THE HIGH COURT
			JUDICIAL REVIEW
			No.299/1998JR
BETWEEN 
BRIAN FITZGERALD 
			APPLICANT 
AND 
THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL 
			RESPONDENTS
JUDGMENT of Mr. Justice Kearns delivered on the 4th day of May, 2001.
	This case is a challenge to the constitutionality of the proviso contained in Section 4 of the Summary Jurisdiction Act, 1857 whereby a District Judge may not refuse to state a case where application for that purpose is made to the District Judge by or under the direction of the Attorney General or the Director of Public Prosecutions.  
	The Applicant appeared before the District Court on the 12th February, 1998 to answer a complaint pursuant to the provisions of the Road Traffic Act, 1961, Section 49(3) and (6) (a), relating to driving a mechanically propelled vehicle in a public place while under the influence of alcohol in excess of the permissible level.
	Garda Michael Fenlon of Santry Garda Station gave evidence that on the 7th March, 1997 at 10.50 p.m. while on motorcycle duty he attended the scene of a road traffic accident near the Comet public house on the Swords Road in Co. Dublin.  Two cars were involved, one of which was owned by the Applicant.  He emerged from the Comet pub to inform the Garda that he was the owner and driver of one of the vehicles.  Garda Fenlon noted that the Applicant seemed unsteady on his feet and enquired if he had been drinking.  The Applicant stated he had consumed two pints of Guinness before the accident, but had gone back into the pub after the accident where the Manager had given him a large whiskey to “calm his nerves”.	
	Garda Fenlon formed the opinion that the Applicant had consumed intoxicating liquor to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place and arrested the Applicant who was conveyed to Santry Garda Station where the Applicant provided a urine sample.  A certificate was received from the Medical Bureau of Road Safety, showing a concentration of 216 milligrams of alcohol per 100 mls of urine.  
	In the course of the hearing, Garda Fenlon stated that he knew the Applicant had consumed a large whiskey after the accident as he had spoken with the bar owner who had confessed to him that he had given this whiskey to the Applicant who was in shock after the accident.  The Applicants wife had also been given an alcoholic beverage.
	Counsel for the Applicant sought a dismiss of the case on the basis that the Applicant would not have been over the limit but for the extra drink which he had taken in the aftermath of the accident.
	The District Judge took the view that the Applicants high reading was due to the large whiskey which the bar Manager had given to him.  He also expressed himself satisfied that there was no evidence to suggest that the Applicant was attempting to frustrate the prosecution.  In the circumstances he dismissed the charge.
	No application was made either during the hearing or immediately upon its determination to the learned District Judge to state a case to the High Court on any point of law.
	However, on the 25th February, 1998, the DPP served an application on the District Judge requiring him to state a case to the High Court pursuant to Section 2 of the Summary Jurisdiction Act, 1857 and Section 51 of the Courts (Supplemental Provisions) Act, 1961.  The opinion of the High Court was to be sought on whether the District Judge was correct in law in dismissing the said charge “on the grounds that the prosecuting Garda had given evidence that the Applicant had been given a large alcoholic beverage after the driving complained of and before the specimen was subsequently taken from him”.
	On the 20th July, 1998 the Applicant sought and obtained leave to bring judicial review proceedings on various grounds set out in the Order of the President of the High Court made on that date.  By Order of Kelly J. made on the 13th day of March, 2001 the Applicant was granted liberty to amend the Statement for Judicial Review to seek the following declaration:-
(a)	A declaration that Section 4 of the Summary Jurisdiction Act, 1857 is invalid having regard to the provisions of Article 34 of the Constitution of Ireland, 1937
(b)	A declaration that Section 4 of the Summary Jurisdiction Act, 1857 is inconsistent with the provisions of the Constitution of Ireland, 1937 and was not carried over by Article 50 of the Constitution of Ireland, 1937
(c)	In the alternative a declaration that Section 4 of the Summary Jurisdiction Act, 1857 was repealed by Section 83 of the Courts of Justice Act, 1924.
	In the course of the hearing before this Court the various reliefs sought and the grounds relied upon boiled down to the net issue as to whether Section 4 of the Summary Jurisdiction Act, 1857 was incompatible with the provisions of the Constitution.
	Mr. Hogan on behalf of the Applicant submits that the stating of a case by District Judge is an exercise of judicial discretion relating to a matter of justiciable controversy.  The section complained of, by stripping the District Judge of any discretion when requested to state a case by the DPP, amounts to an unwarranted interference in the judicial domain.  Furthermore, this power avails one party to the proceedings only, and is thus discriminatory.
	The relevant provisions of the Summary Jurisdiction Act, 1857 provide as follows:-
	“2.  after the hearing and determination by a justice or justices of the peace of any information or complaint which he or they have power to determine in a summary way, by any law now in force or hereafter to be made, either party to the proceeding before the said justice or justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within 3 days after the same to the said justice or justices, to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the Superior Courts of law to be named by the party applying....
4.  If the justice or justices be of opinion that the application is merely frivolous, but not otherwise, he or they may refuse to state a case, and shall, on the request of the Appellant, sign and deliver to him a certificate of such refusal: provided that the justice or justices shall not refuse to state a case where application for that purpose is made to them by or under the direction of Her Majesty’s Attorney General for England or Ireland, as the case may be.
5.  Where the justice or justices shall refuse a case as aforesaid, it shall be lawful for the Appellant to apply to the Court of Queens Bench upon an Affidavit of the facts for a rule calling upon such justice or justices, and also upon the Respondent, to show cause why such case should not be stated; and the said Court may make the same absolute or discharge it, with or without payment of costs as to the Court shall see meet, and the justice or justices upon being served with such rule absolute shall state a case accordingly, upon the Appellant entering into such recognisance as is hereinbefore provided.”

