THE HIGH COURT

									JUDICIAL REVIEW
									Record No. 1997 404 JR

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
									APPLICANT
AND
DISTRICT JUDGE TERENCE FINN AND
HIS HONOUR JUDGE PETER SMITHWICK
									RESPONDENTS
AND
COLM FOX
									NOTICE PARTY

Judgment delivered the 7th day of May, 1999 by Mr. Justice Barr.

	Save as to one matter which is not crucial to the issue of law raised in this judicial review, the facts which have given risen to the application are not in controversy and are as follows:-
	The notice party is an official employed by the State in the Department of Agriculture and Food.  The applicant (D.P.P.) preferred five charges against the notice party alleging theft and certain fraudulent activities by him relating to his employment with the Department.  The second charge specified in the Statement of Charges is the subject-matter of this application and is as follows:-

	"2.	For you the said accused did on the 10th day of January, 1996 at Monasterboyce, Co. Louth within the court area of Drogheda and District No. 6 within the State had in your possession or under your control without lawful authority or excuse irregular official Department of Agriculture and Food documents, namely, three International Transport Certificates contrary to Section 8(b) as provided for by Section 13 of the Official Secrets Act, 1963" (the Act).

	On 28th May, 1997 the Statement of Charges preferred by the D.P.P. came on for hearing by the first respondent (Judge Finn) by way of preliminary examination, a book of evidence relating thereto having been served on the notice party and presented to the court on behalf of the Director.  Judge Finn heard submissions on behalf of the prosecution and the defence after which he made an order returning the notice party for trial in the Circuit Criminal Court on charges 1, 3, 4 and 5 in the Statement, but he refused informations on charge No. 2, i.e., that relating to an alleged breach of Section 8(b) of the Act.  An order to that effect was duly prepared for and signed by Judge Finn on 28th May, 1997, but it appears to have gone temporarily astray in consequence of which a similar order was made by the second respondent (Judge Smithwick) apparently in the mistaken belief that no formal order had been made by Judge Finn.  When the present application first came on for hearing by me it was discovered that Judge Finn had in fact made a formal order which had been located.  Accordingly, the order purportedly made by Judge Smithwick transpired to be a nullity and is irrelevant to the application for judicial review brought by the D.P.P. which all parties accept relates to Judge Finn's order to which I have referred.  The net issue for determination by this court is the status and effect of that part of Judge Finn's order relating to his refusal of informations on the charge which is specified at No. 2 in the Statement of Charges.  The kernel of the problem is whether the alleged offence is one which must be tried summarily or whether it might be sent forward for trial on indictment with the other offences contained in the Statement of Charges.  
	Section 8(b) of the Act provides that "a person shall not use or have in his possession or under his control, without lawful authority or excuse, any forged, altered or irregular official document".  This offence is one of those contained in Part II of the Act.
	Section 13 which is contained in Part IV of the statute is in the following terms:-

	"13(1)	A person who contravenes or attempts to contravene any provision of this Act shall, without prejudice to any other enactment, be guilty of an offence under this Act.  

	     (2) 	A person shall be triable summarily for any offence under this Act and on conviction shall be liable to a fine not exceeding £100 or to imprisonment for a term not exceeding six months or to both. 

	     (3) 	A person shall be triable on indictment for any offence under section 9 or for any offence under Part II committed in a manner prejudicial to the safety or preservation of the State, and on conviction shall be liable to imprisonment for a term not exceeding two years or to penal servitude for a term not exceeding seven years."

	"....prejudicial to the safety or preservation of the State" is not defined in the Act and as far as I am aware it has not been the subject-matter of judicial interpretation by the superior courts.
	In my opinion, the concept of "safety or preservation of the State" necessarily implies a crime under the Act which is alleged to have been committed by or on behalf of the accused in such a way as to endanger specifically the safety or preservation of the State i.e. the fundamental institution which comprises Irish society.  The crime envisaged by Section 13(3) is one against the State itself in one or more of its fundamental organs and goes beyond damage to an interest of the State however important that may be.  I accept that the official forms which are the subject-matter of the charge in question could have been fraudulently used by the notice party to authorise the importation of BSE infected cattle into the State which could have far-reaching adverse consequences for the Irish agricultural industry.  However, that possible result, grievously harmful to the Irish economy though it could be, would not be a consequence of a crime against the State itself and, therefore, it is not within the exception contained in Section 13(3) of the Act.  It follows, therefore, that the offence charged under Section 8(b) is one which must be tried summarily and may not be tried on indictment as proposed by the D.P.P.
	The remaining issue is whether the order made by Judge Finn refusing informations on the charge in question was made within or without jurisdiction and whether this court has jurisdiction to consider the order on foot of an application for judicial review.  In the light of my ruling regarding the status of the offence charged under Section 8(b) of the Act, it follows that if Judge Finn had acceded to the application of the D.P.P. and had sent the notice party forward for trial on indictment in respect of the charge in question he would have been acting without jurisdiction.  If that is so then the converse has equal validity and Judge Finn had no authority to refuse informations on the charge.  This was not an error made within jurisdiction and, accordingly, it is proper that this court should strike down that part of Judge Finn's order made on 28th May, 1997 which relates to charge No. 2.  The Director is entitled to an order of certiorari in that regard.  As the order made by Judge Finn refusing informations on the charge in question is a nullity, it follows that that charge should go back to him with a direction from this court that it be tried summarily.