The Gazette 1987

GAZETTE

APRIL 1987

CORRESPONDENCE

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

| 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

High Court decision was delivered i

" in the same terms as the affirm-

ing judgment of the Chief Justice",

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

and on that issue the Department

did, as the Minister explained

publicly, "anticipate" the decision

of the Supreme Court and made

! new arrangements accordingly for i

the issue of summonses.

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

by the Minister in the Dáil and

| Seanad. He also explained why the

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-

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.

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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