The Supreme Court has agreed to hear an appeal from the Director of Public Prosecutions (DPP) against a ruling that dealt with a garda’s right of audience before the District Court.
A High Court decision in May overturned a District Court rule that allowed a Garda officer who was not directly involved in a case to present the facts to the court in the event of a guilty plea.
Ms Justice Marguerite Bolger ruled that the Garda Síochána Act 2005 confers a right of audience before the court only to the garda who initiated the prosecution. The strike-down of the long-standing practice led to fears that thousands of criminal prosecutions could be held up in the District Court.
In June, the Cabinet approved the Garda Síochána (Amendment) Act 2022, which provided for a continued legal basis for Garda court presenters in District Court prosecutions.
The legal issues arose in a prosecution in August 2021 of a man who denied a charge of having a small quantity of cannabis. The prosecuting garda was not present when the case returned to court, but another sergeant said he could provide facts to the court in the event of a guilty plea.
The man sought to challenge the sergeant’s ability to do so and argued there was no appearance on behalf of the prosecution on that date and, consequently, the matter should be struck out.
District Judge Miriam Walsh referred the matter to the High Court via a “case stated procedure”, which allows a point of law to be determined by another court.
In appealing the High Court’s findings to the Supreme Court, the DPP argued that, despite the new legislation, an order of the District Court Rules is now vulnerable to challenge for cases that are not criminal in nature and for non-garda groups who might appear in the District Court.
She also submitted that the case raises questions about whether it was appropriate for the District Court judge to refer the issues via a case stated procedure and whether there are limitations on this mechanism.
The DPP said there is now conflicting legal theory on whether secondary legislation or rules, including District Court Rules, can be quashed or held to be beyond their powers by invoking the case stated procedure.
The Attorney General indicated his support for the DPP’s appeal application.
The man charged with possession argued that the matters have become irrelevant due to the new legislation.
A three-judge Supreme Court panel, comprising Ms Justice Elizabeth Dunne, Ms Justice Marie Baker and Mr Justice Brian Murray, said the case raises important issues. These included whether the consultative case stated procedure is subject to a limitation in the way suggested by the DPP.
The judges also said issues regarding the right of audience before the court and the interpretation of the provisions of the 2005 Act were important matters.
It is “not clear cut at this stage” that the proceedings are moot, the court said.
