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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Social, Community and Family Affairs v. Lawlor [2003] IEHC 163 (17 February 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/163.html Cite as: [2003] IEHC 163

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[2002 No. 1758 S.S.]

THE HIGH COURT
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISONS) ACT, 1961

Between:

THE MINISTER FOR SOCIAL, COMMUNITY AND FAMILY AFFAIRS

Prosecutor

-and-
ORLA LAWLOR

Defendant

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 17th February, 2003.

This matter comes before this court on a consultative case stated by Judge Mary Martin of the District Court assigned to District No. 15 sitting at Carlow, pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act, 1961.

At a sitting of the District Court on the 4^th April, 2000 two complaints in the matter of the Minister for Social, Community and Family Affairs (hereinafter referred to as 'the Minister') versus Orla Lawlor were listed for hearing.

The complaints were that the defendant:-

1. Did on the 27^th May, 1997, within the State knowingly for the purpose of obtaining unemployment assistance for herself, make a false representation, to wit, that she was unemployed on each day between 21^st May, 1997 and the 27^th May, 1997 when she was employed on those days by Southside Central Cleaners Ltd. of 48 Townsend Street, Dublin 2, contrary to s. 213 (1) of the Social Welfare Consolidation Act, 1993;

2. Did on the 27^th May, 1997, within the State knowingly for the purpose of obtaining unemployment assistance for herself, make a false representation, to wit, that she was unemployed on each day between 18^th June, 1997 and the 24^th June, 1997 when she was employed on those days by Southside Central Cleaners Ltd. of 48 Townsend Street, Dublin 2, contrary to s. 213 (1) of the Social Welfare Consolidation Act, 1993;

The case stated recites that at the hearing before the District Court the following facts and matters were admitted:

(i) The accused was summonsed for two alleged offences of knowingly for the purpose of obtaining unemployment assistance making false representations that she was unemployed when she was employed on those days.

(ii) The dates of the alleged offences were the 27^th May, 1997 and the 24^th June 1997.

(iii) A summary prosecution under the Social Welfare Acts may be brought at the suit of the Minister for Social Community and Family Affairs at any time within two years of the date of when the alleged offence was committed.

(iv) The summonses before me were summonses which had been re-issued from the District Court office on the 16^th February, 2001. Summonses had originally been issued pursuant to an application made on the 13^th May, 1999 and returnable to Carlow District Court on the 23^rd June, 1999 (hereinafter referred to as 'the original summonses'). A copy of the original summonses issued are annexed hereto.

(v) The original summonses were sent for service to the Superintendent of An Garda Siochána, Carlow. The summonses were not served by the Gardaí on information received by them from the defendant's husband that the defendant had been admitted as an in-patient at St. Dympna's Hospital, Carlow and were returned unserved to the State Solicitor by letter of the 11^th June, 1999, a copy of which letter is annexed hereto.

(vi) By letter of the 7^th December, 2000 the Department of Social Community & Family Affairs instructed the State Solicitor to continue the proceedings again the accused and on foot of same the State Solicitor sought and obtained the re-issue of the summonses returnable to Carlow District Court on the 4^th April, 2001.

(vii) The re-issued summonses were served on the accused on the 10^th March, 2001.

The case stated indicates the contention of the parties before the District Court:-

On behalf of the accused it was submitted that the delay in the prosecution from the 27^th May, 1997 and the 24^th June, 1997 to the 4^th April, 2001 was excessive and because of same it would be unfair and unjust to proceed with the prosecution as these were summary proceedings with a time limit for the issue of the summonses of two years from the date of the alleged offences. This time limit is longer than the usual six months time limit which applies to summary prosecutions. It was contended that due to the fact the summonses were issued at the end of the two year time limit imposed there was a particular onus on the prosecutor to prosecute the accused without further delay. It was further contended that the decision not to serve the summonses due to the illness of the accused was not a sufficient reason for not proceeding. It was submitted that if a matter as to fitness to plead arose this could have been dealt with by the District Court on the return date of the original summons, namely the 23^rd June, 1999.

On behalf of the prosecutor it was contended before the District Court that the accused had accepted the summonses in question had been validly issued within the two year limitation period and that the summonses were properly before the Court. The reason for the non service was the explanation given by the accused's husband to the Gardaí when they sought to effect service and as appeared from a letter of 11^th June, 1999 from Superintendent M.J. Regan to the State Solicitor (annexed to the Case Stated) which showed that at the time the accused was a patient at St. Dympna's Hospital suffering from depression and that she had tried to commit suicide and that her husband did not know when she would be discharged. It was further contended that the accused had not alleged any prejudice or other unfairness other than as to time.

