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Murphy v. Shields
High Court of Ireland
27 Nov, 1998
1. There are in this case some facts in issue and in particular there is controversy as to some of the inferences which the parties say should be drawn from the facts. I am satisfied, however, that there is sufficient common ground as regards essentials so as to enable the matter to be resolved without resort to oral evidence.
2. The Applicant is a veterinary surgeon practising in Co. Tipperary. On 19th day of September, 1997, he attended at Westport District Court to answer various charges under the Road Traffic Acts, including charges of what is properly known as drunken driving and failing to give a blood or urine sample. The matter had been originally listed on July 4th, 1997 but had been adjourned until September 17th, 1997 at Westport District Court.
3. On the latter date the Applicant and his solicitor, Eugene Carey of Courthouse Chambers, Mallow, Co. Cork were both present in Court. On that occasion all charges against the Applicant were withdrawn save that in relation to failing to give a blood or urine sample. There is controversy as to whether the State withdrew the other charges gratuitously or in consideration of an indication that the Applicant would plead guilty to the refusal charge. This is a controversy I do not propose to seek to resolve.
4. When it became necessary for the prosecution to prove the one remaining charge which was being contested they were unable to locate the doctor who was an essential witness for the prosecution. The case was accordingly adjourned for hearing until 21st November, 1997. On this date, the Applicant attended Westport District Court. His solicitor, Mr. Carey, however, on that date was under subpoena by the State to attend Cork Circuit Criminal Court to give evidence on behalf of the prosecution in a case in which a member of An Garda Siochana was being prosecuted on indictment for perjury. Mr. Carey had no option but to obey the subpoena which had been served on him and he accordingly arranged for a colleague to apply for an adjournment of the proceedings before Westport District Court. It is contented that two colleagues in point of fact independently made such an application on his behalf. The proceedings were then adjourned until the 5th day of December, 1997. There is controversy as to the reasons which were advanced to the Court as to why the proceedings were being adjourned on this occasion but this is a conflict I do not propose to resolve.
5. The Applicant and his solicitor proposed to travel to the west of Ireland on 4th December, 1997 for the purpose of attending Westport District Court on 5th December, 1997 and they had rooms reserved in the Great Southern Corrib Hotel in Galway. Hazardous weather conditions set in however and the Applicant and his solicitor decided that it would be unsafe to travel. I am unable on affidavit to resolve who said what to whom and when in relation to the weather conditions prevailing and the necessity for an adjournment but I am prepared to accept that road conditions were hazardous and that the Applicant and in particular his solicitor would have had long distances to travel by road to attend Westport District Court.
6. The Applicant's solicitor arranged for a local solicitor, Mr. James Hanley, to apply for a further adjournment on the grounds of the weather conditions prevailing. The First named Respondent notwithstanding the submissions made to him in respect of the weather conditions and the Applicant's previous history of attendance issued a bench warrant for the Applicant's arrest. No further adjourned date was fixed for the proceedings and they remain floating in the ether until such time as the bench warrant is executed and the Applicant is brought before the District Court in custody. The warrant was issued on the 5th day of December, 1997 and up to the hearing of these proceedings no steps had been taken to execute it. The Applicant who is a professional man remains liable to arrest in a public place or in his surgery indefinitely at any time of the prosecution's choosing and to detention until such time as the First named Respondent might be available to effect his release on bail.
7. The relief sought in these proceedings is stated to be:-
"Certiorari quashing a decision of District Judge Daniel G. Sheilds made on the 5th day of December, 1997 at Westport District Court which directed the issuing of a Bench Warrant against the Applicant herein on the same date and at the same place".
8. The grounds upon which it is sought are stated to be:-
"The Respondent acted ultra vires, unreasonably and without jurisdiction in refusing the adjournment and in issuing the Bench Warrant. The Applicant resides in Carrick-on-Suir and his Solicitor practices in Mallow. Due to the extremely inclement weather prevailing on the evening of the 4th December, 1997 the Solicitor for the Applicant contacted the Gardai at Westport requesting an adjournment. Both the applicant and his Solicitor had intended travelling to Westport via Galway that night. The Applicant's Solicitor had been advised by the Gardai at Limerick, Ennis and Bruff not to travel because of freezing fog and ice".
