the other side of the line where it can be said that the decision can be quashed in judicial review. The absence of any evidence to justify a finding that there was an argument that an essential element of the offence had been committed is fundamental. This is not, therefore, a case where the argument is about whether the evidence, even though present, was insufficiently weighty or questionable so as to justify a conclusion that a District Judge should not have regarded it as sufficient evidence. This is a case where there just was no evidence at all of an essential element of the offence.

8.11 In those circumstances, I would come to a different conclusion to that reached by the trial judge on this aspect of the case. In my view, Ms. Kelly and Mr. Buckley were entitled to have the summonses quashed on the basis that there was no evidence or material before the respondent District Judge which would have permitted a sustainable conclusion to be reached that it was arguable that each essential element of the alleged offences was present and, thus, to justify issuing a summons in these cases. My reason for coming to that conclusion is that there was no evidence from which it could be concluded that there was an arguable case that either or both of Ms. Kelly and Mr. Buckley had themselves been guilty of a deception and inducement which was intended to cause a loss. On that basis alone I would quash the summonses. However, I think it is also important to turn to the question of abuse of process.

9. Abuse of Process
9.1 I have gone into some detail earlier in this judgment in setting out the role of the D.P.P. in private criminal prosecutions because it seems to me that a consideration of that role impacts significantly on the abuse of process question. I might start by stating my agreement with the trial judge that the mere fact that a person mounting a private prosecution may have some animosity towards a potential accused is not, of itself, a reason for making a finding of abuse of process. As the trial judge rightly pointed out, many private prosecutions have mixed motives.

9.2 However, it is necessary that at least a material part of the motivation must be a bona fide desire to invoke the criminal process in the case in question. But in order to assess whether that can be so in the circumstances of an individual case it is necessary to have regard to the parameters of the criminal process in question. In the light of the legislative developments which I have sought to analyse it is impossible for a private prosecution commenced under the common informer system to progress to trial (or, indeed, to sentence on a plea of guilty) at all without a positive decision on the part of the D.P.P. At its height, all it can be said that may be achieved by the initiation, in the context of an indictable offence, of a private prosecution is that it would bring to the attention of the D.P.P. the possibility that an offence of the type alleged may have been committed. Even if relevant investigative authorities may have chosen either not to investigate or to recommend a prosecution, nonetheless, the fact that a private individual has persuaded a District Judge to issue a summons might be considered of some value in that regard.

9.3 However, if the private prosecution is to be, at least in part, motivated by a bona fide desire to invoke the criminal process then it can only be aimed at bringing matters to the attention of the D.P.P. to enable an appropriate decision to be taken. The fact that there was a deliberate and conscious attempt on the part of Mr. Halpin and his advisors to keep the D.P.P. out of the picture in this case seems to me to point heavily against there being a bona fide intention behind the initiation of the proceedings in the first place.

9.4 Next it must be recalled that Mr. Halpin’s advisors put up significant resistance to the suggestion on the part of the representatives of Ms. Kelly and Mr. Buckley that an application might be made to the respondent District Judge in advance of the return date for the summonses for the purposes of inviting the District Judge to consider whether she should set aside her order allowing for the issuing of the summonses concerned.

9.5 It was held in VPG Inc. v. Insurco International Ltd. [1995] 2 I.L.R.M. 145 that a court has an inherent jurisdiction to set aside an ex parte order in the absence of an express statutory provision to the contrary relating to the particular type of order concerned. That principle has been reaffirmed in Adams v. D.P.P. [2001] 1 IR 47, and in Adam v. Minister for Justice [2001] 3 IR 53. In many cases it may, as a matter of practicality, be the case that an ex parte order simply allows for some form of further application to be made to the Court at which the defendant or respondent will be entitled to be represented. In such circumstances it may not make a great deal of difference whether the matter is addressed on the return date or on some previous date.

9.6 An analogy with civil proceedings may be useful at this stage. Obviously, a party who is subjected to an interim injunction granted ex parte must be entitled to seek to have that interim injunction set aside even in advance of the return date on which an application for an interlocutory injunction has been listed for hearing. The reason is clear. The defendant is subjected to a binding order which has been made without that defendant being heard. In those circumstances fair procedures require that some opportunity be given to allow that party to be heard. It may, however, be that as a matter of practicality the interim injunction will expire before it is possible for the Court to consider whether it should be discharged. In such cases, as a matter of logistics, it may be that all parties, and the Court, concentrate on determining whether the interim injunction could be continued in the form of an interlocutory injunction. The fact that this may occur as a matter of practice does not, however, take away from the entitlement of the defendant to seek to have the ex parte interim order discharged and to have that matter determined, if it should prove practicable, in advance of the return date.

