254 / 364
Attorney General, the rights of a common in
former were preserved, and that he could take
depositions in the case, but that he (Justice) had
no power to proceed further, or return the de
fendant for trial, if the Attorney General did not
take over
the proceedings. After
lengthy and
protracted legal submissions, in January 1965, the
Justice adjourned the case to 24th February, 1965
for the taking of depositions.
3. On 22nd January, 1965 the defendant ob
tained from Mr. Justice McLoughlin a conditional
order of prohibition directed to the District Justice
upon the ground that, by reason of the previously
cited provision of the Griminal Justice (Adminis
tration) Act 1924,
the District Justice had no
jurisdiction to take depositions or hear or enter
tain any further proceedings in the case.
4. On 21st July, 1965 Mr. Justice McLoughlin
disallowed the cause shown by the complainant
and made absolute the conditional order of pro
hibition.
5.
The complainant appealed to the Supreme
Court on the single issue whether the effect of
Article 30, Section 3, of the Gonstitution, which
states that "All crimes and offences prosecuted in
any Gourt constituted under Article 34 of this
Gonstitution other
than a Gourt of
summary
jurisdiction shall be prosecuted in
the name of
the people and at the suit of the Attorney General
or some other person authorised in accordance
with law for that purpose"—has been to bar the
right of an individual, whether citizen or not,
to initiate by information or summons a prosecu
tion
in respect of an
indictable misdemeanour
which the accused objects to being dealt with
summarily and in respect of which he
is un
willing to plead guilty—and further bars his right
to maintain such prosecution by way of prelimin
ary investigation of the offences charged up to the
point where the District Justice either refuses in
formations or returns the accused for trial.
6. On the 6th May, 1966, the Supreme Court
(O Dalaigh, C.J., Lavery, Haugh, Walsh and
O'Kccfee JJ.) unanimously, per O Dalaigh, C.J.,
held that the valuable right of private prosecu
tion still subsists under Article 3D, Section 3, of
the Gonstitution, and the plain meaning of that
section left the existence of private rights un
disturbed. However, a prosecution on indictment
must be conducted by the Attorney General in
accordance with Section 9
(1) of the Griminal
Justice (Administration) Act 1924. Consequently
a private prosecutor may only conduct a prosecu
tion to the point where the District Justice re
ceives informations, and returns the accused for
trial. From that point, the Attorney General must
take over the case. Consequently the appeal was
allowed, and the order of the High Court grant
ing an absolute order of prohibition was
re
versed.
(The State (Patrick Dudley Ennis) v District
Justice Farrell (Jeremiah Crean, Applicant). Un-
reported.
Solicitor's negligence—Failure
to have witnesses
available at trial
The plaintiff was charged with robbery with
aggravation and was at his trial represented by the
defendant solicitors by virtue of a defence certi
ficate. Before the trial he had told them that at
about 9.20 a.m. on 15th March 1960, the day of
the robbery, he had been at Penge and had there
asked a bus conductor and a chimney sweep the
way to Hither Green. The robbery took place at
9.30 a.m. some six miles distant at Mottingharn
and it was agreed that if he had been at Penge he
could not have taken part in it. Neither the con
ductor nor the sweep gave evidence at his trial
and on 12th May 1960 he was convicted. An
appeal to the Gourt of Griminal Appeal was dis
missed and was further referred to the Court of
Criminal Appeal by the Home Secretary. Subse
quently the plaintiff brought an action for dama
ges against the solicitor alleging that he had in
formed the solicitor's managing clerk of his con
versation with the conductor and the sweep and
had requested him to trace and call them at the
trial and that in breach of duty the solicitors were
guilty of negligence as a result of which the con
ductor and sweep were not present and did not
give evidence at his trial and that he was con
victed and sentenced to nine years' imprisonment.
Melford Stevenson, J., said that after reading
the evidence at the trial and the evidence and
findings of the Gourt of Griminal Appeal, he too,
had come to the same conclusion as the Court of
Criminal Appeal that, even if the conductor and
the sweep had given evidence at the trial, the jury
would have come to the same verdict. Although
the plaintiff had failed to prove that it was prob
able that he would have been acquitted, there
was still the question whether the solicitors were
in breach of duty. The solicitors had taken reason
able and successful steps to trace the sweep and
had come to the decision that his evidence was
valueless. Events had proved that that decision
was right. The conductor was easy to trace and
the arrival and departure times from Penge were
a matter of record. The plaintiff's conversation
with the conductor was a matter of vital impor
tance to his case. Because the managing clerk had
come to the decision that it would be a waste of
36