The Gazette 1964/67

take over the case. Consequently the appeal was allowed, and the order of the High Court grant ing an absolute order of prohibition was re versed. (The State (Patrick Dudley Ennis) v District Justice Farrell (Jeremiah Crean, Applicant). Un- reported. Solicitor's negligence—Failure to have witnesses available at trial The plaintiff was charged with robbery with aggravation and was at his trial represented by the defendant solicitors by virtue of a defence certi ficate. Before the trial he had told them that at about 9.20 a.m. on 15th March 1960, the day of the robbery, he had been at Penge and had there asked a bus conductor and a chimney sweep the way to Hither Green. The robbery took place at 9.30 a.m. some six miles distant at Mottingharn and it was agreed that if he had been at Penge he could not have taken part in it. Neither the con ductor nor the sweep gave evidence at his trial and on 12th May 1960 he was convicted. An appeal to the Gourt of Griminal Appeal was dis missed and was further referred to the Court of Criminal Appeal by the Home Secretary. Subse quently the plaintiff brought an action for dama ges against the solicitor alleging that he had in formed the solicitor's managing clerk of his con versation with the conductor and the sweep and had requested him to trace and call them at the trial and that in breach of duty the solicitors were guilty of negligence as a result of which the con ductor and sweep were not present and did not give evidence at his trial and that he was con victed and sentenced to nine years' imprisonment. Melford Stevenson, J., said that after reading the evidence at the trial and the evidence and findings of the Gourt of Griminal Appeal, he too, had come to the same conclusion as the Court of Criminal Appeal that, even if the conductor and the sweep had given evidence at the trial, the jury would have come to the same verdict. Although the plaintiff had failed to prove that it was prob able that he would have been acquitted, there was still the question whether the solicitors were in breach of duty. The solicitors had taken reason able and successful steps to trace the sweep and had come to the decision that his evidence was valueless. Events had proved that that decision was right. The conductor was easy to trace and the arrival and departure times from Penge were a matter of record. The plaintiff's conversation with the conductor was a matter of vital impor tance to his case. Because the managing clerk had come to the decision that it would be a waste of 36

Attorney General, the rights of a common in former were preserved, and that he could take depositions in the case, but that he (Justice) had no power to proceed further, or return the de fendant for trial, if the Attorney General did not take over the proceedings. After lengthy and protracted legal submissions, in January 1965, the Justice adjourned the case to 24th February, 1965 for the taking of depositions. 3. On 22nd January, 1965 the defendant ob tained from Mr. Justice McLoughlin a conditional order of prohibition directed to the District Justice upon the ground that, by reason of the previously cited provision of the Griminal Justice (Adminis tration) Act 1924, the District Justice had no jurisdiction to take depositions or hear or enter tain any further proceedings in the case. 4. On 21st July, 1965 Mr. Justice McLoughlin disallowed the cause shown by the complainant and made absolute the conditional order of pro hibition. 5. The complainant appealed to the Supreme Court on the single issue whether the effect of Article 30, Section 3, of the Gonstitution, which states that "All crimes and offences prosecuted in any Gourt constituted under Article 34 of this Gonstitution other than a Gourt 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 for that purpose"—has been to bar the right of an individual, whether citizen or not, to initiate by information or summons a prosecu tion in respect of an indictable misdemeanour which the accused objects to being dealt with summarily and in respect of which he is un willing to plead guilty—and further bars his right to maintain such prosecution by way of prelimin ary investigation of the offences charged up to the point where the District Justice either refuses in formations or returns the accused for trial. 6. On the 6th May, 1966, the Supreme Court (O Dalaigh, C.J., Lavery, Haugh, Walsh and O'Kccfee JJ.) unanimously, per O Dalaigh, C.J., held that the valuable right of private prosecu tion still subsists under Article 3D, Section 3, of the Gonstitution, and the plain meaning of that section left the existence of private rights un disturbed. However, a prosecution on indictment must be conducted by the Attorney General in accordance with Section 9 (1) of the Griminal Justice (Administration) Act 1924. Consequently a private prosecutor may only conduct a prosecu tion to the point where the District Justice re ceives informations, and returns the accused for trial. From that point, the Attorney General must