The Gazette 1984

GAZETTE

JULY/AUGUST

1984

In the course of argument in the High Court Counsel for the Defendant and the Director of Public Prosecutions agreed that an affirmative or negative reply to question No. 3 would meet the require- ments of the case stated. In The Commissioner of Police of the Metropolis -v- Curran [1976] 1 All E.R. 162; the House of Lords was requested to consider a point of law arising out of a similar Section of the English Road Traffic Act, 1972, and held that a person could be convicted of an offence under Section 9(3) of that 1972 Act without the fact being established that he had been driving or attempting to drive or being in charge of a mechanically propelled vehicle on a road or other public place. The Court HELD as follows:— 1. Because of the very close resemblance between the objectives and modes of expression in relation to the same subject matter in the English Road Traffic Act, 1972, and the Irish Act, as amended in 1978, the Oireachtas intended no more and no less than what the words of the Sections enacted to say whether or not they may merit condem- nation of the nature cast upon the English Act of 1972 in. the House of Lords in Curran's case. 2. Section 13 of the 1978 Act applies only to a person who has been brought to a Garda Station having been arrested without warrant by a member of the Garda Siochana who was of the opinion that such person was committing or had committed an offence created by Section 49 of the Road Traffic Act, 1961, as amended by Section 10 of the 1978 Act. Section 49 creates three offences one of which does not involve any time factor as an element of proof to sustain a conviction. Section 13 does not require the arresting member of the Garda Siochana to identify which of the three offences created by Section 9 he was of opinion was being or had been committed. The Section provides the Garda with an opportunity of obtaining from the person arrested evidence which might or might not support his suspicions of the commission of one or other of the Section 49 offences. The Garda may exercise his discretion as to what form of test or tests the arrested person should be subjected to and the onus is cast by Section 13 on such person to comply with the optional requirement. Refusal or failure upon being given the option constitutes the commission by the arrested person of an offence under Section 13. There is nothing in the wording of Section 13 as expressed, nor in the apparent purpose of Section 13, which requires proof of the time of driving or of attempting to drive a mechanically propelled vehicle. Accordingly, the answer to the third question submitted by the District Justice was no. As this question and answer appeared to embrace all that was compre-

hended in questions 1 and 2 it was not necessary to answer those two questions. The Director of Public Prosecutions -v- Patrick Clinton - High Court (per Gannon J.). 13 June, 1983 - [1984] ILRM 127. Daniel F. Murphy PROCEDURE Validity of Summons signed by Assistant District Court Clerk — whether District Court Clerk was "assigned" to area — Courts Officers Act, 1926, Ss. 46(1) and (2) and 48(1) — District Court Rules 1948, Rule 91(2). The Respondent came before the District Court in Naas on 13 January, 1982, pursuant to a complaint made against him under Section-49(3)and (4)of the Road Traffic Act, 1961, as inserted by Section 10 Road Traffic (Amendment) Act, 1978, and in respect of a further complaint under Section 53( 1) and (2)(b) R.T.A., 1961. The Summonses were issued by John A. Healy, a person who had been appointed by the Minister for Justice as a District Court Clerk and who was attached to the Naas District Court Office to assist the District Court Clerk assigned to the area, Mr. Delahunty. At the conclusion of the evidence it was contended on behalf of the Respondent that the complaints should be dismissed on the grounds that Mr. Healy had no authority to issue the Summonses. The District Justice adjourned the matter and gave the Defence liberty to call evidence in support of their contention. At the adjourned hearing Mr. Padraig O Murchu, who holds the position of Chief Examiner of the District Court Section, Department of Justice, was called on behalf of the Respondent and gave evidence to the effect that only one person was assigned as a District Court Clerk to the Naas District and that was Mr. Delahunty. Mr. Healy was, along with other officers, appointed by the Minister for Justice as a District Court Clerk and was attached with these others to assist Mr. Delahunty. On 4 August, 1981, the date the Summonses were issued, Mr. Delahunty was on holiday and no formal assignment of Mr. Healy as a District Court Clerk to the Naas area had been made by or on behalf of the Minister for Justice. It was further stated by Mr. O Murchu that the Department does not regard as "assigned" under Section 48(1) of the Courts Officers Act, 1926, District Court Clerks attached to an office other than one District Court Clerk who is in charge of it and who is assigned to it. It was Departmental practice where the one "assigned Clerk" is absent to have the most senior of the other Clerks formally assigned by or on behalf of the Minister. The learned District Justice thereupon accepted the submission of the Defendant/Respondent and struck out the summonses for want of jurisdiction.

On the written application of the D.P.P. the District Justice stated a case for determination by the High Court. The law applicable, which is contained in the Courts Officers Act. 1926, Ss. 46(1) and (2) and 48(1) and in the District Court Rules, 1948, Rule 91(2), was reviewed by the Court in dealing with the Appeal. Section 46(1) of the Courts Officers Act, 1926, provides that there shall be attached to the District Court such and so many District Court Clerks as the Minister (For Justice) shall, with the sanction of the Minister for Finance, from time to time direct. Section 46(2) of the same Act provides that every District Court Clerk shall be appointed by the Minister and shall (unless he is a pensionable officer) hold office at the will of and may be removed by the Minister. Section 48(1) of the same Act provides that every District Court Clerk shall be assigned to such one or more District Court Areas as the Minister shall from time to time direct and shall have and exercise all such powers and authorities and perform and fulfil all such duties and functions in relation to the District Court in such District Court area or areas as shall from time to time be conferred or imposed on him by statute or rule of the Court. Rule 91(2) of the District Court Rules, 1948, provides that where more than one Clerk is assigned to a Court Area then the Principal Clerk in such Court area or, in the Metropolitan District, the Chief Clerk, may make such division of duties among the Clerks assigned to such Court area or to the said District respectively as he thinks proper. The Appellant contended as follows:— 1. It was a matter for the District Justice to make a finding as to whether, on Mr. O Murchu's evidence, Mr. Healy was a District Court Clerk assigned to the District Court Area of Naas. This was not s ome t h i ng which could be determined by the expressed opinion of Mr. O Murchu. 2. Section 48(1) of the 1926 Act placed a mandatory obligation on the Minister for Justice to assign each person appointed by him as a District Court Clerk to at least one District Court area. There is no concept known to the law of mere "attachment" of a District Court Clerk to an area. 3. The only legal interpretation, there- fore, of the position of Mr. Healy was that he, being admittedly a duly appointed District Court Clerk, had been assigned by the Minister to the District Court Area of Naas. The Respondent contended:— 1, The provisions.of Section 48( 1) were not mandatory and the Minister had no obligation to assign each District Court Clerk to a specific area. A District Cou rt Clerk, duly

XVIII