Director of Public Prosecutions v Davitt (Approved)

Factual and Procedural Background

The Defendant appeared before the District Court on 28 August 2021 charged with possession of a small quantity of cannabis. The prosecuting officer was a Garda, referred to as Prosecuting Garda. On the return date, the Defendant pleaded not guilty through their solicitor. Neither the Prosecuting Garda nor any solicitor from the Office of the Director of Public Prosecutions (DPP) appeared. Instead, a Sergeant Riley appeared, stating he was instructed by the Prosecuting Garda but was not in a position to proceed with the case, offering only to provide facts if a guilty plea was entered. The Defendant challenged Sergeant Riley's right of audience to prosecute, arguing that the District Court Rules Committee's provision allowing any Garda member to appear was ultra vires the statutory authority, specifically citing section 8(2) of the Garda Síochána Act 2005 which limits prosecution conduct to the prosecuting Garda. The District Court judge referred the question of Sergeant Riley's right of audience to the High Court pursuant to section 52 of the Courts (Supplemental Provisions) Act 1961.

Legal Issues Presented

1. Did Sergeant Riley have a right of audience to prosecute the case against the Defendant?

Arguments of the Parties

Defendant's Arguments

• Section 8(2) of the Garda Síochána Act 2005 confers a right of audience only on the prosecuting Garda who institutes and conducts the prosecution, not on any other Garda member.
• Order 6, rule 1 of the District Court Rules, which permits any Garda member to appear, is ultra vires as it exceeds the statutory authority granted by section 8(2).
• The District Court Rules Committee lacks jurisdiction to create rights of audience that go beyond statutory provisions, as established in State (O'Flaherty) v. O'Floinn and DPP v. McGrath.
• Allowing any Garda member a right of audience would create an unregulated class of advocates, undermining the administration of justice.

State Parties' Arguments

• Sergeant Riley did not seek to present the case but only requested a remand, which was opposed by the defense.
• The phrase "institute and conduct" in section 8(2) should be read disjunctively ("or") to avoid absurdity and to allow delegation within the Gardaí, supporting efficient court procedures.
• The right of audience for non-prosecuting Gardaí has existed since 1948 as part of District Court practice and procedure, regulated by the District Court Rules Committee under section 91 of the Courts of Justice Act 1924.
• The District Court Rules Committee is empowered to regulate practice and procedure, including rights of audience, which do not amount to substantive changes in statutory powers.
• The consultative case stated procedure is not appropriate to determine constitutionality or ultra vires issues; such matters should be resolved by judicial review following a hearing.
• The Defendant’s interpretation would disrupt long-standing summary prosecution practices without clear legislative intent.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by confirming the appropriateness of the consultative case stated procedure to address whether a District Court Rule can be found ultra vires. It rejected the State parties' contention that such findings are limited to judicial review, citing precedent where rules were invalidated via consultative case stated.

The Court examined the history of Garda prosecution rights, noting that prior to the 2005 Act, Gardaí prosecuted as common informers, with only the prosecuting Garda having a right of audience. The right of any Garda member to appear before the District Court was introduced by rules in 1948, without explicit statutory basis.

Interpreting section 8(2) of the Garda Síochána Act 2005, the Court applied the default rule of statutory interpretation, concluding that "institute and conduct" must be read conjunctively, meaning the Garda who institutes the prosecution must also conduct it to have a right of audience. The Court declined to follow the State parties' argument for a disjunctive reading, finding no clear legislative intent to depart from the ordinary meaning of "and".

The Court considered whether rights of audience are merely part of court practice and procedure or part of the administration of justice. Citing Coffey v. Environmental Protection Agency and DPP v. McGrath, it found that rights of audience are integral to the administration of justice and not merely procedural.

Given this significance, the Court held that Order 6, rule 1, which grants any Garda member a right of audience, exceeds the statutory authority granted by section 8(2) and thus constitutes an impermissible amendment rather than a permissible adaptation or modification under section 91 of the Courts of Justice Act 1924.

The Court acknowledged the administrative challenges that may arise from this interpretation but emphasized that efficiency cannot override statutory limits and the integrity of the justice system.

Holding and Implications

Holding: The Court answers the question referred by the District Court judge in the negative: Sergeant Riley did not have a right of audience to prosecute the case against the Defendant.

Implications: The ruling invalidates the District Court Rule that permits any member of An Garda Síochána a right of audience to prosecute cases they have not instituted, affirming that only the prosecuting Garda has such a right under section 8(2) of the Garda Síochána Act 2005. This decision may impact the management and delegation of criminal prosecutions in the District Court, requiring adherence to statutory limits despite potential administrative difficulties. The Court refrained from criticizing the general right of audience afforded to Gardaí but emphasized that any expansion beyond statutory authority must come from the legislature, not the Rules Committee. No new precedent beyond the direct effect on the parties was established.