The Gazette 1986

GAZETTE

SEPTEMBER 1986

On 16 May 1984, in the District Court, the Dublin Well Woman Centre Ltd. appeared charged that on 6 September 1983, at Lower Leeson Street, it supplied contraceptives otherwise than by way of sale under and in accordance with Section 4 of the Health (Family Planning) Act. 1979, contrary to Section 4(4) of the Act. The ' Complainant, Inspector P.O. Courtney, in cross-examination, stated that he was acting as a member of the Garda Siochana in prosecuting the charge and was not acting.in his private capacity as a member of the public. Counsel for the defendant company requested the District Justice to state a case on the following points: (a) whether a prosecution for the offence alleged in the complaint is maintain- able by a common informer; and (b) whether in view of the evidence of Inspector Courtney and having regard, inter alia, to the specific provisions combined in Section 96 (1) and (2) of the Health Act, 1974 and Section 44 of the Health Act, 1953 he may be regarded as having acted as such informer in the institution and prosecution of the proceedings. Section 44 of the Act of 1953 states: " An offence under Part V, Part VIII or Part IX of the Principal Act may be prosecuted by the health authority in whose functional area the offence is committed". At no stage was it suggested that the offence charged related to an offence under those parts of the Act of 1947. The answers to the questions submitted in the case stated depended upon the construction of the provisions of Section 96 of the Act of 1947. Section 96 reads: (1) The Minister may, with the consent of the Minister for Justice, by order provide for the enforcement by the Garda Siochana of any specified provision of this Act or the regulations or orders made thereunder in the whole or a specified part of the State and either generally or in so far as such provision relates to a specified matter. (2) An order under this section may, in particular, provide for all or any pf the following matters:— (a) the prosecution of offences by members of the Garda Siochana in lieu of a health authority; (b) the conferring on members of the Garda Siochana of any of the powers specified in Section 93 or Section 94 of this Act; (c) the making of payments to the Minister for Justice by a health authority in respect of the enforcement of their functional area of the provisions to which the order relates; (d) the regulation of the amounts of any such payments, or the times at which they are to become due and of the manner in which they are to be made. (3) A member of the Garda Siochana, for the purpose of enforcing in the functional area of a health authority a provision to which an order under this section relates, may require the authority to assist him by making available the services

CERTIORARI No insurance - Convicted and imprisoned - term of temporary release - breach of term - re-committed - illegality of re-activation of sentence - fairness of procedures. On 9 April, 1983, the Prosecutor was convicted in the District Court of driving without insurance and was sentenced to six months imprisonment. The order was affirmed by the Circuit Court on 21 February, 1984. With the benefit of remission he would in the ordinary course of events be due for release on 5 July, 1984. However, on 28 March, 1984 he was released on full temporary release, a stated condition of his release being that he should report to a Probation Officer as requested. The Respondent received a letter dated 17 April, 1984 from his Probation Officer stating that he had been in breach of his temporary release in failing to contact her and that he had not been available when she visited his home on three dates in April 1984. On 30 April, 1984, the Respondent wrote to the Superintendent, Garda Station, Clondalkin, requesting that he have the Prosecutor arrested and returned to custody. There was no apparent response to this request and almost seven months later the Prosecutor received a form from Chief Officer Davis dated 21 November, 1984 referring to the Prosecutor having been re-committed for breaking the terms of his temporary release. The re- committal occurred on the same date. On 23 November, 1984, the Prosecutor was brought to the office of the Respondent and the letter from the Probation Officer, dated 17 April, 1984, was read out to him. The explanation given by the Prosecutor was not accepted by the Respondent. The Prosecutor challenged the legality of the purported re-activation of his sentence for the period in which it was alleged that he was unlawfully at large — from 17 April, 1984, to 5 July, 1984. He first obtained a conditional order of Certiorari declaring his rearrest illegal. In making absolute the conditional order of certiorari the Court HELD: 1. The purported re-activation of the sentence after such a long period and with no explanation for the delay was unfair. Fairness of procedure was emphasised in the judgments of the Supreme Court in The State (Murphy) -v- Governor of St. Patrick's Institu- tion [1985] ILRM 141. 2. The finding was confined to the particular facts of the present case. Every other case must be judged on its own facts. The Attorney General — High Court (per Egan J.), 5 December 1985 — unreported. Damien McHugh CRIMINAL District Court prosecution by Garda - Prosecution not taken in private capacity as member of public - Case stated - Whether right of common informer to lay complaint withdrawn or restricted by Statute. Michael Cunningham -v- The Governor of Mountjoy Prison. Notice Party,

of a medical or other officer, by furnishing an ambulance or in any other manner within the powers of the authority, and the authority shall comply with such require- ment. (4) A member of the Garda Siochana shall not, by virtue of an order under this section, exercise a power spccificd in Section 93 or Section 94 of this Act unless— (a) he is in uniform, or (b) he produces for inspection by the person in relation to whom he exercises the power or in occupation or in charge of the premises in relation to which he exercises the power, if such person requests him so to do, his official identification c a r d ". HELD: — The proper meaning to be given to the phrase "in lieu of the health authority" as used in sub-section 2(a) was that it provided only for the circumstances in which a health authority was empowered to prosecute offences for the purpose of enforcing the provisions of the Acts, regulations and orders within its area of jurisdiction. The conferring by Statute of the power to prosecute offences under these Health Acts on the Minister or a health authority seemed to be in ease of and not in substitu- tion for the Garda Siochana. That a member of the Garda Siochana prosecuting a charge in the District Court in his own name does so as a common informer had been established beyond doubt by a number of authorities. The prosecution of offences in contra- vention of Section 4 of the Act of 1947 was not a necessary prerequisite for a prosecu- tion of such an offence by a member of the Garda Siochana. The right of a common informer to lay a complaint and prosecute in a court of summary jurisdiction for an offence contrary to Section 4 or any otljer section of the Act of 1979 was not withdrawn nor restricted by Statute. The answers to Doth questions in the case stated was, therefore, 'Yes*. Inspector P.G. Courtney -v- Dublin Well Woman Centre Ltd. — High Court (per Gannon J.), 15 November 1985 — unreported. Damien McHugh MALICIOUS INJURY Fire in factory during working hours caused by 15 year old male employee. Box- room where cardboard boxes made up and adhesive labels for the boxes contained on rolls of backing paper hung from the ceiling, strips of backing paper which was highly flammable scattered on floor. Employee lit a cigarette and match, ignited backing paper. On 18 August, 1981, a fire occurred at the Applicants' factory in Co. Waterford, as a result of which a large quantity of meat and sundry other items were destroyed. An application for compensation for criminal injury to property was made to Waterford County Council under the Malicious Damage code that was in force prior to the

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