The District Judge reserved her decision pending the determination of this case stated and seeks the opinion of this Court on the following question:-

Is the delay in this case by its nature and extent of such a degree as of itself to be excessive and to justify me in dismissing the summonses?

Submissions

On behalf of the accused it was submitted by Mr. Treacy of counsel that the prosecutor is out of time to bring this prosecution at this stage because the original summonses were issued within the prescribed limitation period of two years, the summonses before the District Court were re-issued on the 16^th February, 2001 over three and a half years after the dates of the alleged offences. It was further submitted that the term "brought" in the context of s. 224 (1) of the Social Welfare (Consolidation) Act, 1993 ('the Consolidation Act') requires that the actual summonses before the court be issued within a period of two years of the alleged offences and secondly that the service of the summonses be within a reasonable period after their issue.

Having referred to the facts of the case, counsel submits that the Gardaí chose not to serve the summonses at a time when they could have effected service by serving the summonses on the accused's husband at her address. The summonses were returned to the State Solicitor unserved by letter of the 11^th June, 1999 from the Gardaí. It was not until the 7^th December, 2000 that the Department of Social, Community and Family Affairs ('the Department') instructed the State Solicitor to continue the prosecution against the accused. Counsel submits that it was at the stage when the re-issued summonses were served that the accused became aware of same for the first time.

Counsel sought to refer to the fact that at this time the Department had already entered into an agreement with the accused for the repayment of the alleged overpayment of social welfare by weekly instalments of £10. However, no such fact is recorded in the case stated and I am satisfied that I must answer the question posed in light of the facts recorded in the case stated.

It is submitted that two essential issues arise for determination:-

(a) Whether the prosecutor is entitled to bring this prosecution at this stage given the time limit as prescribed for a prosecution of this nature under s. 224 (3) (b) of the Consolidation Act.

(b) If the prosecutor has proceeded within the time prescribed by statute, whether the delay in this prosecution is so excessive as to contravene the constitutional right of the accused to an expeditious trial.

s. 224 provides, inter alia, as follows:-

"224 (1) Proceedings for an offence under this Act should not be instituted except by or with the consent of the Minister or by an officer authorised in that behalf by special or general directions from the Minister.

…

(3) Notwithstanding the provisions of subs (1) or any provision in any enactment specifying the period within which proceedings may be commenced, a prosecution for a summary offence under this Act may be brought at any time within whichever of the following periods later expires:-

(a) the period of six months commencing on the date on which evidence sufficient to justify the institution of that prosecution came into the possession of the Minister, or

(b) the period of two years commencing on the date on which the offence was committed."

Counsel refers to the fact that the summonses before the District Court are not those that were originally issued within the two year period. Counsel submits that the term "brought" appearing in the section is of significance as it differs from the term "instituted" and "commenced" used in the section. Counsel submits that the term "brought" entails two requirements:-

(a) the issue of the summonses upon which the attendance of the accused is secured before the District Court, and

(b) the service of the said summonses within a reasonable time after their issue.

It is submitted that in this case neither of these requirements have been met. The summonses which are now being brought against the accused were re-issued, but nonetheless issued on the 16^th February, 2001, well in excess of the two year limitation period. Alternatively, if one is to rely upon the fact that original summonses were issued within the two year period, they were not served upon the accused within a reasonable time at the Garda Síochána chose not to serve them at all.

Counsel relies upon the authority of National Authority for Occupational Safety and Health v. Fingal Co. Co. [1997] 1 I.L.R.M. 128, which concerned the time limit for the institution of proceedings after the conclusion of an inquest. Counsel relies upon the principle that a penal statute should be strictly construed.

Dealing with the issue of delay counsel submits that where as in the instant case the proceedings could be instituted at a time up to two years after the commission of the offence, the court should be vigilant to ensure that the proceedings are prosecuted without undue delay. Counsel relies upon the decision of the Supreme Court in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 and submits that where, as in the instant case, there has been excessive delay in the prosecution of the offences, the court might infer that the accused suffered prejudice as a result of such delay and the prosecution might be dismissed. This depends on the circumstances of each case and the matters to be considered include the nature of the offence, the cause of the delay and the possibility that the accused's defence would be impaired.

If the delay is in breach of the accused's constitutional right to a trial with reasonable expedition no proof of actual or presumptive prejudice is required.

