The Gazette 1961 - 64

Attorney-General before making any such direction to consider the evidence contained in the depositions taken in the District Court, and to be of the opinion that it disclosed zprimafacie case against the accused person such as would have been sufficient to put the accused person on his or her trial, then it would have placed him in a position exactly similar to that of the District Justice; and it could have been rightly contended that in making a direction in such circumstances the Attorney-General would be doing something which he could not do constitutionally, namely, exercise the judicial powers of the State. As had been pointed out, the section did nothing of the kind. It enabled the Attorney-General to reverse the decision of the District Court and it gave him that power absolutely and without reservation or qualification of any kind. It was to be presumed that the legislature, when entrusting the holder of a great public office with such a power, felt justified in thinking that it would never be abused. That power, said Mr. Justice Davitt, had seldom been exercised and he felt sure that on the rare occasions it had been exercised the Attorney-General had acted judicially and had decided to make the necessary direction only after careful consideration of the depositions and when he had been of the opinion that they disclosed a prima facie case against the accused person and he had been satisfied that the District Court had erred in refusing informations. Nevertheless, the power given was absolute, unqualified and, as far as the provisions of the section went, did not have to be exercised judicially. As far as the section was concerned the Attorney- General need not even read the depositions; hear submission by or on behalf of the accused; see or hear witnesses; and he might even be satisfied that the decision of the District Court was right; neverthe– less he had the power to reverse it and direct that the case be sent for trial. It was difficult to imagine a power which could be less judicial. He did not think that when making a direction under .the section the Attorney-General could be said to be exercising the judicial power of the State. That was, however, by no means the end of the matter, continued Mr. Justice Davitt. If he was correct in holding as he did, that when refusing informations the District Court was making a judicial decision in exercise of its criminal jurisdiction, exercising the judicial power of the State and administering justice within the meaning of Article 34 (i) of the Constitution, then any attempt on the part of the Executive to reverse such a decision was "an unwarrantable interference . . . with the operat– ions of the Courts in a purely judicial domain". It was just as much an unwarrantable interference as was the enactment bv the Oireachtas of the Sinn

Diana Shanahan, on charges arising out of the operations of Shanahans' Stamps Auctions Ltd., Dun Laoghaire, cannot take place. Mr. Justice Davitt, delivering a reserved judgment, dismissed an application by the Attorney-General to have set aside a conditional order obtained by Mrs. Shanahan prohibiting Judge Conroy from trying Mrs. Shanahan on the charges, and setting aside the order of the Attorney-General returning her for trial; notwithstanding that informations had been refused by a district justice; and setting aside a direction of the Chief Clerk of the Dublin District Court, for her to attend for her trial. Mr. Justice Davitt made the conditional order absolute, and allowed costs to Mrs. Shanahan, Glenageary, Co. Dublin. Mr. Justice Davitt said that if the Attorney- General could, within the terms of the Constitution, be empowered to reverse such a decision of the District Court, then he, and anyone else, could be empowered constitutionally to reverse any judicial decision of any court. If the Attorney-General could do what he had done in this case the results would be far reaching indeed. The Courts could be rendered impotent; and if their efficacy were to disappear there would cease to be any reality in the constitu– tional guarantees as to life, person or property. Any decision of the Courts that a person had not been tried in due course of law, or that he was being held in unlawful custody, or that his property had been illegally appropriated by the State, could be nullified. The Constitution itself could be deprived of any efficacy, and would cease to have any reality since any decision of the Supreme Court or the High Court restraining Members of the Executive from exceeding their constitutional powers, or declaring an enactment of the Oireachtas to be repugnant to the Constitution and therefore invalid, could be set at naught. Mr Justice Davitt reviewed the events from the arrest of Mrs. Shanahan on May zyth, 1960, on charges of conspiracy to defraud, fraudulent conversion and obtaining money by false pretences, to the refusal of informations by the District Justice and the order of the Attorney-General of March z8th last directing that she be sent for trial to the Circuit Court on a charge of conspiracy to defraud, and five charges of fraudulent conversion. Mr. Justice Davitt said he had come to the conclusion that in receiving or refusing informations on the preliminary investigation of an indictable offence the District Court was exercising the judicial power of the State and administering justice within the meaning of the Articles of the Constitution. If section 6z of the 1936 Act had required the