	On behalf of the Applicant, Mr. Hogan eventually accepted that these statutory provisions were not “impliedly repealed” by the Courts of Justice Act, 1924, given that in AG (Fahy) -v- Bruen (1936) IR 750, the Supreme Court held that the type of case stated provided for by the Summary Jurisdiction Act, 1857 was continued in force by the Courts of Justice Act, 1924 as adapted by that Act.
	Section 83 of the Courts of Justice Act, 1924, provided however for a new type of consultative case stated to be made before the determination of the matter by the District Judge, different from that provided by the Summary Jurisdiction Act, 1857.    
	Section 83 of the Courts of Justice Act, 1924 provided:-
	“A Justice of the District Court shall (if requested by any party to any proceedings before him unless he considers the request frivolous) and may (without request) refer any question of law arising in any case before him to the High Court for determination, and the determination of the High Court thereon shall be final and conclusive and not appealable.”

	Section 83 of the Courts of Justice Act, 1924 as amended by Section 56 of the Courts of Justice Act, 1936 was repealed by Section 3 of the Courts (Supplemental Provisions) Act, 1961 ( First Schedule thereto).
	Section 51 of the Courts (Supplemental Provisions) Act, 1961 provides as follows:-
	“51(1) Section 2 of the Summary Jurisdiction Act, 1857, is hereby extended so as to enable any party to any proceedings whatsoever heard and determined by a Judge of the District Court (other than proceedings relating to an indictable offence which was dealt with summarily by the Court) if dissatisfied with such determination as being erroneous on a point of law to apply in writing within 14 days after such determination to the said Judge to state and sign a case setting forth the facts and the grounds for such determination for the opinion thereon of the High Court.  
(2)  Upon the making of an application under Section 2 of the Summary Jurisdiction Act, 1857 as extended by subsection (1) of this Section, for a case stated the determination in respect of which the application is made shall be suspended - 
(a) where the Judge of the District Court to whom the application is made grants the application, until the case stated has been heard and determined, and 
(b)  where he refuses to grant the application, until he so refuses
(3)  the references in Sections 6, 8, 9, 10 and 14 of the Summary Jurisdiction Act 1857, to that Act shall be construed as references to that Act as extended by subsection (1) of this Section 
(4)  in Section 2 of the Summary Jurisdiction Act, 1857, and in this Section, “party” means any person who is entitled to be heard and was heard in the proceedings in which the determination in respect of an application for a case stated is made was given.”

	During the course of the hearing before this Court, it was or became the common position of the parties that Section 4 of the 1857 Act survived the various amendments and repeals outlined above and provides the statutory basis for the provision contained in the District Court Rules at O. 102, R. 15 which provides:-
	“15.  Where a Judge considers that an application or a request for a case stated is frivolous, he or she may refuse to state a case and shall, on the request of the Appellant or the party requesting the case stated, sign and cause to be delivered to him or her a certificate of refusal in the form 102.6 Schedule D and cause a copy thereof to be served upon every other party to the proceedings.  A judge shall not refuse to state a case where application or request for a case stated is made by or under the direction of the Attorney General, the Director of Public Prosecutions, a Minister of the Government or a Minister of State, or the Revenue Commissioners.”