9. In the course of the argument Counsel for the Applicant agreed that the First named Respondent had jurisdiction to issue the bench warrant. In the light of the judgment of the Supreme Court in Eamon Dunphy -v- His Honour Judge Timothy Crowley , Supreme Court, unreported, Blayney J., 17th February, 1997, it would be difficult for the Applicant to maintain otherwise. At page 14 of the judgment, Blayney J. said:-
"In the instant case, the appellant, having been duly served with the summonses, was under an obligation to attend at the time and place stated in the summonses. His failure to do so amounted to disobedience to the summonses and entitled Judge Crowley, in the exercise of his discretion, to issue the warrant for his arrest.
Barr J. pointed out in his judgment that there were three options open to Judge Crowley:-
1. to adjourn the case;
2. to hear the complaint; or
3. to issue a warrant for the appellant's arrest.
As the appellant's solicitor was not briefed to defend the case, but merely to seek an adjournment, it seems to me that Judge Crowley was absolutely right in deciding not to hear the case, and as he had decided there were no grounds for granting an adjournment, the only option left to him was to issue a warrant for the appellant's arrest as he did. It was a proper exercise of his discretion.
It is hardly necessary to point out that it is unlikely that there will be many occasions on which a District Court judge will think it necessary to order the arrest of a defendant who fails to attend in obedience to the summons. There are two alternative options open to the Court. Firstly, under r.64 subr. (2) of the District Court Rules the judge may proceed to hear and determine the complaint, and secondly, if there are good grounds for adjourning the case, an order to that effect may be made. Most cases where a defendant does not attend will normally fall to be dealt with in either of these two ways. But if the Court, in the exercise of its discretion, considers that a warrant should issue for the arrest of the defendant, there is clear jurisdiction under r.40 to make such an order."
10. It is submitted on behalf of the Respondents that in all the circumstances of the case not only did the First named Respondent have jurisdiction to issue the bench warrant but that in doing so he did not act unreasonably but acted within his jurisdiction and exercised his discretion correctly. I am prepared to accept this but I do not regard that as the end of the matter. The warrant was issued on December, 5th 1997 and was directed to the Superintendent of An Garda Siochana at Westport. It commanded him to arrest the Defendant and bring him before the First named Respondent to be dealt with according to law. This was not done and the warrant reposes I know not where capable of being given effect to at any time subject to renewal. I have no reason to believe that the Applicant, as a veterinary surgeon, practising in Carrick-on-Suir, Co. Tipperary has not been amenable to legal process since December 5th, 1997.
In Dunne -v- Director of Public Prosecutions , 1995 No. 22 J.R. unreported, judgment delivered the 6th day of June, 1996 I endeavour to eliminate the garda practice of consigning warrants to the station biscuit tin. Having noted the submission of Ms. Adrienne Egan, Counsel for the Director of Public Prosecutions that upon the issuing of the warrant "the State is not bound to conduct a national manhunt", I went on to say:-
"A warrant of apprehension is a command issued to the Gardai by a Court established under the Constitution to bring a named person before that Court to be dealt with according to law. It is not a document which merely vests a discretion in the guards to apprehend the person named in it; it is a command to arrest that person immediately and bring him or her before the court which issued it. That it is a command to arrest rather than merely an authority or permission to arrest can be clearly seen from the terms of the warrant in the instant case. Addressing the Superintendent of An Garda Siochana at Crumlin Garda Station it says:-
'THIS IS TO COMMAND YOU to whom this warrant is addressed to arrest the said Shane Dunne of 26 Rutland Avenue, Dublin 12 and to bring him without any delay before me or another Justice or Peace Commissioner to be dealt with according to law'.
