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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Blanchfield v. Hartnett [2002] IESC 41 (16 May 2002) URL: http://www.bailii.org/ie/cases/IESC/2002/41.html Cite as: [2002] 3 IR 207, [2002] IESC 41, [2002] 2 ILRM 435 |
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1. I
have read the judgment to be delivered by Fennelly J in this matter. I agree
entirely with his conclusions, the order he proposes and the reasons set out in
his judgment. I wish to do no more that comment briefly on the decision in
Slattery’s Limited -v- Commissioner of Valuation and Another and His
Honour Judge Liam Devally
(unreported; judgements delivered 13th July 2001) referred to in his judgment.
2. As
Fennelly J points out, the English decision of
Wandsworth
London Borough Council -v- Winder
[1985] AC 461 was held to be distinguishable in
Slattery,
because the body whose determination was being challenged, i.e., the
Commissioner of Valuation, was not a party to the proceedings. Moreover, the
relevant proceedings were not criminal proceedings.
3. There
is a further distinction to which I would wish to draw attention. The
proceedings in
Slattery
were for the recovery of rates. It was laid down in the leading case of
Guardians
of the New Ross Union -v- Byrne
(130 LR (Ir.) 160) that, where premises are occupied by the person rated, no
objection as to excess or exemption can be raised by the rated occupier against
a rate good on its face, save by appeal. It is only where a rate is made in
respect of premises of which the person rated is not the occupier that the
person rated can set up the invalidity of the rate by way of defence.
Accordingly, even if the Commissioner of Valuation had been joined as a
defendant in the proceedings for the recovery of the rates in that case, the
result would have been no different.
4. The
Bankers’ Books Evidence Acts, 1879 to 1989 provide for the admission of
bank records as evidence of their contents in legal proceedings. Section 7 of
the Act of 1979 provides:
6. Other
sections of that Act, as amended, regulate the procedures for proof of entries
in bankers’ books.
7. Orders
under the Acts may be made by the Master of the High Court (Order 63, rule
1(17). There is no equivalent rule for the Circuit Court or the District Court.
8. Until
November 1994, the appellant carried on a financial consultancy business under
the name of Abbey Financial Services in Kilkenny. In the period from November
1994, a large number of complaints were made to the gardaí of financial
irregularities allegedly resulting in significant losses to more than thirty
individuals. The first of these related to a single cheque and was made to
Detective Garda J Seymour in November 1994.
9. On
6th December 1994, the first-named respondent (“the District
Judge”) issued a warrant for the arrest of the Appellant on a charge of
forging a cheque drawn on the Ulster Bank at College Green, Dublin, and payable
to one Edward Walsh. This was done on foot of an information sworn by
Detective Garda J Seymour. On 19th December 1994, the appellant was arrested,
brought before the District Court and charged with the offence of forgery. On
a number of dates between December 1994 and March 1995, the District Judge made
about twenty orders pursuant to Bankers’ Books Evidence Acts, all on the
application of Detective Garda J Seymour, permitting the latter to inspect and
take copies of entries relating to accounts of or relating to the appellant in
a wide number of banks and building societies. The first of these orders was
made on 6th December 1994, the date of issue of the warrant and, thus, before
the appellant was charged. All were entitled as being made in proceedings
between the Director of Public Prosecutions and the appellant.
10. The
appellant appeared initially in the District Court in Kilmainham and then on
29th December 1994 in Kilkenny and the 22nd December 1994 in Waterford, when he
was released on bail. He agreed to attend for interview at Kilkenny Garda
Station on 27th December 1994 and continued to do so until May 1995. From
December 1994 to October 1995, the proceedings, still consisting of the single
charge of forgery, in the District Court were adjourned from month to month, in
the face of objections on behalf of the appellant.
