456 / 462
GAZETTE
JULY/AUGUST 1993
types of publ ic broadcast of Irish recordings.
A number of parties, including Radio Telefis
Eireann (RTE) and various disco operators,
respondents in the instant proceedings, were
i n d ispute with PPI as to the rate of 'equ itable
remuneration' properly payable under s.17
of the 1963 Act and they referred the dispute
to the Controller of Industrial and Commer-
cial Property pursuant to s.31 of the 1963
Act. The Controller had decided that he had
jurisdiction to hear the references under
s.31 of the 1963 Act, and PPI then sought
judicial review of this decision. PPI argued
that only a reference under s.32 of the 1963
Act couId be made, since s.31 was Iimited to
disputes concerning 'published' material,
whereas RTE and the disco operators also
sought to dispute the rate of equitable remu-
neration on future recordings. Where a dis-
pute is referred to the Controller under s.31,
persons broadcasting or otherwise using the
copyright material will not be deemed to
infringe the copyright provided they give an
undertaking to pay the amount determined
by the Controller. Such an undertaking had
been given by the respondents. HELD by
Barr J granting the applicant the relief sought:
(1) having regard to the wording of ss. 17
and 31 of the 1963 Act, it was evident that
a dispute referred to the Controller under
s.31 could not include the broadcasting or
public user of a published recording in the
future; and therefore the right to continue to
broadcast material which is in dispute sub-
ject to an undertaking does not include
future use or broadcasting; (2) although RTE
had argued that, since it was a statutory
broadcasting body, it was not required to
seek a licence from PPI in the way that the
disco operators were, this was irrelevant
since the crucial queston was whether a
licence scheme existed; and s.32 of the
1963 Act envisaged that a licence scheme
was in the nature of a standing invitation to
treat and that a reference under s.32 was not
dependent on the existence of a licensor-
licensee relationship.
Performing Rights
Society Ltd v Workingmen's Club and Insti-
tute Union Ltd
[1988] FSR 586 approved; (3)
the tenor of the 1963 Act was that, where a
licensing scheme was in existence, the mat-
ter should be referred to the Controller un-
der s.32 whose decision would be binding
on all members of the class of persons
affected by the decision but that, pending
the decision of the Controller, the require-
ment to pay the amount set in the scheme
continued to apply to al I persons covered by
the scheme; and accordingly in the instant
case the Controller only had jurisdiction to
hear a dispute under s.32 of the 1963 Act.
D.P.P. (Cloughley) v Mooney High Court
24 June 1992
CRIMINAL LAW - ARREST - WHETHER PERSON IN-
FORMED OF BASIS FOR ARREST - WHETHER TECHNI-
CAL LANGUAGE REQUIRED - ROAD TRAFFIC - DRIV-
ING WITH EXCESS OF ALCOHOL - GARDA INFORM-
ING SUSPECT HEWAS BEING ARRESTED FOR 'DRUNK
DRIVING' - Road Traffic Act 1961, s.49
The defendant had been stopped by a Garda
while driving his car. The Garda got a smell
of intoxicating liquor from the defendant
and his speech was slurred. A breathalyser
test proved positive. The Garda formed the
opinion that the defendant was committing
an offence under s.49(2) or (3) of the 1961
Act. He arrested the defendant under s.49(6)
of the 1961 Act and informed the defendant
that he was being arrested pursuant to s.49(6)
of the 1961 Act for the offence of drunk
driving. The defendant was charged under
s.49(3) with the offence of attempting to
drive when he was in excess of the permit-
ted level of alcohol. At his trial in the District
•Court, it was argued that the defendant had
not been validly arrested since the offence
of 'drunk driving' was, if anything, an of-
fence under s.49(1) of the 1961 Act and not
the offence under s.49(3) with which the
defendant had been charged, and that, ac-
cordingly, the defendant had not been
propely informed of the basis on which he
was being arrested. This point was accepted
by the District Court judge. On case stated
to the High Court HELD by Blayney J finding
the District Court judge had erred in law: the
description 'drunk driving' applied equally
to s.49(1), (2) and (3) since clearly the reason
why driving under the three different cir-
cumstances was prohibited was because
the concentration of alcohol in their systems
would be likely to impair the ability to have
proper control of a motor vehicle, and thus
in substance there was very little difference
between the three subsections; and since
the purpose of the rule requiring that the
Garda inform the person of the reason for an
arrest is based on ensuring that the arrested
person knows in substance why he is being
arrested, rather than is given a technical
explanation, the use of the phrase 'drunk
driving' in the instant case was a sufficient
communication of the reason for the arrest.
Christie v Leachinsky
[1947] AC 573 ap-
plied.
Per
Blayney J: in light of the positive
result from the breathalyser test, the defend-
ant must have been well aware of the basis
for his arrest, and so it must be doubtful
whether the Garda was required to explain
the basis on which he was being arrested.