11. The reference of the Peace Commissioner may be disregarded having regard to developments in Constitutional Law.
12. Under the District Court Rules, a warrant of apprehension upon being issued by a judge of the District Court is directed by him to a Garda Superintendent or Inspector who acts for the place where the warrant is issued. The officer to whom it is issued may delegate its execution to another member of An Garda Siochana. I have on more than one occasion formed the view that the guards do not have a full appreciation of the mandatory duty they are under to execute warrants and a full appreciation that warrants are commands to arrest and not merely authorities to arrest. It has seemed to me from time to time that the guards have sat on a warrant and waited for the wanted person to gratuitously fall into their laps by, for example, being arrested in relation to a further crime rather than taking any active steps to find him.
13. I am not alone in concluding that the execution of warrants can be casual. Dealing with warrants of committal as distinct from warrants of apprehension, Barron J. in The State (Flynn) -v- The Governor of Mountjoy Prison , unreported judgement delivered the 6th day of May, 1987 said:-
'The present issue arises by reason of the system employed by the Garda authorities for the execution of such warrants. When issued, such warrants are sent to the Superintendent of the district in which the Defendant resides. A guard then executes the warrant wherever the Defendant may be found. There is no time scale involved and it is obvious that the particular guard concerned acts on the warrant when he has time. If the Defendant cannot be found and there is no reason to suppose that he will be found in any other Garda district, the warrant is placed in the warrants cupboard where it remains. If further information becomes available, then such information will be acted upon. If there is reason to suppose that the Defendant might be residing in a different Garda district, the warrant will be sent to the Superintendent of that district where it will be treated in the same way.
Not only does the execution of the warrant appear not to be a matter of any urgency, but when it becomes apparent that a Defendant is not to be found at the address which he has given, there is no evidence of any effort being made to trace his whereabouts by any means at all'.
14. Later in the same judgment Barron J. said:-
'I have no doubt that if there had been any real effort made to find the Defendant he would have been found and the warrant executed.'
15. Members of An Garda Siochana to whom a warrant is issued for execution must be accountable to the Court which issued the warrant for its prompt execution and in default of a prisoner being expeditiously produced, have an explanation for his non-production and furnish an explanation of what steps were taken to bring about his apprehension.
16. Having said that I accept Miss Egan's submission that the issuing of a warrant need not trigger a national manhunt. In the instant case, there was no prejudice to the Applicant by any delay which took place. Having regard to the evidence that:-
(a) A search was carried out for him on two occasions in the presence of his father; and
(b) that he was as is admitted in his affidavit in touch with family litigation which was taking place in the Judicial Review list before me.
17. I am entitled to draw the inference that he chose to lie low. The only person entitled to be aggrieved by delay in the execution of the warrant was Judge James Paul McDonnell whose command had not been given effect to.
18. Having regard to the misrepresentations made by the Applicant's father, the steps taken by D/Garda Minnock to execute the warrant were in all the circumstances reasonable and adequate. The community would not be well served if a disproportionate amount of D Garda Minnock's time were devoted to the Applicant and the game of ducks and drakes he and his father were playing to the detriment of other police work.
19. In the future there will, no doubt, be in place a computerised system whereby the Applicant's appearance in Court would automatically trigger the activation of any warrant outstanding against him. The fact that such a system is not yet in place does not violate any of the Applicant's constitutional or legal rights."
20. In the instant case, there is no justification such as the Applicant having lain low or left the jurisdiction for the non execution of the warrant. An affidavit filed by the relevant District Court Clerk would seem to indicate that in this case the warrant languished in the District Judge's Chambers rather than in the station biscuit tin. I do not accept the distinction the District Court Clerk seeks to draw between a warrant being "issued" and being "formally issued". There remains a threat to the Applicant that it might well at any time now or in the distant future following a simple renewal process be executed in an arbitrary or capricious manner. Even though such eventuality may be more theoretical than real the Applicant is entitled to his peace of mind and I direct that the warrant be quashed by Order of Certiorari. I will give this direction not as sought by the Applicant by reason of its issue but by reason of its continued existence a year later. I do this in exercise of my general supervisory jurisdiction.
© 1998 Irish High Court
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