11. During
this period, Detective Garda J Seymour was engaged in an investigation
significantly broader than that related to the single offence of forgery, with
which the appellant had already been charged. The appellant accepts that he
was aware of this. In total, some thirty nine complaints had been made
regarding the appellant’s conduct of his business. The total sums
involved were of the order of one million pounds. Detective Garda J Seymour
reported to the DPP in June 1995, though information and documentation from a
number of bank officials was not yet available. As a result of the directions
of the DPP a large number of additional statements had to be obtained. On 24th
October 1995, the initial single charge of forgery was withdrawn with, it is
said, liberty to re-enter.
12. In
late January or early February 1996, Detective Garda J Seymour was instructed
by the Director of Public Prosecutions to bring further charges against the
appellant. It was necessary, however, for that purpose, to take further
statements from three bank officials, who, in the event, declined to make
statements until they had obtained legal advice. The appellant was not newly
charged until 12th September. Detective Garda J Seymour was in touch with the
appellant in August 1996 when the final drafts of the new charges was being
completed and asked him to present himself at Kilkenny District Court on 3rd
September. The appellant asked that the matter be dealt with in Waterford
rather than Kilkenny. It was agreed that the appellant would appear in
Waterford on 3rd September, but, because of the commitments of the
appellant’s solicitor, this had to be postponed to 12th September. He
was charged on that date with eight offences of fraudulent conversion and
forgery contrary to the Larceny Act 1916 and the Forgery Act, 1913 and the
Book of Evidence was served. The appellant was sent forward for trial to the
Kilkenny Circuit Court. On the same date also, the District Judge made four
further orders under the Bankers Books Evidence Acts. In respect of the period
up to September 1996, Detective Garda J Seymour has sworn that
“given
the complexity of the investigation and the number of statements which had to
be obtained, the matter was pursued with all due expedition.”
13. The
proceedings were transferred to Dublin Circuit Court in April 1997. The
appellant was arraigned in July 1997 and a trial date fixed for November 1997.
Following extensive correspondence in which the appellant’s solicitors
required the production of additional documents a large volume of documents was
furnished in November 1997 and the trial date was adjourned to March 1998. An
order for the production of further documents was made in February 1998. More
than 1,000 pages of additional documents were produced in April 1998. The
trial was again adjourned to July 1998, when difficulty about a witness for the
state led to it being adjourned to October 1998.
14.
On
14th October 1998, the appellant was granted leave by Geoghegan J. in the High
Court to apply for judicial review in the form of the following reliefs:
15. The
reference to 12th December should read 6th December. The grounds can be summed
up as follows so far as the Bankers’ Books Evidence Act orders are
concerned:
16. The
last ground was added by an amending order to the original order granting
leave. The section in question introduces a new section 7A to the
Bankers’ Books Evidence Acts permitting orders to be made to assist the
investigation of whether an indictable offence has been committed, i.e., no
proceeding needs to be in being. However, the respondents have said at all
times that the orders were, in fact, made by virtue of section 7 of the
Bankers’ Books Evidence Act, 1879 only. Thus, though Detective Garda J
Seymour is not a Superintendent, that is not relevant. It is common ground
that there must be a legal proceeding in being to found jurisdiction to make an
order.
17. The
claim for an order of prohibition is based on an allegation of culpable delay
by the prosecuting authorities which
“must be presumed to be prejudicial to”
the appellant.
18. The
judicial review proceedings came before O’Neill J in the High Court. It
was submitted by the appellant and apparently accepted that the Bankers Books
Evidence Act orders could be divided into three categories:
19. The
learned trial judge recorded that Mr Collins, on behalf of the respondents,
accepted that there were no proceedings in being in the District Court until a
charge was laid and that all nineteen orders in the second category were made
without jurisdiction.
20. Mr
Gerard Hogan S.C., on behalf of the appellant argued the grounds mentioned.
Specifically, he argued that the orders were in the nature of orders for
discovery and that the appellant should have been put on notice (
Haughey
and others v Mr Justice Moriarty and others
,
Supreme Court, unreported 28th July 1998). It was necessary for the High Court
to quash the orders. The Circuit Court did not possess a judicial review
jurisdiction and could not exercise one in a criminal trial. Certain cases,
mentioned below, suggesting that the High Court would not quash orders which
were spent were wrongly decided.
