The Gazette 1986

GAZETTE

N O V E M B E R

1986

Comment (continued from p.279) The 1986 Act does provide (section 1) that the issuing of a summons pursuant to the 1986 Act "by the appro- priate office of the District Court" is to be "a matter of administrative procedure". However, the 1986 Act does not repeal sections 10 and 11 of the 1851 Act but, on the contrary, provides that a summons duly issued under the 1986 Act should "be deemed for all purposes to be a summons duly issued pursuant to the law in force immediately before the passing of (the 1986) Act". The 1986 Act further provides that the procedures set out in the 1986 Act "in relation to applications for, and the issue of, summonses are without prejudice to any other procedures in force immediately before the passing of (the 1986) Act whereby proceedings in respect of an offence can be commenced and, accordingly, any of those other procedures may be adopted, where appro- priate, as if (the 1986) Act had not been passed". As a transitional measure, the 1986 Act provides that where a complaint in relation to an offence was duly made and received by a District Court Clerk or a Peace Commissioner on or after 20 March, 1986 (the date of the High Court judgment) and before the passing of the 1986 Act (19 December, 1986) "and during the period in which the complaint was required by law to be made", that it would be lawful for the complainant to apply, not later than 20 March, 1987, "for the issue of a summons in relation to the offence and for the appro- priate office of the District Court to issue the summons". Regrettably, in the absence of a repeal of sections 10 and 11 of the 1851 Act, the 1986 Act has not met the important 4 obiter dicta ' of the Chief Justice querying "the consequences from the point of view of constitu- tional validity of a conclusion that the powers given to the Peace Commissioner (per the Courts of Justice Act, 1924) and District Court Clerk (per the Court Officers' Acts, 1926/51) to receive a complaint and issue a summons constituted the carrying out of a judicial act in a criminal matter". The Chief Justice further observed in his judgment, as a clear guideline to the legislature, that "there (was) much to be said for the point of view that with regard to summary summonses issued in criminal cases, by members of the Garda Siochana at least, it (was) no longer necessary or appropriate for a Justice of the District Court or for any other person to reach a judicial determination as to whether the summons should be issued . . . (and that) . . . consideration . . . should be given to replacing sections 10 and 11 of the Act of 1851 with statutory provisions more suitable to the modern

District Court and which could include the proce- dure for the issuing of summonses, in criminal cases at least, as being an administrative procedure only, and which could then, without any question of constitutional challenge, provide that the complaint should be made to the District Court and that the summons should be issued by the officers of that Court upon the making of the complaint". What the 1986 Act has done, by not repealing sections 10 and 11 of the 1851 Act, is to give rise to two different procedures, namely, an expressly stated 'administrative' procedure for the issuing of summonses (after receipt of a complaint) "under the general superintendence of an appropriate District Court Clerk", pursuant to the 1986 Act, and (according to the Supreme Court) a 'judicial' procedure (under sections 10 and 11 of the 1851 Act, as adapted, applied, extended and amended!), whereby a District Justice, a Peace Commissioner or a District Court Clerk personally receives and considers a complaint and then issues a summons. This in turn gives rise to the query whether calling the procedure 'administrative' (as the 1986 Act does) makes it 'administrative' in law and therefore delegatable by a holder of the office of District Court Clerk to his staff, when at the same time the still extant 1851 Act procedure has been held to be 'judicial' and non- delegatable. Lawyers are sometimes required to raise technical points in the interests of their clients. It is, however, fundamentally desirable that there should be no doubt about the authority of the District Court and its officers to receive complaints and to issue summonses in criminal cases. A totally unnecessary uncertainty as to whether such procedures are 'judicial' or 'administrative', as a result of the continued existence of sections 10 and 11 of the 1851 Act, should be removed by further legislation. It is logical and sensible that the receiving of a complaint and the issuing of a summons requiring a person to appear before the District Court to meet that complaint, should be a purely administrative procedure designed to initiate the judicial process of the District Court. It is time for the Department of Justice and our legislators to recognise, towards the end of the 20th century, that procedures, originating in the middle of the 19th century in very different circumstances, are no longer adequate or capable of being adapted and applied piecemeal. It is important that a respect for the Courts and their processes should be maintained. If summonses in criminal cases are struck out in District Courts all over the country because of avoidable technical uncertain- ties, that respect will be at risk. •

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