1986 No. 530 S.S

IN THE MATTER OF AN APPLICATION FOR CERTIORARI AND MANDAMUS  AND IN THE MATTER OF THE CRIMINAL PROCEDURE ACT 1967 

AND

IN THE MATTER OF A PROSECUTION ENTITLED DIRECTOR OF PUBLIC  PROSECUTIONS AT THE SUIT OF BRIAN REDMOND COMPLAINANT AND  CONCEPTA DREW DEFENDANT

BETWEEN

THE STATE
AT THE PROSECUTION OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

DISTRICT JUSTICE JARLATH RUANE

RESPONDENT

Judgment of Mr. Justice Blayney delivered the 6th day of
February, 1987.

Concepta Drew, the Defendant in the Prosecution referred to in the title, was arrested by Garda Brian Redmond at Dunnes Stores in the Ilac Centre on Saturday the 5th July 1986  at 6.15 p.m.  She was brought to Store Street Garda Station and charged with the larceny of a child's jumper.  After being charged she was released on station bail on her own recognisance of £30-00 to appear before the District Court on the morning of Monday the 7th July 1986.  The Defendant had been arrested without any warrant having been issued.
The Defendant duly appeared before the Respondent in the	District Court on the morning of Monday the 7th July 1986.
 
Garda Redmond gave evidence of having arrested and charged  the Defendant and of the fact that the Defendant had been  released on station bail.  He also stated in evidence that the Defendant wished to plead guilty to the charge.

Mr. Frank Keane, Assistant State Solicitor, appeared on  behalf of the State.  As soon as the learned Respondent heard that it was a station bail case, he stated that he was going P        to strike out the charges.  Mr. Keane submitted that there had been a due appearance at the appropriate time and place in accordance with Section 31 of the Criminal Procedure Act 1967  but the learned Respondent replied that Section 26, subsection (2) of the Courts of Justice Acts 1984 could not be got around.

Mr. Keane then referred the learned Respondent to the decision of the Supreme Court in The State (Lynch)  .v.  District Justice Ballagh and submitted that the appearance of the Defendant cured any defect that there might have been arising from the station bail.  The learned Respondent stated that such was the position in regard to summary charges only, and that this was not such a charge, and he struck out the two charges before the Court, the first being a charge of larceny, and the second a charge of receiving.

In these circumstances the Director of Public Prosecutions, on the 28th day of July 1986, obtained a Conditional Order of Certiorari in respect of the Order of the learned Respondent dated the 14th day of July 1986, and also a Conditional Order of Mandamus directing the learned Respondent to hear and determine the charges brought against the Defendant.

The learned Respondent has shown cause by a Notice dated the 17th November 1986.  Two main grounds are relied upon: firstly, that Concepta Drew was not, immediately after her arrest, brought before a District Justice or a Peace Commissioner as required by Section 15 subsection (2) of the Criminal Justice Act 1951 (as inserted by Section 26 of the Criminal Justice Act 1984), and secondly, that the same Section 15 (2) of the Criminal Justice Act 1951 altered the practice regarding station bail as provided by Section 31, subsection (1) of the Criminal Procedure Act 1967 and placed a person arrested without warrant in the same position as a person arrested with a warrant.  It is claimed that on these grounds the Defendant's presence in the District Court on the 7th July 1986 was tainted with illegality.

In order to consider properly the grounds raised by the learned Respondent, it is necessary to trace briefly the history of station bail. The first Act in which it appears after the founding of the State is the Criminal Justice Act 1951.  But it had been available before that in the Dublin area for summary offences under Section 33 of the Dublin Police Act 1842.  The relevant Section in the 1951 Act is Section 14 (1) which provided as follows:
"Whenever a person is brought in custody to a Garda Siochana station by a member of the Garda Siochana, the sergeant or other member in charge of the station may, if he considers  it prudent to do so and no warrant directing the detention of that person is in force, release him on bail and for that purpose take from him a recognisance, with or without sureties, for his due appearance before the District Court at the appropriate time and place."

In the Attorney General v. Burke 1955 IR page 30, Davitt P. held that the section applied only to persons arrested without a warrant and his decision on this point was referred to by Henchy J. (with apparent approval) in his Judgment in The State (Lynch)  .v.  District Justice Ballagh (unreported 13th May 1986).

Section 14 of the 1951 Act was repealed by Section 3 of the Criminal Procedure Act 1967 but subsection (1)of Section 14 was re-enacted  unaltered as subsection(1) of Section 31 of the 1967 Act, and has ..never been repealed. So prima facia where a person        has been arrested without a warrant, he may be admitted to station bail in accordance with the provisions of that subsection.

But this apparent position is challenged by the learned Respondent, and this is what has given rise to the present case.

The basis on which it is challenged is the new Section 15 of the Criminal Justice Act 1951 enacted by Section 26 of the Criminal Justice Act 1984.  Subsections(1)and (2)of the new section substituted for the old Section 15 provide as follows:

"(1) A person arrested pursuant to a warrant shall on arrest be brought before a justice of the District Court having jurisdiction to deal with the offence concerned or, if a justice is not immediately available, before a peace commissioner in the district of such a justice as soon as practicable.
(2) A person arrested without  warrant shall, on being charged with an offence, be brought before a justice of the District Court having jurisdiction to deal with the offence or, if a justice is not immediately available, before a peace commissioner in the district of such a justice as soon as practicable."

Mr.  O'Reilly, acting on behalf of the learned Respondent, submitted that there is a clear conflict on its face between the new subsection(2)and Section 31 subsection (1) of the 1967 Act.
 