21. Mr
Collins’ principal submission was that the orders, having been made and
acted upon, were now spent, that the sole purpose of the application for
judicial review was to secure the exclusion of the evidence of entries from
Bankers Books at the trial of the appellant, that the trial judge would have
jurisdiction to admit that evidence even if the orders were invalid,
furthermore that the trial judge would fully possess any jurisdiction to rule
on the validity of the orders, where necessary for the purpose of the trial.
Accordingly, it would be futile to quash the orders. The High Court should
exercise its discretion to refuse any order of certiorari. He relied on the
two High Court decisions of Hamilton J in
Byrne
v Grey
[1988] IR 31 and
Berkeley
v Edwards
[1988] IR 217 for the proposition that the court should quash orders which were
spent where the sole object was to secure exclusion of evidence at a criminal
trial; he cited
Coughlan
v District Justice Patwell
[1992] ILRM 808 (“
Patwell”)
for the proposition that the Circuit Court would have any necessary
jurisdiction to rule that there was illegality involved in the obtaining of
evidence. Furthermore, the authorities showed that the courts did not favour
the interruption of criminal proceedings for the purpose of facilitating the
taking of judicial review proceedings (
DPP
v Special Criminal Court
[1999] 1 IR 60).
22. In
effect, the learned trial judge accepted the submissions of the respondents.
Firstly, he accepted, on the authority of
Patwell,
that the trial court must respect constitutional rights and that evidence
obtained unlawfully though without infringement of any constitutional right, is
admissible save where the trial judge exercises his discretion to exclude it.
He followed
Byrne
v Grey
and
Berkeley
v Edwards
.
Although those cases concerned search warrants issued by Peace Commissioners,
they were similar to the orders of the District Court involved here. As to the
absence of a judicial review jurisdiction in the Circuit Court, he considered
that the
“trial
judge in a criminal trial has his own exclusive jurisdiction ... [and] it may
well be that he may be asked to try an issue of law for the purpose of
adjudicating on the admissibility of evidence which in other circumstances
would be more usual or appropriate for the judicial review jurisdiction of the
High Court.”
He concluded that the trial judge would have
“ample
jurisdiction to deal with all questions related to the legality of these
orders.”
23. In
the result, the learned trial judge did not determine any of the issues
concerning the validity of the orders.
24. He
also rejected, having regard to the nature of the proceedings, the submission
that there had been any such delay as would prejudice the appellant’s
right to a fair trial.
25. The
appellant, in his notice of appeal, takes issue with the failure of the learned
trial judge to hold that the orders were invalid. More generally, he complains
that he had wrongly followed the two decisions of Hamilton J. in the High Court
and that he had in effect held that the Circuit Court had a judicial review
jurisdiction. The appellant does not contest the conclusion of the learned
trial judge regarding the function of the trial judge at a criminal trial to
protect the constitutional rights of the accused or the fact that evidence
illegally but not unconstitutionally is admissible, subject to the exercise of
the discretion of the trial judge to exclude it. The appellant also challenges
the refusal of the learned trial judge to make an order of prohibition on the
ground of delay. There is a cross appeal only on an issue of costs.
26. The
finding that the appellant did not have an interest in quashing the orders in
advance of his trial because their purpose had been spent was the object of Mr
Hogan’s principal submission. This turned on two propositions: firstly,
that the validity of the orders will or may affect the decision of the trial
judge on whether to admit the evidence (bank entries) obtained as a result of
the order; secondly, that, insofar as it is necessary to rule on the validity
of the Bankers’ Books Evidence Acts orders, the Circuit Court would need
to have a judicial review jurisdiction, which it does not have.
