320 / 322
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.ofSection 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