The new subsection (2)of Section 15 is mandatory and requires that a person arrested without a warrant shall on being charged with  an offence be brought before a District Justice or, if one is not immediately available, before a Peace Commissioner as soon as practicable.  Section 31 (1) on the other hand entitles the Sergeant or other member in charge of a station to release such a person on bail having taken a recognisance for his due appearance before the District Court at the appropriate time and place.  If station bail is given, clearly the requirement of the new subsection (2) cannot be complied with.  Similarly, if the new subsection (2) is complied with, station bail cannot be given. Mr. O'Reilly submits that the two provisions are inconsistent "1 and that in these circumstances the later in time must prevail, and the effect is that the right to station bail is impliedly repealed insofar as it is inconsistent with the later provision in time.

There is undoubtedly difficulty in reconciling the two provisions but in my opinion it is the duty of the Court to attempt to do so.  I consider that the following passage from Maxwell on the Interpretation of Statutes (12th Edition 1976) correctly  states the principles of law to be applied (page 191 ):

"A later statute may repeal an earlier one either expressly or by implication.  But repeal by implication is not favoured by the courts.  "Forasmuch,” said Coke, "as Acts of Parliaments are established with such gravity, wisdom and universal consent of the whole realm, for the advancement of the common wealth, they ought not by any constrained construction out of the general and ambiguous words of a subsequent Act,  to be abrogated."  If, therefore, earlier and later statutes can reasonably be construed in such a  way that both can be given effect to, this must be done."
 
In attempting to reconcile the two provisions I find valuable guidance in the Judgments of the Supreme Court in (The State (Lynch) .v. District Justice Ballagh to which I referred earlier.  In that case a youth of 17 was arrested at 11.45 p.m. on Friday the 1st March 1985, having been involved that night in a joy-riding escapade.  He was brought to Coolock Garda Station and charged with an offence	under Section 112 of the Road Traffic Act 1963, as amended.

The Station Sergeant granted him bail pursuant to Section 31subsection (1) of the Criminal Procedure Act 1967, the condition of the recognisance being that he would appear before District Court No. 4 at Chancery Street Dublin on Wednesday the 6th March 	1985.  The accused appeared on that day, but his Solicitor p	raised the point that the District Justice had no jurisdiction to deal with the case as the accused was unlawfully before the Court.  The basis of this submission was that the District Court (Criminal Procedure Act 1967) Rules 1985, under which bail had been granted, were made in excess of the powers of the District Court Rules Committee.  The Supreme Court held
that this was so but that as the accused had appeared before the Court, this had given the District Justice jurisdiction to deal with the offence.

None of the Judgments refers to there being any inconsistency between the giving of station bail and the obligation to bring the arrested person before a District Justice or a Peace Commissioner, and none of them treats Section 31 subsection (1) of the 1967 Act as having been affected by the new Section 15 of the 1951 Act, which section was analysed in detail by Mr. Justice Walsh.  At page 11 of his Judgment, Mr. Justice Walsh
stated:

"The powers of the Garda Siochana in respect of what may be called "station bail" and the regulation of them       " are contained only in Section 31 of the Criminal Procedure Act 1967."

And Henchy J., said in his Judgment at page 3, "Where a person has been arrested and brought to a Garda Station, bail, if granted is usually granted later when he is brought before either a Peace Commissioner or a District Justice and charged with an offence. However, station bail (i.e.  bail granted by the Police in the Garda Station in question) is also an option."

Even though no argument may have been addressed to the Supreme Court on the point at issue here, nonetheless  if the Court had taken the view that station bail had been impliedly  repealed by the new Section 15 contained in the 1984 Act, some evidence of this would have been found in their Judgment  and there is none. Obviously the point has not been decided by the Court, and remains open should it ever come before them again, but the obiter dicta to which I have referred are to my mind an indication that the Court did not consider that the two apparently inconsistent provisions are  irreconcilable.  So what has to be done is to see how they can be reconciled so that effect can be given to both.

It seems to me that the solution becomes apparent if one looks at the problem from the point of view of the person who has been arrested and brought to a Garda Station.  The      Sergeant has a discretion to grant him bail.  If he exercises that discretion, the accused ceases to be in custody.  If he does not, the accused remains  in custody and must be brought before a District Justice or a Peace Commissioner in accordance with the new Section  15 subsection (2). Where an accused is in custody, the subsection confers  on him a valuable statutory right, which always existed at common law, to be brought before a Magistrate with all reasonable speed.  But where an accused is no longer in custody, because he has been released on station bail, he has no need any more of the right given by the subsection.  Being at liberty, the right given by the subsection is superfluous.

In the light of these considerations, it seems to me that it is reasonable to construe the new Section 15 subsection (2) as applying only where the person who has been arrested is kept in custody by reason of station bail not being granted.  In such circumstances the provisions of the subsection must be strictly complied with but where the	Sergeant, or other member of the Garda Siochana, in exercise of his discretion, grants station bail, then the accused ceases to be in custody, and the subsection does not require to be complied with.

This construction fully protects the rights of the accused. He is either set at liberty by being granted station bail, or he is brought with all reasonable speed before a District
Justice or a Peace Commissioner. And it enables full effect	to be given to both of the provisions. And finally, because it fully protects the rights of the accused, it is in my opinion eminently reasonable.

All that remains to be considered is the appropriate Order to be made in the light of the conclusions I have reached.

While I consider that the learned Respondent was wrong in striking out the charges against the Defendant., nonetheless the Order he made was within his jurisdiction and so should not be quashed.  I will accordingly refuse to make absolute the Order of Certiorari.

But as in my opinion the learned Respondent ought to have heard the charges against the Defendant, I will make absolute the Order of Mandamus commanding him to hear and determine them, and to have the charges re-entered before him for that purpose.