27. Regarding
the first branch, Mr Hogan conceded that the fact of the orders being invalid
would not render inadmissible the evidence obtained. As already noted, there is
no appeal from this part of the High Court judgment. Nonetheless, it is
implicit that the appellant would wish to submit to a trial judge that he was
compelled to draw some conclusions from such a finding of the High Court (in
this case, the Supreme Court). The case of
Barry
v Fitzpatrick
[1996] 1 ILRM mentioned by the trial judge was not, it was contended, relevant.
In that case, the Supreme Court declined to quash remand orders which had been
made by the District Court without jurisdiction, because it held that their
force was spent. Here the prosecution still defends the orders. In Barry, the
real point was that the issue was moot. At the hearing, Mr Hogan cited
McSorley
and another v Governor of Mountjoy Prison
[1997] 2 IR 258. In that case, the Supreme Court declined to make an order for
an inquiry into the detention of the applicant, a person convicted in the
District Court, under Article 40 of the Constitution, where his complaint
related to the irregularities of procedure in the District Court.
O’Flaherty J. pointed out
“that
neither the District Judge nor the Director of Public Prosecutions was given an
opportunity of making a case.”
He also cited
Keating
v Governor of Mountjoy Prison
[1991] 1 IR 61, where this Court rejected a submission that the District Court
should have inquired into the legality of the detention of the applicant
pursuant to section 4 of the Criminal Justice Act, 1994 and released him. The
Court held that the District Court had no such power, that function being
reserved to the High Court pursuant to Article 40 of the Constitution.
28. With
regard to the second branch, Mr Hogan contended that the Circuit Court simply
could not rule on the validity of the orders without being clothed with plenary
judicial review jurisdiction. Any antecedent practice or assumption to the
contrary and any view that the Circuit Court could have a collateral
jurisdiction was, he contended, an aberration. The function of a trial judge
to rule on the admissibility of evidence could not by a
“sort
of forensic magnetism”
vest in the Circuit Court a judicial review jurisdiction it did not have.
DPP v Special Criminal Court
[1999] 1 IR 60 was cited for the proposition that judicial review may lie to
quash rulings made in criminal trials.
29. Mr
Hogan relied on the decision of Geoghegan J in the High Court in
P.P.
v the Director of Public Prosecutions
(unreported 15th October 1999) to support his argument on delay. That was a
case where it was alleged that the accused had committed a number of sexual
assaults in 1977, but no complaint had been made to the gardaí until
1995. Geoghegan J found that the fairness of the applicant’s trial would
not have been prejudiced by that delay alone. However, he was highly critical
of the conduct of the investigation by the gardaí thereafter, describing
it as
“slipshod”
and
“lackadaisical.”
He found it wholly unacceptable, in particular, that they failed to contact
the applicant and interview him. He expressed himself as follows:
30. Mr
Hogan accepted that he could not allege any specific prejudice other than that
his client had had the entire matter
“hanging over him.”
He said, nonetheless, that there was culpable delay by the gardaí and
that, in such a case, he did not have to allege prejudice.
31. The
respondents, in supporting the High Court decision, argued that the overriding
duty of the trial judge at a criminal trial is to ensure that the accused has a
fair trial. It follows that he has power to exclude even admissible evidence,
the key question being whether the interests of justice require that it be
admitted. The trial judge is in the best position to make the necessary
assessments. If the appellant contends that the making of an order of
certiorari will benefit him in his criminal trial, he is in effect saying that
such an order will at the least influence the trial judge. The correct
approach, as appears from cases such as
Clune
v the Director of Public Prosecutions
[1981] ILRM 17, is that the superior courts should presume until the contrary
is demonstrated that the proceedings at a criminal trial will be properly and
fairly conducted.
DPP
v Special Criminal Court
was, contrary to the appellant’s submission an authority for the
proposition that applications for certiorari in the course of a criminal trial
would be entertained only in the most exceptional circumstances.
32. The
learned trial judge was correct, it was said to rule that it would be futile to
quash the orders. The appellant was not entitled to an order ex debito
justitiae (
De
Róiste v Minister for Defence
[2001] 1 IR 190).
