The Gazette 1988

GAZETTE

SEPTEMBER 1988

accused guilty on one summons and by taking the remainder into account. This occured in March 1987, but it was only some six mon t hs later that the Director moved for an application for judical review. Lar-dner J. agreed t h at t he respondent District Justice had erred in law in adopting the course that he did. The Supreme Court had held in the Director of Public Prosecutions -v- Grey 16 that the general words of s.8 of the Criminal Justice Act 1951 (which allows the District Jus t i ce to take other offences into account where the accused pleads guilty to such offences) could not apply to excise and betting penalities, as a special code for such offences had been prescribed by the Excise Man- agement Act 1827. It followed, therefore, that the order made by the District Justice would, in the ordinary course of events, be liable to be quashed. However, Lardner J. was of the opinion t hat the Director had delayed unduly and refused the relief sought. The Director had, in e f f e c t , s o u g ht an o r der of mandamus in addition to certiorari against the District Justice but the judge found that: " T h e application was made outside the three mon th period provided for in 0.84, r.21(1) and that it was not made promptly. I also find that there is no evidence before me of any good r ea s on f or e x t e n d i ng t h i s period . . . I am (also) not disposed to make an order for certiorari wh i ch would quash the orders of the District Justice as this wou ld not advance the cause of justice. In all the

circumstances, the application for certiorari fails because it was made promptly. There is no explanation why it was not made promptly after the 20 March 1987 and long before 9 September 1987." 17 Here we see the change wh i ch the 0 . 84 time-limits seem to have brought about. The Director is p r e c l u d ed in t h i s case f r om o b t a i n i ng orders qua s h i ng an admi t t ed ly ultra vires decision because he did not apply promptly, even though there is no suggestion that this delay was, as such, prejudical to the notice parties. It is also wo r th noting that the Director had applied - in case of the certiorari application - with the six mon th time-limit. 18 This may be contrasted w i th the approach of the O'Hanlon J. in The State (Director of Public Prosecutions) - v- Ó hUadaighJ 9 In that case the respondent District Justice had convicted the accused of certain indictable offences wh i ch were capable of being tried summarily. However, the Director had not given his consent to summary trial under the Criminal Justice Act 1951, and O'Hanlon J. had little difficulty in concluding that the convictions were in excess of j u r i sd i c t i on. The no t i ce party, however, contended that certiorari should not issue as he had now served several mo n t hs of his s e n t e n ce and t h a t he was prejudiced by a delay of more than four mon t hs on the part of the Director. While the Director in that case admittedly sought to explain the delay (unlike the Macklin case) the fact remains that O'Hanlon J. was not prepared to allow a plea of delay to defeat an application to q u a sh o r de rs w h i c h we re manifestly w i t h o ut jurisdiction. Moreover, the notice party in that case was clearly affected by the delay in that he had served a substantial part of his sentence. The notice parties in Macklin suffered no such prejudice, yet were able to resist, the application for judicial review by reason of the fact that the Director had not moved promptly. D.P.P. -v- SOLAN The j udgment of Barr J. in Solan - v- Director of Public Prosecut- ions 20 is along similar lines. Here the applicant sought to quash a

mendations in prescribing a fairly strict time-limit in the new judicial review procedure. There are t wo fundamental difficulties w i th such a strict time-limit. First, it is out of line w i t h the spirit of the Furey decision and the whole object of the new reforms. It was never the intention of the Supreme Court in t hat case, or of Law Reform Commission, that an applicant for judicial review w i t h a meritorious case should find himself shut out by reason of strict new time limits. The new Rules were designed to help - not to hinder - access to the courts as far as applications for judicial review were concerned. The second reason raises the spectre of O'Reilly -v- Mackman. If, for example, a l i t i gant seeks declaratory relief by way of judicial r e v i ew and f i n ds t h a t his application is out of time, wh at would be to stop him proceeding by way of plenary summons? He has six years to commence his action (subject always to the doctrine of laches where his delay is prejudicial t o t he d e f e n d a n ts in t he proceedings), nor does he have to comply w i th the requirements as to seeking leave or putting his case on affidavit. But if he can by-pass these requirements w i t h impunity, is he n ot u n d e r m i n i ng t he safeguards in the judicial review process? And in that case wou ld there not be much to be said for the O'Reilly -v- Mackman approach and ordering that the proceedings be struck out as an abuse of process? In o t h er wo r d s, if t he 0 . 8 4 requirements as to time-limits, leave and so on b e c ome so restrictive as to encourage litigants to by-pass t hem by issuing plenary p r o c e e d i n g s, t h en t h is w i ll inexorably lead to the adaptation by the Irish Courts of O'Reilly -v- Mackman principles in order to stop this circumvention of the 0 . 84 procedures. This is way decisions on the 0 . 84 time-limits are of such immediate interest. RECENT CASE LAW In Director of Public Prosecutions - v- Mack/in 15 the accused, Ellen Whelehan and James Whelehan, pleaded guilty to several betting offences. The respondent District Justice agreed - despite protests from the solicitor for the Director of Public Prosecutions - to deal w i th the matter by finding each of the

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