The Gazette 1989

GAZETTE

APRIL 1989

and a signature, description

and swearing clause by the

authority before whom it is

sworn, which authority

should state that it knows the

deponent,

(j) The certificate should refer to

the offence in the warrant and

specify that it is an indictable

offence only and if it is also a

summary offence specify the

maximum period of imprison-

ment. If the offence is being

prosecuted summarily it

should give the further

particulars required in section

51 and section 54(3) of the

Act.

(k) The certificate should state

that it is given by the

authority or the clerk or other

officer of the authority by

which the warrant was

issued.

(I) It is also wise for the dates,

names, offences and persons

named on the documents and

signing the documents to

correlate with each other.

The fundamental point is that the

State must show documents which

appear to comply with the Act and

the defence have the burden of

showing "good reason to the

contrary".

That is that the

documents do not have the

appearance of those the Act

demands or that, by proving UK

law, that they have been invalidly

issued. While the points above have

been taken from the Act and

checked against samples of the

appropriate documents they may

not be exhaustive.

Correspondence

The offence specified in the

warrant must correspond with an

offence under the law of Ireland

which is an indictable offence or is

punishable on summary conviction

for a maximum period of at least six

months,

and the District Justice

should specify on the fact of his

order what he considers to be the

corresponding offences.

He may

accept that only some of the

offences on the warrant are

corresponding and his rejection of

others does not destroy the validity

of the entire warrant.

The names

of offences are unimportant as the

same offence may be similarly

named in each jurisdiction but have

a different meaning. This

necessitates the warrant or an

affidavit from the prosecuting

authority accompanying it to give

"sufficient particulars of a factual

nature setting out the ingredients

of the offence . . . somewhat as the

particulars of offences appear in a

Court in an indictment under our

law".

What is required therefore

is the nature of the charge

and

words in a warrant will be given

their ordinary or popular meaning,

unless the context suggests a

special significance.

In 1971 the

Supreme Court seemed to say that

correspondence exists where the

elements of an offence are

precisely the same in Irish law as

they are in UK Law.

The ratio of

Ó Dálaigh C. J.'s judgment in

Furlong's case being that if an

offence under Irish law had an

additional element to the offence

under English law, or if the

elements were the same in number

V I EWPOINT

Contd.

from pmgm

ITS

Judges, can only work within and

provide a level of service commen-

surate with the facilities available to

them. These facilities come under

the control of the other arms of

Government and are receiving only

the most meagre of attention and

little or no resources.

Wrth the facts now clearly available

to them on a countrywide basis, it

is the immediate and urgent duty of

central government to respond with

but not in character there should be

no correspondence. The idea, it

seems, was that no-one should be

convicted in the UK on easier or

lesser proofs than in Ireland. In

1974, the Supreme Court confined

their analysis to the facts alleged

against the accused in the

particulars of offence and, because

of the absence of expert evidence

to the contrary, decided that if the

accused had done in Ireland what

he was alleged to have done in the

United Kingdom he would have

offended against our criminal law.

Again, in 1979, in the absence of

expert evidence, the Court decided

that the word "rob", as an ordinary

English word, must correspond

with the offence of "robbery" in

Irish law.

Finally, in a unanimous

judgement in 1981 the Court held

the relaxation of the

mens rea

requirement in English law for the

offence of receiving stolen goods,

from "knowing" to "believing",

where "knowing" was the

mens

rea

requirement for the offence

under Irish law, did not destroy the

correspondence between the two

offences; English law was said to

have "an additional alternative

ingredient"!

The point is that

English law does not correspond.

Obviously the receipt of a video

recorder there, in the belief that it

was stolen, would not secure a

conviction for the same offence in

a positive and adequately resourced

programme to repair, renovate and

rebuild. The state of our Courthouses

shows neglect over a long number of

years and is not the result of neglect

by one party or by any particular

political grouping. It is a national

disgrace which shows scant regard

for the fundamental institutions to

our State and a total disregard for

the welfare of those who must

have recourse to it.

•

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