33. The
delay in this case could not, by any reasonable standards be considered
inordinate or inexcusable. The appellant has not pointed to any specific item
of prejudice to demonstrate that he cannot have a fair trial.
P.P.
-v- the Director of Public Prosecutions
is easily distinguishable.
34. The
first point to note about the appeal is that the learned trial judge has not
determined whether the orders are valid, even while recording the effective,
and, I think, correct concession by the respondents that the nineteen orders in
the second category were made without jurisdiction. Indeed, it is puzzling
that the same view was not taken regarding the order dated 6th December 1994,
which is described in the judgment as
“ref.
7”
and is in the first category as one admittedly
“relevant
to the Walsh cheque,”
i.e., the first single forgery charge. That may be so, but the order was made
on the date the arrest warrant was issued and before the appellant was charged.
35. The
learned trial judge did not, however, in relation to the first and third
categories rule on any of the grounds of challenge. In the result, this is not
properly a matter before this Court and the Court has been at best partially
addressed on the issues. Nonetheless, the appeal must be approached on the
hypothesis that the invalidity of the orders is likely to be established.
36. The
principal issue is that the making of an order of certiorari would be futile
because the orders are spent. The orders give liberty to the State to inspect
the banking records of an individual, an absolutely necessary power in the
armoury of the legal process. Indeed, the Bankers’ Books Evidence Acts
are as likely to play a role in civil as in criminal proceedings. In the
latter case, orders may function as very important protection for the rights of
either prosecution or defence wishing to produce evidence to a court.
Nonetheless, the holder of a bank account has an interest in the question of
whether his account details are to be produced. The records, it is true,
belong to the bank. However, the account-holder can normally expect the bank
to maintain confidentiality in relation to his affairs. That seems to me to
give him an interest in knowing that orders are properly and regularly made,
even if he has a limited further right to prevent their disclosure. There is
not, however, any question of a constitutional right being involved, nor is
that suggested in this case. In
DPP
v McMahon
[1986] IR 393, this Court ruled that the entry by members of the Garda
Síochána into licensed premises to investigate whether offences
against the Gaming and Lotteries Act, 1956, had been committed did not
“constitute
any invasion or infringement of any constitutional right.”
I do not think the machinery of the Bankers’ Books Evidence Acts is any
different.
37. In
the present case, the appellant wishes to challenge the orders expressly and
solely so as to secure the objective of their exclusion at his trial. Mr Hogan
says, in effect, that he must come first to seek judicial review in the High
Court, because the Circuit Court would not have the requisite jurisdiction to
rule that the orders were invalid before entering on the question of his
discretion.
38. It
seems to me that there are two parts to this argument. The first is whether Mr
Hogan is correct in his argument of principle, namely that no such jurisdiction
resides in the Circuit Court. The second is whether, assuming that the Circuit
Court has such jurisdiction, the High Court should have exercised its
discretion to quash the orders.
39. It
is common ground, of course, that, because the trial judge is under a
fundamental obligation to ensure the fairness of the trial, he has wide powers
to rule on the admissibility of evidence and even, in the exercise of his
discretion to exclude evidence which is, in principle, admissible. However, no
direct authority has been cited on either side casting light on whether the
trial judge has collateral or incidental power to quash or annul decisions or
orders which have facilitated the obtaining of evidence.
40. This
absence of authority may be explained by the comparative modernity of
developments in the law which enabled otherwise relevant and probative evidence
to be ruled inadmissible because of the infirmity of the circumstances in which
it was obtained.
41. There
is, on the other hand a body of law which suggests that there is no rigid
universal rule prohibiting courts from entertaining such arguments. In the
first place, our courts have not taken the view that the modern procedures for
judicial review provide an exclusive remedy for complaints of infringements of
public law rights. (see
O’Donnell
v Dun Laoghaire Corporation
[1991] ILRM 301). Secondly, there is a body of case law in England, even
though in that jurisdiction a stricter view has been taken in that respect (see
O’Reilly
v Mackman
[1983] 2 AC 237), to the effect that a collateral challenge may be made to an
administrative decision at least where it is raised as a matter of defence and
the defendant could not choose his forum. In
Wandsworth
London Borough Council v Winder
[1985] AC 461, the House of Lords decided a civil case which is of some
interest. The council made decisions by resolution increasing rents for local
authority tenants. The defendant disputed the increases and refused to pay.
