THE HIGH COURT
JUDICIAL REVIEW
		1994 No. 33
BETWEEN
THE MINISTER FOR AGRICULTURE FOOD AND FORESTRY
		APPLICANT
AND
DISTRICT JUDGE FLAN BRENNAN
		RESPONDENT
AND
AIDAN MC COOEY
		NOTICE PARTY

Judgment of Ms. Justice Carroll delivered the 11th day of July, 1997.

	This is an application for an Order of Mandamus by way of Judicial Review directing the Respondent to hear and determine four charges against the Notice Party.  These were that on the 18th December, 1992 he had in his possession prohibited veterinary medicines without product authorisation under the European Communities (Veterinary Medicinal Products) Regulations, 1986 (S.I. 22 of 1986) contrary to Regulation 13(2) of the European Communities (Control Veterinary Medicinal Products and their Residues) Regulations 1988 and 1990 (S.I. 218 of 1988 and S.I. 171 of 1990).  They are more particularly set out in the Order of the High Court granting leave to apply for Judicial Review dated the 31st January, 1994.
	The grounds on which the relief is sought is that the Respondent wrongfully declined jurisdiction to hear and determine the charges against the Notice Party in respect of which he had been summoned and wrongfully struck out the charges on the basis that he did not have jurisdiction.
	There is conflict between the Affidavits of Peter Charlton and Enda P. O'Carroll (on behalf of the Applicant) and Michele Flanagan (on behalf of the Notice Party) as to what exactly were the submissions made before the Respondent.  There was no cross-examination of any of the deponents.  
	Basically what happened was that at the outset of the hearing an objection was raised by Counsel for the Notice Party that the Respondent did not have jurisdiction on the basis that Johnson J. held on the 1st April, 1993 in the case of Meagher -v- Minister for Agriculture (1991 1 I.R. 329) that the entire of the Regulations of 1988 and 1990 referred to in the summonses were ultra vires and void.  
	According to the Statement in Opposition the decision of the Respondent given on the 2nd November, 1993 was:-

	"That he was satisfied having construed and interpreted the 1st of April 1993 Judgment and Order of Johnson J. in the High Court that the statutory Regulations in question in their entirety had not been properly legitimised and that therefore the offences alleged on the summonses were not offences known to the law and therefore for want of jurisdiction he was striking the summonses out".
	In the Meagher case (which also related to the possession of substances prohibited under the 1988 Regulations) Johnson J. said that the essence of the allegations was whether the Regulations of 1988 and 1990 were ultra vires and unconstitutional in so far as they purported to 
(a)	amend the Petty Sessions (Ireland) Act, 1851 and
(b)	confer additional rights regarding Search Warrants and searching of houses on the Minister for Agriculture.
	The particular parts of the Regulations which gave rise to the application in the Meagher case were Article 11, paragraph 4 of the 1990 Regulations extending time for institution of proceedings to two years, Article 16, paragraph 2 of the 1988 Regulations concerning Search Warrants and Article 32, paragraph 8 of the 1988 Regulations also extending time to two years.  
	Johnson J. said what was challenged was the fact that existing laws were purported to be amended by Regulation.  In his view any power given to a Minister to make Regulations for the purposes of amending or repealing laws is unconstitutional and he found that such portion of Section 3(2) of European Communities Act, 1972 (the 1972 Act) as entitled a Minister by Regulation to repeal or amend or apply, with or without modification, other law exclusive of that of the said Act is unconstitutional.  He made no Order in respect of other relief sought in the High Court in particular whether the Regulations of 1988 and 1990 were ultra vires nor did he make an Order quashing the search warrant and prohibiting the prosecution.
	The Judgment of the Supreme Court on the constitutional issue was pronounced by Finlay C.J. on the 18th November, 1993.  The Court held that the power to make Regulations in the form in which it is contained in Section 3, subsection 2 of the 1972 Act is necessitated by the obligations of membership by the State of the Communities now of the Union and is therefore by virtue of Article 29, Section 3, subsections 3, 4 and 5 of the Constitution immune from constitutional challenge.
	In a separate Judgment of the Supreme Court, Blaney J. went on to deal with the other reliefs which had been sought in the High Court but in respect of which no Order had been made.  These narrowed down to a single issue: whether the Regulations of 1988 and 1990 were ultra vires the Minister under Section 3 of the 1972 Act in so far as they authorised the District Court to grant a Search Warrant and to permit a summons to be brought within two years of the commission of an offence notwithstanding Section 10(4) of the Petty Sessions (Ireland) Act, 1851.  It was held that the Minister had such power.  
	It was submitted by the Applicant that Johnson J. did not declare the Regulations of 1988 and 1990 to be ultra vires.  On his finding only that portion of Section 3 of the 1972 Act and only those portions of the Regulations which purported to amend a law were invalid.  This has no relevance therefore to the present case.  The Respondent, in holding that the Regulations of 1988 and 1990 were not valid in law and in holding on that basis that he did not have jurisdiction to hear and determine the accusations against the Notice Party wrongfully declined jurisdiction.  The Regulations had the presumption of constitutionality and only the High Court and/or the Supreme Court had jurisdiction to decide the constitutionality of the same.
	Counsel for the Notice Party submitted that the decision of the Respondent was properly made and within jurisdiction on the bona fide opinion that the offences alleged against the Notice Party were not offences at law.  He made his order under Rule 66 of the District Court Rules of 1948 which is headed "Order to dismiss or strike out in cases of summary jurisdiction" and provides:-
	"In any case of an offence punishable on summary conviction where the Justice does not convict the defendant, he may dismiss the complaint either on the merits or without prejudice to its being again made.  If he is not satisfied that the appropriate provisions of these rules have been complied with or is of opinion that the complaint before him discloses no offence at law or if neither the complainant nor the defendant appears, he may if he thinks fit strike out the complaint without awarding costs, but this order shall not debar the complainant from bringing fresh proceedings in the same matter."

