The Gazette 1986

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. No. 80 No. 10

December 1986

In this issue . . .

Comment . ..

. . . Summa ry Justice T he Courts (No. 3) Act, 1986 ("the 1986 Act") was passed as a matter of urgency just before the Oireachtas Christmas recess and was signed into law by the President on 19 December, 1986. The urgency was brought about by the Supreme Court judgment (per Finlay C.J., nem. diss.) in the case of The State (at the prosecution of Garda John Clarke) -v- District Justice Maura Roche and Peter Senézio, delivered on 12 December, 1986. The Chief Justice, in a unanimous judgment of a full Supreme Court, held that because of the provisions of sections 10 and 11 of the Petty Sessions (Ireland) Act, 1851 ("the 1851 Act") a complaint of a criminal offence made to the appropriate District Court Clerk, in order to be valid, had to come to the actual attention of such District Court Clerk within the appropriate time (almost always six months) from the date when the cause of complaint arose, before a summons, on foot of such complaint, could be validly issued; and that on the terms of section 10 of the 1851 Act, it was "an inescapable conclusion" that the issue of a summons upon the making of a complaint was a judicial as distinct from an administrative act and, therefore, had to be exercised personally by such holder of the office of District Court Clerk and could not be delegated to other District Court staff. The consequence of that decision was that a large number of pending summonses issued by means of a computer were likely to be struck out by the District Court as being invalid, on the ground that it could not be established that any given complaint directed to the computer section came to the attention of the District Court Clerk to whom it was addressed. The Department of Justice should reasonably have anticipated the decision of the Supreme Court, at least since the very carefully reasoned High Court judgment of Barron J. in the same case delivered on 20 March, 1986, in the same terms as the affirming judgment of the Chief Justice. The Department should, in fact, have reasonably anticipated the ultimate outcome a lot earlier at the time when the issuing of summonses, in particular in Road Traffic Act cases in Dublin, became a computer activity. The time between the High Court judgment in March 1986 and the Supreme Court judgment in December 1986 should have been used to draft legisla- tion to repeal sections 10 and 11 of the 1851 Act and to substitute purely administrative procedures for the making and receiving of complaints by the appropriate District Court Office and the issuing of District Court summonses. (continued on p.291)

Comment

279,291

The Conclusiveness of Certificates

of Registration of Company Charges

281

Practice Notes

292

Book launches

294

Proceedings at Annual General Meeting

295

Presentation of Parchments

298

The Duties of an Agent to a Principal

299

Correspondence

303

Medico Legal Society

304

Professional Information

305

Executive Editor: Editorial Board:

Mary Buckley Charles Meredith, Chairman John F. Buckley Gary Byrne Daire Murphy Michael V. O'Mahony Maxwell Sweeney

Advertising: Printing:

Liam O hOisin, Telephone 305236 Turner's Printing Co. Ltd., Longford

The views expressed in this publication, save where other- wise indicated, are the views of the contributors and not necessarily the views of the Council of the Society. The appearance of an advertisement in this publication does not necessarily indicate approval by the Society for the product or service advertised. Published at Blackhall Place, Dublin 7.

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