High Court: Terms of recognisance in breach of Criminal Procedure Act did not deprive District Court of jurisdiction

About this case:

• Citation:
  [2020] IEHC 2
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Finding that the making of a complaint was sufficient to give jurisdiction, Mr Justice Garrett Simons said that the appropriate response to the accused’s non-attendance was to issue a bench warrant for her arrest, and that the District Court acted “entirely properly” in doing so.

Background

On 25 October 2018, Nicole Daly was arrested in Dublin and transferred to Castlerea Garda Station where she was detained under section 4 of the Criminal Justice Act 1984. She was subsequently released and rearrested for the purpose of charging her with theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

Ms Daly was released subject to entering into a recognisance which stated that she would appear before Strokestown District Court on 28 November 2018.

Ms Daly’s solicitor advised her of his opinion that the District Court did not have jurisdiction to deal with her case in circumstances where the 30-day period set out in Section 31 of the Criminal Procedure Act 1967 (as amended) and the equivalent rule under the District Court Rules had been exceeded. He averred that, on the basis of this advice, Ms Daly “opted” not to appear before the District Court.

Application for judicial review

In the High Court, the principal issue for determination was whether the failure to remand someone released on station bail to a sitting of the District Court within 30 days deprives the District Court of jurisdiction.

Mr Justice Simons said it was well established that attendance before the District Court confers substantive jurisdiction on that Court notwithstanding that the accused person has been brought before it by an illegal process – i.e. the presence of the accused person remedies or cures any defect in the procedure (see, for example, State (Attorney General) v Judge Fawsitt [1955] IR 39; Killeen v Director of Public Prosecutions [1997] 3 IR 218; Director of Public Prosecutions (Ivers) v Murphy [1999] 1 IR 98; and Whelton v District Judge O’Leary [2010] IESC 63).

In State (Lynch) v Ballagh [1986] IR 203, which was decided with reference to the original version of section 31 of the Criminal Procedure Act 1967, the Supreme Court was persuaded that the 30-day period purportedly provided for under the District Court (Criminal Procedure Act, 1967) Rules 1985, was ultra vires. However, the Supreme Court declined to quash the remand order in circumstances where the accused had attended before the District Court.

In Ms Daly’s case, the “supposedly novel feature” was that the accused person did not attend before the District Court. Had she done so, established case law dictates that her attendance would have remedied or cured any defect in the remand period. It was argued that her non-attendance distinguished her case from the established case law.

Counsel for Ms Daly drew attention to the dicta of Mr Justice Brian Walsh in State (Lynch) v Ballagh, in which he stated that if the applicant in that case “had not turned up… then perhaps an interesting legal situation might have arisen”. In this respect, Counsel for Ms Daly argued that this implied that the “cure all” properties of an appearance were not applicable where the accused did not appear.

Mr Justice Simons said that this comment was obiter dicta in circumstances where the accused in State (Lynch) v Ballagh did attend before the District Court. Mr Justice Simons said that the relevant passages from this case were those which explained that the making of a complaint was sufficient to give jurisdiction to the District Court in a summary offence.

In Ms Daly’s case, a complaint was lawfully made to the District Court. Mr Justice Simons said that neither (i) the fact that the remand period exceeded 30 days, nor (ii) Ms Daly’s decision to not attend, deprived the District Court of substantive jurisdiction. Bad recognisance does not prevent the Court from receiving the complaint (Maguire v Shelley [1992] 1 IR 482 considered).

Mr Justice Simons said that the appropriate response to Ms Daly’s non-attendance was for the District Court to issue a bench warrant for her arrest, and that the District Court acted “entirely properly” in doing so.

Other procedural requirements

Counsel for Ms Daly asked the Court to consider case law in respect of other statutory provisions prescribing a procedure for bringing a person before a Court. Particular emphasis was placed on Director of Public Prosecutions v Carter [2015] IESC 20 – a case concerning the reactivation of suspended sentences.

Stating that the reliance on Carter was misplaced, Mr Justice Simons concluded that there was nothing in that judgment to suggest that the line of authority from State (Attorney General) v Judge Fawsitt had been incorrectly decided. Mr Justice Simons also rejected arguments based on case law from the Special Criminal Court, due to the fact that the powers and procedures of that Court must be interpreted strictly in light of the “special and exceptional” jurisdiction of the Special Criminal Court.   

The consequence of non-compliance

In response to the question of whether a possible consequence of a breach of Section 31 would be that the recognisance would be unenforceable, Mr Justice Simons said that the District Court “might not be entitled to direct that the accused be arrested for failure to comply with the recognisance”, it could issue a bench warrant in accordance with the principles in O’Brien v Judge Coughlan [2016] IESC 4. He added that it “might also follow that the fact that the recognisance is bad on its face would preclude same being relied upon for the purposes of estreating the bail monies”.