	The Notice Party submitted that the entire of Regulations were struck down as invalid as a result of the decision of Johnson J. dated the 1st April, 1993 and this stood as a valid interpretation until his Order was vacated by the Supreme Court on the 18th November, 1993.  
	On the 20th July, 1993 the European Communities (Amendment) Act, 1993 (the 1993 Act) was passed which had the effect of confirming the statutory instruments creating the offences alleged against the Notice Party as from that date.  Since the offences alleged against the Notice Party were allegedly committed on the 18th December, 1992 and this pre-dated the passing of the Statute, the Notice Party could not be prosecuted for an offence which was not an offence at law at the time of its alleged commission (see Article 15.5 of the Constitution).
	On this basis the Respondent formed a bona fide opinion on an informed basis that no offence known at law was disclosed to him and his decision was properly made within his jurisdiction. 
	I accept that if Johnson J. had declared that the entire of the Regulations of 1988 and 1990 were invalid, the Respondent would be bound by that decision until it was reversed, (State (Llewellyn) -v-   Donnachada 1973 IR 151 at 157).  Also, if the Respondent had heard and determined the case and if his decision was erroneous in fact or law, Mandamus would not lie (R (Spain) -v- Income Tax Commissioners (1934 IR 27)).  But if the Respondent refused to hear a case, Mandamus would lie (R (McGrath) -v- Clare Justices (1905 2 IR 510)).
	Neither the Order nor the Judgment of Johnson J. showed that he made any such declaration.  There was no declaration that the entire Regulations of 1988 and 1990 were invalid.  The Meagher case was only concerned with the powers of search conferred under Article 16 of the 1988 Regulations and the extension to two years of the period of six months laid down by the Petty Sessions (Ireland) Act, 1851.  Neither of these were relevant to this case where the powers of search were not in issue and the summons was brought within six months anyway.  The matter appears to me to be similar to the case of D.P.P. -v- Brennan 1992 2 I.R. 233.  
	Since the Meagher case did not impugn the entire Regulations there was a presumption of constitutionality which the Respondent was bound to observe.  He had no jurisdiction to determine that the Regulations in their entirety were null and void and refuse to hear the case.  The confirmation of the Regulations by the 1993 Act was a damage limiting exercise in the event that the Supreme Court upheld the decision of Johnson J.  It was not relevant to consider the 1993 Act in interpreting the decision of Johnson J.
	The appropriate course is to make an Order of Mandamus sending the matter back to the District Court for hearing and determination.