9.7 On the other hand, a court may simply make an order allowing for the short service of an application for an interlocutory injunction. Such an order does not affect the rights of the defendant as such, for its only consequence is that the application for an interlocutory injunction may be heard somewhat quicker than might have been the case had no order for short service been granted. It must be recalled that a plaintiff who has issued appropriate plenary proceedings will, almost always, and provided that proper notice in accordance with the rules is given, be entitled as of right to bring an application for an interlocutory injunction. The bringing of such an application does not require any leave or permission of the Court. Therefore, the only consequence of a short service order is to affect the timing at which the interlocutory application will be heard. In those circumstances, if the defendant wishes to suggest that insufficient time has been given to properly present the defence, an application for an adjournment can be made which will, if successful, have exactly the same effect, in substance, as an order setting aside short service.

9.8 But the issue of a criminal summons on the application of a common informer is different. It is not something which the common informer can do as of right. It requires a judicial determination by a District Judge. In that context, a much closer analogy may be drawn with civil cases in which the leave of the Court is required in order to commence proceedings. Judicial review proceedings, such as those with which the Court is currently concerned, are an excellent example. Such proceedings cannot be commenced without leave. If a respondent believes that leave was wrongly obtained then the respondent is entitled to be heard on that question for, if the respondent is correct, leave was wrongly obtained and the proceedings should not exist in the first place. The distinction between a short service order and an order granting leave to commence a judicial review is that the former does not, in any substantive or meaningful way, affect the rights of the defendant who could have been served with full notice of the application without any court order, whereas the latter allows proceedings involving the respondent to come into being in circumstances where the respondent can only properly be exposed to the proceedings at all as a result of an order of the Court.

9.9 In that context, it must be recalled that the issue of a summons alleging an indictable offence carries with it an obligation, on threat of significant sanction, on the accused to attend court on the day specified in the summons. That obligation goes beyond the purely procedural. A defendant must be entitled, in an appropriate case, to invite a District Judge, who, on the application of a common informer, has issued a summons requiring attendance in that way, to set aside the summons before they have been obliged to attend court on foot of the summons at all. As an absolute minimum, and in the light of the authorities which I have cited, the advisors of Ms. Kelly and Mr. Buckley were entitled to seek to persuade the District Judge that she should entertain an application to set aside the summonses and, if the District Judge was so persuaded, to attempt to make the case for the setting aside of the summonses in advance of the return date. The attempt by Mr. Halpin’s advisors to frustrate the legitimate opportunity to invite the respondent District Judge to set aside the summonses again evinces an attitude which is consistent with Mr. Halpin not having a bona fide prosecution in mind.

9.10 Indeed, both of the above instances seem consistent with a desire on the part of Mr. Halpin for Ms. Kelly and Mr. Buckley to have to attend a sitting of a criminal court as defendants in circumstances where no prosecution could ensue without a positive decision on the part of the D.P.P., but without consulting the D.P.P. in advance, and where efforts were made to prevent any prior application from being properly made to the District Judge concerned seeking to set aside the summonses in question.

9.11 In those circumstances, I am satisfied that the uncontroverted evidence to which I have referred leads only to the inference that Mr. Halpin was not motivated by a genuine desire to invoke the now very limited role of a private individual in the prosecution of criminal offences, but rather was motivated by a desire to secure, by whatever means possible, the attendance of Ms. Kelly and Mr. Buckley as accused persons before a criminal court. On that basis, I am satisfied that the commencement of these particular proceedings was an abuse of process, and on that ground also I would propose that the summonses be quashed.

10. Conclusions
10.1 For the reasons analysed in this judgment I would conclude that, in the absence of clear wording, it cannot be implied or inferred that the common informer system of private criminal prosecution has been abolished.

10.2 I am, however, satisfied that there was a fundamental flaw in the issuing of the summonses in this case because of the absence of any evidence or materials before the respondent District Judge from which it could properly have been concluded that there was an arguable or prima facie case to the effect that either or both of Ms. Kelly and Mr. Buckley had been guilty of a deception and inducement with the intention of causing loss to Mr. Halpin or, indeed, Mr. Murphy.

10.3 In addition, I am satisfied, for the reasons set out in section 9 of this judgment, that the proceedings before the District Court involved an abuse of process.

10.4 For those reasons I would allow the appeal and would propose that an order be made quashing the summonses in this case.

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	Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Kelly & anor -v- Judge Ryan & others [2015] IESC 69 (30 July 2015) URL: http://www.bailii.org/ie/cases/IESC/2015/S69.html Cite as: [2015] IESC 69

Supreme Court of Ireland Decisions