The Gazette 1986

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INCORPORATED LAW SOCIETY OF IRELAND GAZETTE
Vol. No. 80 No. 10 December 1986
In this issue . . .
Comment 279,291
The Conclusiveness of Certificates
of Registration of Company Charges 281
Book launches 294
Presentation of Parchments 298
The Duties of an Agent to a
Principal 299
Medico Legal Society 304
Executive Editor:
Editorial Board:
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necessarily the views of the Council of the Society.
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does not necessarily indicate approval by the Society for
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Published at Blackhall Place, Dublin 7.
Comment . ..
. . . Summa ry Justice
The Courts (No. 3) Act, 1986 ("the 1986 Act") was
passed as a matter of urgency just before the
Oireachtas Christmas recess and was signed into law by
the President on 19 December, 1986. The urgency was
brought about by the Supreme Court judgment (per
Finlay C.J., nem. diss.) in the case of The State (at the
prosecution of Garda John Clarke) -v- District Justice
Maura Roche and Peter Senézio, delivered on 12
December, 1986. The Chief Justice, in a unanimous
judgment of a full Supreme Court, held that because of
the provisions of sections 10 and 11 of the Petty
Sessions (Ireland) Act, 1851 ("the 1851 Act") a
complaint of a criminal offence made to the appropriate
District Court Clerk, in order to be valid, had to come
to the actual attention of such District Court Clerk
within the appropriate time (almost always six months)
from the date when the cause of complaint arose, before
a summons, on foot of such complaint, could be validly
issued; and that on the terms of section 10 of the 1851
Act, it was "an inescapable conclusion" that the issue
of a summons upon the making of a complaint was a
judicial as distinct from an administrative act and,
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 staff.
The consequence of that decision was that a large
number of pending summonses issued by means of a
computer were likely to be struck out by the District
Court as being invalid, on the ground that it could not
be established that any given complaint directed to the
computer section came to the attention of the District
Court Clerk to whom it was addressed.
The Department of Justice should reasonably have
anticipated the decision of the Supreme Court, at least
since the very carefully reasoned High Court judgment
of Barron J. in the same case delivered on 20 March,
1986, in the same terms as the affirming judgment of the
Chief Justice. The Department should, in fact, have
reasonably anticipated the ultimate outcome a lot earlier
at the time when the issuing of summonses, in particular
in Road Traffic Act cases in Dublin, became a computer
activity. The time between the High Court judgment in
March 1986 and the Supreme Court judgment in
December 1986 should have been used to draft legisla-
tion to repeal sections 10 and 11 of the 1851 Act and to
substitute purely administrative procedures for the
making and receiving of complaints by the appropriate
District Court Office and the issuing of District Court
summonses. (continued on p.291)
279