The council sued him for possession in the County Court. He pleaded by way of
defence that the decisions increasing the rents were made ultra vires. The
council applied to strike out this plea as an abuse of the process of the court
and relied on
O’Reilly
v Mackman
.
The House of Lords held that it was not an abuse for the defendant to raise
such a challenge without resort to judicial review. There is also a line of
cases going back as far as
Kruse
v Johnson
[1898] 2 QB 91 and even beyond to the effect that justices have jurisdiction
to inquire into the validity of bye-laws. These were followed by a Divisional
Court in
R.
v Reading Crown Court
[1988] Q.B. 384. It was there held that the justices should have determined
the validity of bye-laws under which protesters at Greenham Common were charged
with offences. Lloyd L.J. said in that case (page 394):
42. This
line of case law has received approval in this jurisdiction.
Listowel
Urban District Council v McDonagh
[1968] IR 312 arose from a District Court conviction for breach of a local
authority prohibition on public health grounds of the erection of temporary
dwellings. The defendant, at the hearing of his appeal in the Circuit Court,
wished to challenge the validity of the prohibition order on the grounds, inter
alia, of lack of bona fides. The Circuit Court stated a case to the Supreme
Court on the question of his power to entertain this challenge. O’Dalaigh
C.J., with whom Walsh and Fitzgerald JJ agreed, referred to a number of
authorities including
Kruse
v Johnson
and stated at page 318:
43. Both
the Listowel Urban District Council case and the Wandsworth London Borough
Council case were considered in the judgment of Keane C.J. in
Slattery’s
Limited v Commissioner of Valuation and his Honour Judge Liam Devalley
(Unreported 13th July 2001). The Court there held that the District Court, in
the course of hearing a civil claim for the recovery of rates, and, by
extension the Circuit Court on appeal, could not have jurisdiction to set aside
a determination made by the Commissioner of Valuation as to the amount of
remission to which the Applicant was entitled. This was for two reasons:
firstly, those courts had no such jurisdiction; secondly, the Commissioner was
not a party. For the latter reason, the two cited cases were distinguishable.
44. None
of these authorities were opened to the Court in this case. It is not
desirable, for that reason, to pronounce conclusively upon them. It is true
that the
Slattery’s
Limited
case adopts a stricter view, but it was not, of course, a criminal case. Keane
C.J., in the judgment which he has just delivered, has further explained the
special considerations which affect claims for recovery of rates. On any view,
the argument for the appellant is a far-reaching one. It seeks to establish
procedural exclusivity for judicial review even in the case of criminal trials.
It says that the Circuit Court, as a matter of clear principle, could not
consider the validity of the orders. Where it appears that there are
well-established cases in which alternative avenues may be pursued, the Court
cannot close its eyes to their existence. It appears, in reality, that there
are many situations in which courts trying criminal charges may inquire into
the validity of at least some types of orders or decisions which bear on the
criminal proceedings.
45. Comforted
by the existence of the jurisprudence to which I have referred, I can turn to
this case. May the Circuit Court, at the trial of the appellant, pronounce on
the validity of the orders?
46. The
overwhelming responsibility reposed by the law and the constitution on the
trial judge is to ensure the fairness of the trial. An exceptionally important
aspect of this function is to adjudicate on the evidence which should be placed
before the jury. It is, in my view, inherent in that function that the trial
judge be clothed with the power to judge the validity of legal procedures taken
in order to extract, collect or gather evidence.
47. In
the case of evidence, in particular inculpatory statements, gathered while the
accused has been in garda custody, the trial judge will frequently have to
adjudicate on the validity of orders authorising his detention. Analogous
considerations may affect search warrants and other forms of authority for the
invasion of the person or property of a suspect.