Director of Public Prosecutions v Rooney
High Court 25 May 1992
CRIMINAL LAW - GARDA POWER TO STOP AND
SEARCH - WHETHER GARDA SHOULD FIRST IN-
FORM PERSON OF BASIS ON WHICH SEARCH POWER
BEING EXERCISED - WHETHER NECESSARY TO AR-
REST PERSON BEFORE EXERCISING SEARCH POWER
- Dublin Police Act 1842, s.29 - Constitution, Article
40.4
The defendant, while walking on a street in
Dublin, had been approached by a member
of the Garda Siochana and was asked what
money he had in his hand. On showing a 10
and 5 note, he was asked if he had any other
money and he said 'No'. The Garda then put
his hand in the defendant's pocket, the
defendant lifting his hands out of the way to
allow the Garda reach towards the pocket.
The Garda found a 20 note which he be-
lieved was a forgery. The defendant was
charged with possession of forged bank
notes, contrary to s.8 of the Forgery Act
1913. At his trial in the District Court, objec-
tion was taken to the admission ofthe Garda's
evidence on the ground that the Garda had
failed to inform the defendant of the legal
basis on which he was searching the de-
fendant. The prosecution relied on s.29 of
the 1842 Act, which provides that a mem-
ber of the Garda Siochana may stop and
search any person who may be reasonably
suspected of having or conveying in any
manner any thing stolen or unlawfully ob-
tained. On case stated to the High Court
HELD by O'Hanlon J: (1) although the power
to stop and search contained in s.29 of the
1842 Act was less drastic in its effect than a
power of arrest, it nonetheless amounted to
a substantial and significant interference
with the liberty of the subject; and if the
constitutional guarantees of liberty of the
person were to be adequately defended and
vindicated, it required that before the power
of search in s.29 could be lawfully exer-
cised, the person stopped was entitled to be
informed of the nature and description of
the statutory power being invoked, namely
that he was suspected of having or convey-
ing something stolen or unlawfully obtained,
and inform the person of the search power
contained in s.29 of the 1842 Act.
Christie v
Leachinsky
[1947] AC 573 and
The People
v White
(1947] IR 247 referred to; (2) it was
not required to arrest the person prior to
exercising the power to search, unless this
was necesary for some other reason.
Doolan v Director of Public Prosecutions
High Court 15 September 1992
CRIMINAL LAW - OFFENCE - 'INDECENT ASSAULT' -
WHETHEROFFENCE KNOWN TO THE LAW WHETHER
CONSTITUTING ASSAULT WITH AGGRAVATING FEA-
TURES - STATUTE PROVIDING PENALTIES FOR INDE-
CENT ASSAULT BUT NOT EXPRESSLY CREATING OF-
FENCE - FORM OF INDICTMENT - COMMON AS-
SAULT INCLUDED AS ALTERNATIVE TO INDECENT
ASSAULT CHARGE WHETHER BAD FOR DUPLICITY -
Offences against the Person Act 1861, s.52 - Criminal
Law Amendment Act 1935, s.6 - Interpretation Act 1937,
s. 14 - Criminal Law (Rape) Act 1981, s. 10 - Criminal Law
(Rape) (Amendment) Act 1990, s.2
The applicant was indicted in the Circuit
Criminal Court, the indictment containing
two counts. The first count was indecent
assault on a named female, the particulars
being 'contrary to common law as provided
for in section 10 Criminal Law (Rape) Act
1981. Contrary form of the statute in such
case made and provided.' The second count
was assault, the particulars being 'contrary
to common law and contrary to form of the
statute in such case made and provided.'
The applicant's counsel argued that there
was no offence known to the law as inde-
cent assault. This argument was rejected by
the Circuit Court judge
(Judge
Moriarty).
The applicant entered a plea of guilty to the
second count. The applicant then applied
on judicial review for an order of prohibi-
tion, on the grounds that the offence of
indecent assault was unknown to the law
and, in the alternative, that having accepted
the guilty plea to the second count on the
indictment, the trial court was precluded
from proceeding with Count No.1, the inde-
cent assault charge, since it amounted to a
charge of simple assault, albeit of a higher
category to that in Count No.2. HELD by
O'Hanlon J dismissing the application for
judicial review: (1) assault was a misde-
meanour at common law, which was indict-
able at common law according to the aggra-
vating features associated with particular
forms; (2) having regard to the wide mean-
ing given to assault, which could incorpo-
rate what was strictly speaking a battery, it
was thought right to regulate by statute the
penalties that could be imposed for different
circumstances of assault, and this involved
a statutory regulation of the penalty to be
imposed for the old common law misde-
meanour of assault; and accordingly, stat-
utes which provided for a penalty for inde-
2