The purpose of the 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. There seems to be a widespread misconception as to the purpose of the Bill. It seems to be believed that it has to do with legalising computerisation in District Court offices. That is not so. What the Bill seeks to do as its primary purpose is to legalise the issue of summonses by District Court clerks and the method by which they do so is secondary, if not irrelevant. I will explain that when I come to deal with the different court judgments which form the background to this particular case. The background to the problem is as follows. 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.
(3) the institution of proceedings on foot of a complaint which had been received.
The court accepted that under the 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. In the computerised system for issuing summones this was not in fact being done. 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. It is understandable that when dealing with summonses in this way personal attention was just not practicable and the inevitable effect of the High Court judgment was to invalidate the existing procedures. Two steps were immediately taken, firstly, arrangements were made to appeal the judgment to the Supreme Court and, secondly, the procedures for the issue of summones by computer were changed to the extent that the District Court clerk would consider each complaint before a summons was issued.
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 procedures was not valid. The judgment, however, did much more than that. As I have already indicated, the issue now no longer has anything to do with computerisation and it seems to me that there is still a serious public misconception that it has. The issue is not what procedures a District Court clerk can, or cannot, adopt in serving summonses but whether a clerk can issue a summons at all. The judgment raises 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 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 judgment 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.
As it happens the legal aspect of computerisation had already been under examination and my Department had for some time been working on proposals which would adapt procedures to bring them more into line with modern conditions. This examination is 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. Perhaps I should point out that, contrary to what has been suggested in another place the words "as a matter of administrative procedure" in the Bill are a quite deliberate repeat of those used in the judgment and are intended to re-echo the view expressed by the Supreme Court that the statutory provisions of the 1851 Act which, it held, make the issue of a summons a judicial matter can be replaced by other statutory provisions making it an administrative function without any fear of constitutional challenge. 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.
There is an obvious difficulty in regard to summonses which have already been issued but upon which there has not yet been a judicial determination. It is important that the offences involved in them should be dealt with by the courts. The Bill proposes, therefore, that the complaints which gave rise to the issue of these 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 the intention would be to reissue summonses in those outstanding cases.
Perhaps I should refer here to fears which have been expressed as to the dangers inherent in trying to bring to justice persons who might appear to have escaped jeopardy. It has already been recognised that there is no question here of retrospective legislation in the constitutional sense in that nothing is being made a criminal offence which was not one at the passing of the Act. Moreover, and I do not think that this was fully appreciated, the Bill does not seek to validate old summonses which may have been issued out of date, that is, where the complaint was made outside the relevant limitation period. It is a strictly limited provision applying only to summonses which would — apart from the defect in the law which this Bill seeks to remedy — have otherwise been perfectly legal. It will, I must add, operate for a strictly limited period.
The mechanism which is being adopted in subsection (7) (b) of section 1 of the Bill is to enable — within the 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. While this will naturally give rise to some administrative inconvenience, it is, I am assured, technically feasible. 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. Suitable administrative arrangements are being made for the issue of these summonses in the District Court offices. The number of summonses likely to be affected is up to 150,000 in Dublin and 100,000 in the provinces.
Finally, the Bill proposes to preserve the provision of existing legislation for use in non-routine cases. This means that, in appropriate cases, for example, charge sheet cases and cases where private individuals wish to take out summonses, the provisions in the 1851 Act may continue to be used. Where they are, it is the intention that the summonses will be issued by District Justices only.
I should like to express my appreciation of the way in which the Seanad has at the end of a most busy schedule agreed to take the Bill. The House is being asked to deal at short notice with intricate matters which are important in the area of criminal justice. That is not a matter of my choosing. I should like to repeat what I have said elsewhere about the timing of the Bill. It is unrealistic to expect that as a product of our efforts to bring court procedures into the 20th century I — or indeed any other Minister for Justice — could reasonably have foreseen that the role of the court clerks would be found to be invalid. After all, an Act of the Oireachtas of 1926 purported to authorise functions to be given to the clerks by way of rules of court and the 1948 rules of the District Court purported specifically to give them the very functions in question but we have to deal with the situation as we find it now. The purpose of the Bill is to do that as quickly as possible and I commend it to the House.