48. Where
it is alleged that constitutional rights have been infringed, evidence must be
excluded unless there are extraordinary excusatory circumstances (
People
(Attorney General) v O’Brien
[1965] IR 142.) If a search warrant is authorised by the District Court in
circumstances of knowing and conscious breach of the constitutional rights of
the accused, any evidence gathered on foot of it will, in the absence of the
established exceptional circumstances, be excluded. The trial judge, in such a
case, must necessarily have the power to inquire into and to rule on the
validity of such an order of the District Court. Without that power, he would
be inadequately equipped to exercise his constitutional function.
49. He
clarified the distinction between the powers of the District Court to order the
release of persons in custody, which might infringe the reserved constitutional
function of the High Court under Article 40, and the powers of any trial court
to rule on the admissibility of evidence, stating that where
“an
issue is raised as to the validity of detention in gárda custody of a
person brought before a District Justice, such issue touching, not upon the
admissibility of evidence, but upon the actual validity of detention, the
proper course for the District Justice is, as was done here, to remand the
person concerned, thus enabling him to make such application to the High Court
as he may be advised.”
50. McCarthy
J, in the course of his judgment, cited the judgment of Walsh J in
The
People
(
Attorney
General) v Lynch
,
which contains the following passage:
51. I
see no reason in principle, in the light of these authorities, to deprive
courts of trial of such powers as are inherent in the process of deciding on
the legality of steps taken to enable the prosecuting authorities of the State
to gather evidence for the case. Those authorities exercise a wide range of
powers enabling them to gather evidence. Relevant enabling orders or
decisions may be made, depending on the subject-matter, by judges of the
District Court, Justices of the Peace or Gárda Superintendents. All
orders or decisions of that type directly concern the individual who is or who
later becomes the accused at a criminal trial. I can identify no principle
which should withhold from the trial judge the power to rule, for the purposes
of the trial, on the legality of such measures insofar as may be relevant to
the admissibility or the exercise of discretion to exclude evidence gathered in
the course of such procedures.
52. The
judge, it must be remembered, is charged only with the task of assuring the
fair conduct of a criminal trial. Where, for that purpose, he rules that
evidence is inadmissible because, for example, an invalid search warrant has
permitted it to be found, he makes no order in respect of the search warrant.
His ruling does not prejudge the validity of the act in question in other
proceedings. I would adopt, with necessary adaptation, the reasoning of
Webster J in
Portsmouth
City Council v Quetlynn
[1988] QB 114:
“...although
justices sometimes, for the purpose of the case immediately before them, have
to rule upon the validity of a bye-law or the decision of a local authority,
that ruling is binding in no other case and it could not be suggested that
justices or the Crown Court are a competent authority to strike down any such
decision in the sense of declaring it invalid for all purposes.”
53. Typically
only the State and the accused are directly concerned. Dicta in cases such as
McSorley
are based not so much on the need to protect the individual rights to notice
of the individual State authorities as with establishing that there has been a
true departure from obligatory standards of fairness and justice. In my view,
the learned High Court judge was correct when he said that the trial judge
would have
“ample
jurisdiction to deal with all questions related to the legality of these
orders.”
54. Measures
of a more generally applicable or normative character will usually enjoy a
different status. The trial court should not have to decide issues affecting
the rights of non-parties to the criminal trial. The extreme case is that of a
statute whose constitutionality may only be raised in the High Court.
Intermediate cases will deserve special consideration which does not arise here.
55. It
is sufficient to say that, in a case such as the present, the Circuit Court
would have the power to adjudicate on the validity of the orders made under the
Bankers Books Evidence Acts to the extent that it considers it necessary for
the purpose of ruling on whether to admit evidence.
56. My
reason for treating this issue at such length is to show that it is not
necessary for a party placed as the appellant is to apply by way of judicial
review in advance of his trial to have the relevant orders quashed. The need
for the court of trial to have any jurisdiction appropriate for the disposal of
such problems is underlined by the long-recognised undesirability of
interrupting criminal trials to enable judicial review applications to be made.
