301 / 330
GAZETTE
N O V E M B E R
1986
Comment
(continued from p.279)
The 1986 Act does provide (section 1) that the issuing
of a summons pursuant to the 1986 Act "by the appro-
priate office of the District Court" is to be "a matter of
administrative procedure". However, the 1986 Act does
not repeal sections 10 and 11 of the 1851 Act but, on the
contrary, provides that a summons duly issued under
the 1986 Act should "be deemed for all purposes to be a
summons duly issued pursuant to the law in force
immediately before the passing of (the 1986) Act". The
1986 Act further provides that the procedures set out in
the 1986 Act "in relation to applications for, and the
issue of, summonses are without prejudice to any other
procedures in force immediately before the passing of
(the 1986) Act whereby proceedings in respect of an
offence can be commenced and, accordingly, any of
those other procedures may be adopted, where appro-
priate, as if (the 1986) Act had not been passed".
As a transitional measure, the 1986 Act provides that
where a complaint in relation to an offence was duly
made and received by a District Court Clerk or a Peace
Commissioner on or after 20 March, 1986 (the date of
the High Court judgment) and before the passing of the
1986 Act (19 December, 1986) "and during the period in
which the complaint was required by law to be made",
that it would be lawful for the complainant to apply,
not later than 20 March, 1987, "for the issue of a
summons in relation to the offence and for the appro-
priate office of the District Court to issue the
summons".
Regrettably, in the absence of a repeal of sections 10
and 11 of the 1851 Act, the 1986 Act has not met the
important
4
obiter dicta
' of the Chief Justice querying
"the consequences from the point of view of constitu-
tional validity of a conclusion that the powers given to
the Peace Commissioner (per the Courts of Justice Act,
1924) and District Court Clerk (per the Court Officers'
Acts, 1926/51) to receive a complaint and issue a
summons constituted the carrying out of a judicial act in
a criminal matter". The Chief Justice further observed
in his judgment, as a clear guideline to the legislature,
that
"there (was) much to be said for the point of view
that with regard to summary summonses issued in
criminal cases, by members of the Garda Siochana
at least, it (was) no longer necessary or appropriate
for a Justice of the District Court or for any other
person to reach a judicial determination as to
whether the summons should be issued . . . (and
that) . . . consideration . . . should be given to
replacing sections 10 and 11 of the Act of 1851 with
statutory provisions more suitable to the modern
District Court and which could include the proce-
dure for the issuing of summonses, in criminal cases
at least, as being an administrative procedure only,
and which could then, without any question of
constitutional challenge, provide that the complaint
should be made to the District Court and that the
summons should be issued by the officers of that
Court upon the making of the complaint".
What the 1986 Act has done, by not repealing sections
10 and 11 of the 1851 Act, is to give rise to two different
procedures, namely, an expressly stated 'administrative'
procedure for the issuing of summonses (after receipt of
a complaint) "under the general superintendence of an
appropriate District Court Clerk", pursuant to the 1986
Act, and (according to the Supreme Court) a 'judicial'
procedure (under sections 10 and 11 of the 1851 Act, as
adapted, applied, extended and amended!), whereby a
District Justice, a Peace Commissioner or a District
Court Clerk personally receives and considers a
complaint and then issues a summons. This in turn gives
rise to the query whether calling the procedure
'administrative' (as the 1986 Act does) makes it
'administrative' in law and therefore delegatable by a
holder of the office of District Court Clerk to his staff,
when at the same time the still extant 1851 Act
procedure has been held to be 'judicial' and non-
delegatable.
Lawyers are sometimes required to raise technical
points in the interests of their clients. It is, however,
fundamentally desirable that there should be no doubt
about the authority of the District Court and its officers
to receive complaints and to issue summonses in
criminal cases. A totally unnecessary uncertainty as to
whether
such
procedures
are
'judicial'
or
'administrative', as a result of the continued existence
of sections 10 and 11 of the 1851 Act, should be
removed by further legislation. It is logical and sensible
that the receiving of a complaint and the issuing of a
summons requiring a person to appear before the
District Court to meet that complaint, should be a
purely administrative procedure designed to initiate the
judicial process of the District Court.
It is time for the Department of Justice and our
legislators to recognise, towards the end of the 20th
century, that procedures, originating in the middle of
the 19th century in very different circumstances, are no
longer adequate or capable of being adapted and
applied piecemeal.
It is important that a respect for the Courts and their
processes should be maintained. If summonses in
criminal cases are struck out in District Courts all over
the country because of avoidable technical uncertain-
ties, that respect will be at risk.
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