I move:
"That the Bill be now read a Second Time."
The purpose of this Bill is to deal with the situation which arises following on the Supreme Court judgment of 12 December 1986 about the legality of the way in which District Court summonses are at present issued.
Many statements have been made during the past week about the background to this problem and I would like, first of all, to place the sequence of events on record.
On 20 March last the High Court gave its judgment in the case of Clarke v. Roche on the issue of the validity of a summons issued to a Mr. Peter Senezio. The High Court identified three distinct steps required under the relevant statute, section 10 of the Petty Sessions (Ireland) Act, 1851. These steps were: (1) the making of a complaint to a person authorised to receive it; (2) the receipt of such complaint by such person and (3) the institution of proceedings on foot of a complaint which had been received.
The court accepted that under Statute and Rules of Court a complaint could be received by a District Court clerk and that a summons could be issued by the clerk on the basis of that complaint. The court added, however, that unless it could be shown that the District Court clerk himself personally considered a complaint any summons which might be issued on foot of it would be invalid.
The computerisation of the issue of summonses in the Dublin Metropolitan District Court area commenced in 1982. The volume of summonses issued by computer quickly grew to some 500,000 by 1985. The procedures for the automatic issue of summonses by computer did not include personal consideration of every complaint by a District Court clerk. In the circumstances it was quite clear that the effect of the High Court judgment was to invalidate these procedures. Two steps were immediately taken, they were: (1) arrangements were made to appeal the judgment to the Supreme Court and (2) the procedures for the issue of summonses by computer were changed to the extent that the District Court clerk would consider each complaint before a summons was issued. Put quite simply, appropriate and adequate steps were taken at the time to deal with the effects of the High Court judgment including, I should like to emphasise, appropriate steps to validate the issue of summonses by computer.
The Supreme Court gave its decision on the appeal in its judgment of 12 December 1986. It upheld the decision of the High Court that service of a summons under the old procedure was not valid. The judgement, however, introduced a new element, the effect of which was to raise a question about the validity of the issue of summonses even under the new procedures introduced after the High Court judgment of March 1986. The Supreme Court said that it was "satisfied that on the terms of section 10 of the 1851 Act it is an inescapable conclusion that the issue of a summons upon the making of a complaint was a judicial act as distinct from an administrative one". This interpretation meant that there was a serious question as to whether any District Court clerk could issue a summons legally at all within the provisions of the 1851 Act.
However, the judgement went on to say that "the difficulties arising from the desirability to avail, if at all possible, of modern and technical equipment and procedures in order to facilitate the issuing of District Court summonses may not be as great, from a legal point of view, as might originally appear" and that there was "much to be said for the point of view that with regard to summary summonses issued in criminal cases by members of the Garda Síochána, at least, it is no longer necessary nor appropriate for a justice of the District Court or any other person to reach a judicial determination as to whether the summons should be issued". The court then said that consideration should be given to replacing sections 10 and 11 of the 1851 Act with statutory provisions more suitable to the modern District Court which could include the procedure for the issuing of summonses, in criminal cases at least, as being an administrative procedure only.
At this point I would like to refer to the statements I made about these developments since last weekend because I am satisfied that misunderstandings have arisen in that regard. I first referred to the accusation made against me that my Department had done nothing after the High Court judgment last March to comply with the decision of that court and as a consequence had placed all summonses issued since then in jeopardy. This was not the case since, as I have already indicated, my Department immediately took steps to correct the defects in the issue of summonses which the High Court had identified.
The Supreme Court upheld the decision of the High Court. If the Supreme Court decision did no more than that it would not have created any great difficulty since the steps I had mentioned had already been taken to comply with the High Court judgment. The Supreme Court, however, went on to say, obiter, that in its opinion the issue of a summons under the 1851 legislation was a judicial act and therefore cast doubts on the competence of a District Court clerk to issue a summons at all. The Supreme Court statement did not, of itself, invalidate what had been done. What it did was give a clear indication that if the validity of a summons were challenged on the grounds that a District Court clerk was not legally competent to issue a summons on the basis that under the 1851 Act this is a judicial act, the challenge was likely to succeed. I reject any suggestion that this was an eventuality which we should have envisaged. In the event, I made it clear that the implications of that judgment were being studied and that if urgent legislation were needed I would sponsor it. It soon became clear that such a course was, indeed, indicated and subsequently I informed the House that I would be introducing legislation this week.
My Department have for some time been working on proposals which would adapt procedures to bring them more into line with modern conditions. These proposals are not, however, at a stage where it is possible to put forward final proposals in the form of a Bill for the approval of the Government. In the meantime, the Supreme Court decision presents an immediate problem which must be resolved if the course of justice is not to be frustrated. The Bill before the House is an urgent but minimum response to that problem.
The Bill proposes that proceedings in the District Court in respect of an offence may be commenced by the issuing, as a matter of administrative procedure, of a document, to be referred to as a summons, by the appropriate office of the District Court. This provision follows the line suggested in the judgment of the Supreme Court. This summons will be sought not by way of "complaint" but by way of an application in the ordinary sense of the word.
The Bill goes on to indicate the form a summons will take and how it will be processed in the District Court office. It also identifies those who may apply for the issue of a summons.
Normally provisions of this kind would apply only from the date of passing of the Bill. There is, however, an obvious difficulty in regard to summonses which have already been issued but upon which there has not yet been a judicial determination. The Bill proposes that the complaints which gave rise to the issue of those summonses since the date of the High Court judgment in March last will be treated as applications for the issue of summonses and in this way enable them to be dealt with under the general provisions of the Bill. On the passing of the Bill, therefore, the intention would be to reissue summonses in those outstanding cases.
The mechanism which is being adopted in subsection (7) (b) of section 1 of the Bill to achieve this is to enable — within the limited period up to 20 March next — new summonses to be issued by the District Court offices in cases where previously issued summonses are now regarded as invalid but which were otherwise properly issued. When read with subsection (7) (a) this will mean that once the old summons was issued within the appropriate period of limitation the new summons will derive its validity as regards time from that fact. This, while it will naturally give rise to some administrative inconvenience, is, I am assured, technically feasible. The number of cases involved in the Dublin Metropolitan area is about 150,000. The Supreme Court judgment also cast doubts on the competence of a peace commissioner to issue a valid summons for the same reasons as in the case of District Court clerks. The Bill proposes that summonses already issued in the name of peace commissioners and which have not yet been judicially determined will also be dealt with by the issue of new summonses under the provisions of the Bill. However, the question of amending the law as regards the ongoing issue of summonses by peace commissioners, for which the Supreme Court did not offer suggestions, will have to await consideration in the context of the more thorough review of the law. In the meantime suitable administrative arrangements are being made for the issue of these summonses in District Court offices.
The Bill, finally, proposes to preserve the provisions of existing legislation for use in non-routine cases. This means that, in appropriate cases, the provisions in the 1851 Act may continue to be used. Where they are it is the intention, of course, that the summonses will be issued by district justices only. This is what happens at present in the context of charge-sheet procedures.
I might at this point record my appreciation to the various officials in my own Department, in the Attorney General's office, in the DPP's office and in the draughtsman's office who have put together with great care and very considerable expedition the Bill which is before the House. The purpose of the Bill is to facilitate the course of justice and preserve the rule of law. For the reasons I have stated the Bill is urgent and I commend it to the House.