O’Dalaigh C.J. said in
The
People (Attorney General) v McGlynn
[1967] IR 232 at p 239:
57. O’Flaherty
J, in the
Director
of Public Prosecutions v Special Criminal Court
cited
this paragraph with approval and continued:
58. Mr.
Hogan, of course, relies on this decision for the proposition that judicial
review is an available remedy which permits challenge to decisions made in the
course of a criminal trial. Clearly, it is available in principle but only in
the most exceptional cases. What emerges, therefore, is that, while decisions
of a court of trial may be the subject of certiorari, this will scarcely ever
occur during the course of the trial. I have already explained my view that
the court of trial has the necessary power in cases concerning discrete orders
affecting the accused, though not necessarily in the cases of measures of a
more general normative character.
59. There
remains the issue of whether the Court should, in this case, in fact quash the
order. I am satisfied that the orders actually affect the appellant. The
fact that they are spent does not affect that conclusion. They were made in
relation to the accounts of the appellant. That gives him, in my view,
sufficient interest to have them quashed. I believe that this conclusion is in
accordance with the views expressed in my judgment in
De
Róiste
.
It follows that the only remaining issue is whether the learned trial judge
correctly exercised his discretion to refuse certiorari.
60. At
this point, it is appropriate to consider the two decisions of Hamilton J in
Berkeley
v Edwards
and
Byrne
v Grey
.
In the first of these cases, the learned judge found support in the statement
of Gannon J. in
The
State (Glover and Mulligan) v District Justice McCarthy
at page 51:
61. I
believe that dictum can be adapted, mutatis mutandis, to a case such as the
present. In
DPP
v Special Criminal Court
,
this Court found justification in the exceptional circumstances of the case for
intervention at the preliminary stage of a criminal trial and where the Court
considered that the decision of the Special Criminal Court was not fair to the
accused. Once the judge at trial possesses any necessary powers and once, as in
Clune,
it must be presumed that he will exercise those powers fairly and justly, there
is no need for the High Court to intervene. It is usually preferable to allow
the trial judge to hear evidence concerning all the elements bearing on the
issue of whether evidence should be admitted than to take one issue such as the
validity of an order to be dealt with in isolation. It should also be borne in
mind that the illegality of such an order is not, in any event, determinative
of the issue of admissibility. Taking the issue out of its proper context may
create a misleading impression as to its impact. I do not accept that the two
decisions of Hamilton J were incorrect. They correctly applied the principles
relevant to the exercise of discretion.
62. I
believe that the learned trial judge acted within the scope of his discretion
on this issue. This is not to say that, in an appropriate case, the court will
not grant judicial review. The objective will always be to find a just solution
to the particular problem.
63. I
also believe that the learned trial judge was correct to reject the
appellant’s claim for an order of prohibition on the ground of delay.
The delay period in the present case was not to any degree comparable with what
occurred in any of the cases in which prohibition has been granted. In
particular, there is no basis for comparing it with the case of
P.P.
v DPP
.
In that case, very many years had elapsed between the dates of the alleged
offences and the making of the first complaint to the gardaí. That has
not occurred in this case. Moreover, Geoghegan J. found in that case that there
had been culpable delay on the part of the gardaí. Although Mr Hogan
alleges culpable delay in the present case, I do not think the complaint is
warranted. The matters being investigated by Detective Garda J Seymour were
not limited to the single matter of the offence of forgery with which the
appellant was charged at the end of 1994. They ranged over complaints made by
more than thirty people and related to transactions put through a number of
financial institutions. Hence, it was essential for the gardaí to have
the co-operation of those institutions. That was not always forthcoming, at
least not immediately. Some of the officials, possibly reasonably from their
point of view, required time to obtain legal advice. In any event, I do not
find the delay which the appellant describes as culpable, particularly from
February to early September 1996 to be either significant or culpable.