The Gazette 1986

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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
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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