Counsel further refers to Cahalane v. Murphy [1994] 2 I.R. 262 and The Director of Public Prosecutions v. Carlton [1993] 1 I.R. 81. It is submitted that in the instant case where no case of prejudice has been made out by the accused that she is entitled to say that the delay of itself is unfair and unjust and that the onus is on the prosecution to justify the delay.

Counsel refers to Knowles v. Malone (unreported, High Court, McKechnie J., 6^th April, 2001) and The State (O'Connell) v. Fawsitt [1986] I.R. 362 and Director of Public Prosecutions v. Arthurs [2002] 2 I.L.R.M. 363 insofar as they indicate the principles upon which the courts should address the issue of delay in proceedings, and in particular in summary prosecutions. Counsel submits that the accused's right to a trial with reasonable expedition under Article 38 of the Constitution has been violated in the circumstances of the instant case.

It was further contended that even if the prosecution is found to be within the statutory period provided for by s. 224 of the Consolidation Act, the delay between the commission of the offences and the date of the hearing is so excessive as to contravene the constitutional right of the accused to an expeditious trial.

On behalf of the prosecutor it is submitted by Mr. Micheál P. O'Higgins of counsel that the accused's first contention is not well founded and is not in accordance with settled law. It is submitted that where the initial summons is issued "within time" and is not proceeded with and a fresh summons is issued outside of the statutory period the jurisdiction of the District Court to determine the charges is not displaced. So long as the issue of the new summons is founded on the original application (as is the case here) a court has jurisdiction to determine the charge set out in the re-issued summons.

Reliance is placed upon the decisions in Director of Public Prosecutions v. Gill [1980] I.R. 263 and Director of Public Prosecutions v. McKillen [1991] 2 I.R. 508 which concerned the re-issue of summonses after the period of six months provided for by law where the re-issue was grounded upon a complaint or application made within the initial period of six months.

It is submitted that there is no basis for importing into the term "brought" the meaning contended for on behalf of the accused. It was submitted that had it been the intention of the Oireachtas to require that proceedings of an offence under the Consolidation Act be issued and served it would have been plainly stated in s. 224 thereof. Instead the section merely provides that the relevant prosecution may be brought at any time within the period of two years commencing on the date on which the offence was committed. It is submitted that to import into the section a requirement that the relevant proceedings be served within the period is to do violence to the language of the section.

It is submitted further that as the initial summonses were applied for on the 13^th May, 1999 and were issued on the same day, returnable for the 23^rd June, 1999 and also the fact that in June of that year the Gardaí made contact with the husband of the accused who informed them that she had been admitted to hospital and had tried to commit suicide and that he did not know when the accused would be discharged from hospital, clearly demonstrates that there was no delay at the time.

These summonses were returned unserved and the fresh summonses issued on the 15^th February, 2001 and were served on the 10^th March, 2001 returnable for the 4^th April, 2001.

Counsel submits that it must be assumed that a judge of the District Court will take all necessary steps to ensure that a trial is commenced in due course of law. Counsel submits that it is only in exceptional circumstances that the Superior Courts will intervene to restrain a trial.

Counsel refers to the judgment of Denham J. in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 where she indicated, inter alia, at p. 258 of the report that the onus is not on the prosecution to explain or justify delay where a valid summons is before the Court. Furthermore, counsel relies upon the judgment of Kelly J. in McKenna v. The Presiding Judge of the Dublin Circuit Criminal Court (unreported, High Court, Kelly J., 14^th January 2000) where at p. 14 of his judgment he indicated that the onus of establishing a breach of the right to a trial with reasonable expedition and grounds warranting the this court's intervention lies at all times upon an applicant in judicial review proceedings. Counsel disagrees with any suggestion that the onus of proof changes to the prosecution, where the delay of itself may be considered to be excessive. Counsel refers to portion of the judgment of O'Neill J. in Director of Public Prosecutions v. Arthurs [2002] 2 I.L.R.M. 363 at p. 376 where he stated as follows:-

"In regard to the first of what I have considered to be the two tests which an accused person must satisfy before being granted relief in respect of delay, I have come to the conclusion that the delay in this case, excessive though it is in the context of summary proceedings, is not such that it gives rise to a necessary inference that the trial will be unfair by reason of frailty of recollection of the witnesses."

