The Gazette 1987

GAZETTE

APRIL 1987

CORRESPONDENCE

| Act had to be personally con- j sidered by the District Court Clerk —which was the question decided by the High Court — and, second, whether a summons under the 1851 Act could be issued by a District Court Clerk (or Peace Com- missioner) — which was not at issue in the High Court. The article states that the Department of Justice should have anticipated the judgment of the Supreme Court since the previous j High Court decision was delivered i " in the same terms as the affirm- ing judgment of the Chief Justice", j As indicated, the High Court judg- ment dealt only with the question whether a complaint had to be con- sidered by the District Court Clerk j and on that issue the Department did, as the Minister explained publicly, "anticipate" the decision of the Supreme Court and made j ! new arrangements accordingly for i the issue of summonses. I The High Court j udgmen t, however, had nothing whatsoever to say on the second question — whether the issue of a summons under the 1851 Act was a judicial function — and the obiter remarks i in the Supreme Court judgment in | this regard were not related to anything in the High Court judg- ment. It is this question alone — which of course has nothing to do with computers — that was dealt with in the Courts (No. 3) Act, 1986. This was clearly explained j by the Minister in the Dáil and | Seanad. He also explained why the j relevant provisions of the 1851 Act [ were not being repealed. There is i ! an obvious need to keep these pro- | visions alive for the kind of sum- j mons which should be issued only I after consideration by the Court and there is no reason why that

should give rise to any uncertainty in the issue of summonses, as sug- gested by your article. I enclose a copy of the Min- ister's statement in the Seanad on the recent Act which may be of assistance to your contributor in understanding the issues in- volved. Finally may I draw attention in particular to the Minister's state- ment that the Act was a limited measure to deal in the short term with one specific issue; further legislation is in course of prepara- tion which involves an examination of the wider aspects. Yours faithfully, R. G. Walshe, Private Secretary. Office of The Minister for Justice, Dublin 2.

Editor, The Gazette, Law Society, Dublin 7. 24th February, 1987.

Dear Sir, I have been asked by the Minister of Justice, Mr. Alan M. Dukes, T.D., to refer to the article ( "Comment . . Summary Justice") in your December 1986 issue which has been brought to his attention. It is clear from the terms of that article that the writer of it has fail- ed to understand the effect and im- plications of the Supreme Court judgment in the recent case of the State (Clarke) v Roche and Senezio. While that judgment did hold, as the article states, that "on the terms of section 10 of the 1851 Act, it is an inescapable con- clusion that the issue of a sum- mons upon the making of a complaint was a judicial as distinct from an administratice act", it did not go on to hold, as claimed in the article, that such act "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 s t a f f ". On the contrary, the clear implication in the judgment is that the issue of a summons under the 1851 Act, being a judicial act, could not be performed by a District Clerk at all. In the result, your article con- fuses the two questions dealt with in the Supreme Court judgment, first, whether a complaint to ground a summons under the 1851

Editorial No te If the Comment on this topic (Gazette, December, 1986), in the view of the Minister for Justice "failed to understand the effect and implications of the Supreme Court judgment, it emphasises the importance of the very early in- troduction of new criminal pro- cedure legislation, which would clearly provide for an ad- ministrative procedure for bringing accused persons before the District Court, whether by was of sum- mons or after arrest. The Comment

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