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GAZETTE

SEPTEMBER 1986

CERTIORARI

No insurance - Convicted and imprisoned -

term of temporary release - breach of term

- re-committed - illegality of re-activation

of sentence - fairness of procedures.

On 9 April, 1983, the Prosecutor was

convicted in the District Court of driving

without insurance and was sentenced to six

months imprisonment. The order was

affirmed by the Circuit Court on 21

February, 1984. With the benefit of

remission he would in the ordinary course

of events be due for release on 5 July, 1984.

However, on 28 March, 1984 he was

released on full temporary release, a stated

condition of his release being that he

should report to a Probation Officer as

requested.

The Respondent received a letter dated

17 April, 1984 from his Probation Officer

stating that he had been in breach of his

temporary release in failing to contact her

and that he had not been available when

she visited his home on three dates in April

1984. On 30 April, 1984, the Respondent

wrote to the Superintendent,

Garda

Station, Clondalkin, requesting that he

have the Prosecutor arrested and returned

to custody. There was no apparent

response to this request and almost seven

months later the Prosecutor received a

form from Chief Officer Davis dated 21

November, 1984 referring to the Prosecutor

having been re-committed for breaking the

terms of his temporary release. The re-

committal occurred on the same date.

On 23 November, 1984, the Prosecutor

was brought

to the office of

the

Respondent and the letter from the

Probation Officer, dated 17 April, 1984,

was read out to him. The explanation given

by the Prosecutor was not accepted by the

Respondent. The Prosecutor challenged

the legality of the purported re-activation

of his sentence for the period in which it

was alleged that he was unlawfully at

large — from 17 April, 1984, to 5 July,

1984. He first obtained a conditional order

of

Certiorari

declaring his rearrest illegal.

In making absolute the conditional order

of

certiorari

the Court HELD:

1. The purported re-activation of the

sentence after such a long period and

with no explanation for the delay was

unfair. Fairness of procedure was

emphasised in the judgments of the

Supreme Court in

The State

(Murphy)

-v-

Governor of St. Patrick's

Institu-

tion

[1985] ILRM 141.

2. The finding was confined to the

particular facts of the present case.

Every other case must be judged on its

own facts.

Michael Cunningham

-v- The Governor of

Mountjoy

Prison.

Notice

Party,

The

Attorney General — High Court (per Egan

J.), 5 December 1985 —

unreported.

Damien McHugh

CRIMINAL

District Court prosecution by Garda -

Prosecution not taken in private capacity

as member of public - Case stated -

Whether right of common informer to lay

complaint withdrawn or restricted by

Statute.

On 16 May 1984, in the District Court,

the Dublin Well Woman Centre Ltd.

appeared charged that on 6 September

1983, at Lower Leeson Street, it supplied

contraceptives otherwise than by way of

sale under and in accordance with Section 4

of the Health (Family Planning) Act. 1979,

contrary to Section 4(4) of the Act. The '

Complainant, Inspector P.O. Courtney, in

cross-examination, stated that he was

acting as a member of the Garda Siochana

in prosecuting the charge and was not

acting.in

his private capacity as a member

of the public. Counsel for the defendant

company requested the District Justice to

state a case on the following points:

(a) whether a prosecution for the offence

alleged in the complaint is maintain-

able by a common informer; and

(b) whether in view of the evidence of

Inspector Courtney and having regard,

inter alia,

to the specific provisions

combined in Section 96 (1) and (2) of

the Health Act, 1974 and Section 44 of

the Health Act, 1953 he may be

regarded as having acted as such

informer

in

the

institution

and

prosecution of the proceedings.

Section 44 of the Act of 1953 states: " An

offence under Part V, Part VIII or Part IX

of the Principal Act may be prosecuted by

the health authority in whose functional

area the offence is committed".

At no stage was it suggested that the

offence charged related to an offence under

those parts of the Act of 1947.

The answers to the questions submitted

in the case stated depended upon the

construction of the provisions of Section 96

of the Act of 1947.

Section 96 reads:

(1) The Minister may, with the consent

of the Minister for Justice, by order

provide for the enforcement by the Garda

Siochana of any specified provision of this

Act or the regulations or orders made

thereunder in the whole or a specified part

of the State and either generally or in so far

as such provision relates to a specified

matter.

(2) An order under this section may, in

particular, provide for all or any pf the

following matters:—

(a) the

prosecution

of

offences

by

members of the Garda Siochana in lieu

of a health authority;

(b) the conferring on members of the

Garda Siochana of any of the powers

specified in Section 93 or Section 94 of

this Act;

(c) the making of payments to the Minister

for Justice by a health authority in

respect of the enforcement of their

functional area of the provisions to

which the order relates;

(d) the regulation of the amounts of any

such payments, or the times at which

they are to become due and of the

manner in which they are to be made.

(3) A member of the Garda Siochana,

for the purpose of enforcing in the

functional area of a health authority a

provision to which an order under this

section relates, may require the authority to

assist him by making available the services

of a medical or other officer, by furnishing

an ambulance or in any other manner

within the powers of the authority, and the

authority shall comply with such require-

ment.

(4) A member of the Garda Siochana

shall not, by virtue of an order under this

section, exercise a power spccificd in

Section 93 or Section 94 of this Act

unless—

(a) he is in uniform, or

(b) he produces for inspection by the

person in relation to whom he exercises

the power or in occupation or in charge

of the premises in relation to which he

exercises the power, if such person

requests him so to do, his official

identification c a r d ".

HELD: —

The proper meaning to be given to the

phrase "in lieu of the health authority" as

used in sub-section 2(a) was that it

provided only for the circumstances in

which a health authority was empowered to

prosecute offences for the purpose of

enforcing the provisions of the Acts,

regulations and orders within its area of

jurisdiction.

The conferring by Statute of the power

to prosecute offences under these Health

Acts on the Minister or a health authority

seemed to be in ease of and not in substitu-

tion for the Garda Siochana.

That a member of the Garda Siochana

prosecuting a charge in the District Court

in his own name does so as a common

informer had been established beyond

doubt by a number of authorities.

The prosecution of offences in contra-

vention of Section 4 of the Act of 1947 was

not a necessary prerequisite for a prosecu-

tion of such an offence by a member of the

Garda Siochana. The right of a common

informer to lay a complaint and prosecute

in a court of summary jurisdiction for an

offence contrary to Section 4 or any otljer

section of the Act of 1979 was not

withdrawn nor restricted by Statute. The

answers to Doth questions in the case stated

was, therefore, 'Yes*.

Inspector P.G. Courtney

-v-

Dublin

Well

Woman Centre Ltd. — High Court (per

Gannon

J.),

15 November

1985 —

unreported.

Damien McHugh

MALICIOUS INJURY

Fire in factory during working hours

caused by 15 year old male employee. Box-

room where cardboard boxes made up and

adhesive labels for the boxes contained on

rolls of backing paper hung from the

ceiling, strips of backing paper which was

highly flammable scattered on floor.

Employee lit a cigarette and match, ignited

backing paper.

On 18 August, 1981, a fire occurred at

the Applicants' factory in Co. Waterford,

as a result of which a large quantity of meat

and sundry other items were destroyed. An

application for compensation for criminal

injury to property was made to Waterford

County Council under the Malicious

Damage code that was in force prior to the

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