The two tests referred to are those mentioned at p. 375 of the report as follows:-

"The first of these tests is that the accused person must show that he has or is likely to suffer an actual specified prejudice or that the length of delay is so inordinate or excessive as to give rise to a necessary inference that there is a real risk that the trial will be unfair. Where an accused person satisfies the above test, it would seem to me that regardless of what reasons may be advanced by the prosecution to justify the delay, be they good or bad, that the accused person's right to an expeditious trial would necessarily be infringed, and hence the accused's constitutional right to an expeditious trial is to be preferred as against the right of the community to prosecute the alleged offence.

The second test is one which focuses directly on the causes for the delay or the reasons or excuses that are advanced in order to justify it as distinct from the effect, specific or inferred, which the delay may have on the accused's defence..."

In the context of the second test, the learned trial judge addressed delay for which the prosecution or other state agencies were blameworthy. Counsel submits that in the instant case there has been no element of such delay and the initial decision not to serve the summonses was borne out of compassion. Counsel submits that the reason for not serving the summonses at the time was reasonable.

Counsel refers to authorities where the courts have on occasion concluded that the delay in advancing a prosecution has been excessive or inordinate but have nevertheless refused to restrain the prosecution in question.

With regard to the interests of the defendants to be protected, referred to in the case of Barker v. Wingo (1972) 407 U.S. 514 and identified by Denham J. at p. 260 of Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 – "(i) to prevent oppressive pre-trial incarceration; (ii) to minimise anxiety and concern of the accused; and (iii) to limit the possibility that the defence will be impaired" counsel submits that the first does not apply and with regard to the second element, the decision not to serve the summons was itself to minimise anxiety and concern of the accused and with regard to the third element it is submitted that no case has been made out of any impairment to the defence of the accused. Counsel refers to the fact that the case will be proved largely on the basis of written records and submits that no case has been made of any impairment of recollection on the part of the accused.

Counsel refers to the limitation period provided for in s. 224 of the Consolidation Act and indicates that this may enable a prosecution many years after the date of the offence in question where the same is not detected at the time. Counsel refers to the case of Director of Public Prosecutions v. Arthurs [2002] 2 I.L.R.M. 363 and refers to the fact that the observations made therein related essentially to a prosecution where the time limit of six months provided for in the Petty Sessions Act, 1851 apply and counsel contrast those circumstances with the circumstances of the instant case.

Conclusions:-

It is to be observed that the case stated herein is largely bereft of detail and no clear explanation for the delay complained of has been given. While the decision not to serve the initial summonses on the accused was, in my view, reasonable having regard to the information given to the gardaí by the accused's husband, there is no indication in the case stated as to how long she remained in hospital and what ultimately resulted in the decision to have fresh summonses issued on the basis of the original complaint. In light of the paucity of information I am not disposed to rule that the delay of itself in this case by its nature and extent is of such a degree as to be excessive and to justify the District Court in dismissing the summonses. It is clear that there has been a considerable delay in the prosecution of the charges against the accused. However, the precise circumstances for same have yet to be ascertained. With regard to the two fold test propounded by O'Neill J. in Director of Public Prosecutions v. Arthurs [2002] 2 I.L.R.M. 363, I am not satisfied on the information before this court that the accused has demonstrated that she has or is likely to suffer any actual specified prejudice or that the length of delay is so inordinate or excessive as to give rise to a necessary inference that there is a real risk that the trial will be unfair.

With regard to the second test addressed by O'Neill J. in that case, I believe that the District Court will have to address it in the light of any explanation that may be given for the delay. The analysis of same must take into account the nature of the charge and the nature of the proofs in the case. I am satisfied that assistance can be gained from the judgment of O'Neill J. and from the authorities cited by him.

With regard to the provisions of s. 224 itself, the same do not appear to have been raised by the case stated itself but have been addressed by counsel and in this regard I will indicate my views in relation to the construction of the section itself.

I am struck by the fact that the section refers to proceedings being "brought" "commenced" and "instituted". I do not consider that the use of these terms in the section is such as to give rise to a clear distinction being drawn between them. I am unable to conclude that the section imports a requirement that the summons in any such case be served as well as applied for within the period in question specified at subs (3)(a) or (b) of the section. It appears to me that the term "brought" in the section is synonymous with the term "commenced". The section envisages that evidence may not be readily available at the time of the commission of an offence to justify the institution of proceedings and it is in this regard that a lengthy period may elapse between the date of the commission of the offence and the date when evidence sufficient to justify a prosecution comes into the possession of the Minister.

In conclusion I believe that the question posed must be answered in the negative. However, as indicated above the District Court judge will have to proceed to examine the issue of delay complained of in light of the authorities referred to in this judgment.