	Mr. Hogan argues that the statutory proviso, as reflected in Rule 15, is objectionable.  It is, he says, an unwarranted interference in the judicial domain.  He submits it is both unnecessary and discriminatory to vest a power of such considerable importance is one side only.  Further, the effect of the proviso is to supplant the District Judge entirely, so that the DPP, in effect, becomes the arbiter of what may be considered “frivolous”, thereby reducing the District Judge to no more than a cipher who is mandated to exercise his discretion in only one way.  This situation, he argues, cannot be compatible with the constitutional requirement of separation of powers and the exercise of judicial discretion in justiciable controversies by Judges alone.  The decision whether or not to state a case is quintessentially a judicial decision.  In support of his submission, Mr. Hogan relied upon the decision of the Supreme Court in the State (McEldowney) -v- Kelleher and Another (1983) IR 289.
	In that case, a District Judge was directed under Section 13(4) of the Street and House to House Collections Act, 1962 to disallow an appeal brought before him if, at the hearing, a police officer stated on oath that he had reasonable grounds to believe that the proceeds of the collection would be used for the benefit of an illegal organisation.  The Supreme Court found that the particular section constituted an impermissible invasion of the judicial domain by requiring that justiciable proceedings, within the exclusive competence of the Courts established under the constitution, be determined by the legislator.  
	In the course of delivering the Courts judgment, Walshe J. stated at p.303:-
	“It is quite clearly laid down in Buckley & Others (Sinn Fein) -v- The Attorney General (1950) I.R. 67 that, where the effect of a statutory provision is that the dispute is determined by the Oireachtas and not by the Court and where the Court is required or directed by the Oireachtas to dismiss the Appellants appeal without forming any opinion as to the rights of the respective parties, the provision is clearly invalid having regard to the provisions of the Constitution.  So also the decision in Maher -v- The Attorney General (1973) I.R. 140 where a statutory provision, which conferred on some particular evidence the quality of conclusivness in respect of a fact to be determined by the District Justice, was held to be invalid having regard to the provisions of the Constitution for the same reason, namely, that it was an infringement of the exclusive right of the Court to determine the justiciable controversy.  In the State (C) -v- The Minister for Justice (1967) I.R. 106 this Court held to be inconsistent with the provisions of the Constitution, as an unwarranted constitutional interference in the judicial domain, a statutory provision which enabled the legislative provision to intervene to adjourn a preliminary investigation on the grounds that the accused was of unsound mind; that enactment took the accused away from the Courts disposal, thus setting at naught the Courts remand, and effectively adjourned the preliminary investigations sine die.  That was described (at p.116) as “about as large an intrusion upon a Court proceeding as one could imagine”.
	In the opinion of the Court, the present case falls squarely within the principles enunciated in those decisions.  The statute creates a justiciable controversy and then purports to compel the Court to decide it in a particular way upon a particular statement of opinion being given upon oath as to whether or not a statutory reason for refusing the permit exists, whatever opinion the Court may have formed on the issue in question, or might have formed if it had heard any evidence upon it.”

	Mr. Gaffney for the Respondent argued, firstly, that while a decision to state a case was a judicial function and part of the administration of justice, it fell short of being the determination of a justiciable controversy.  No facts of a determinative nature were resolved in the context of a decision to grant or refuse a case stated. 
	On the main issue Mr. Gaffney relied upon the State (O’Rourke) -v- Kelly (1983) I.R. 58 as good authority for the proposition that a District Judge may be required by law to make a mandatory order.  In that case the Supreme Court considered certain provisions of the Housing Act, 1966, dealing with the recovery of possession of local authority dwellings.  Where there was no tenancy in such dwellings, the local authority could issue a demand for possession and then apply to the District Court for an Order directing the issue of a warrant empowering the Sheriff to put the local authority in possession of the dwelling.  A mandatory obligation to issue the warrant was imposed on the District Judge once he was satisfied that certain formalities had been complied with and that a demand for possession had been duly made.  That mandatory obligation was challenged in O’Rourke as being an invasion of the judicial domain because, it was said, it deprived the District Judge of any real discretion in the matter.  The Supreme Court dismissed that objection and held that the impugned provisions of the Act of 1966 were constitutionally valid.  In delivering the judgment of the Supreme Court in O’Rourke, the Chief Justice stated:-
	“It will be seen that it is only when the provisions of subsection 1 of Section 62 have been complied with and demand duly made to the satisfaction of the District Justice that he must issue the warrant.  In other words, it is only following the establishment of specified matters that the subsection operates.  This is no different to many of the statutory provisions which, on proof of certain matters make it mandatory on a Court to make a specified Order.  Such legislative provisions are within the competence of the Oireachtas.”

	The first point in defence argued by Mr. Gaffney can be quickly dealt with.  I do not believe that the issue before the District Judge, in order to be a justiciable controversy, necessarily implies that the particular decision will be determinative of the entire matter.  It is sufficient if it be a step in a process the end result of which may affect the legal rights of a citizen.  One has only to note that in the State (C) -v- The Minister for Justice a statutory provision which permitted the adjournment of a preliminary investigation on the grounds that an accused person was of unsound mind was regarded as a “significant intrusion” upon the Courts discretion.  The very statutes creating the case stated remedy themselves expressly recognise that the decision to refuse is reviewable by a higher Court. 
	Even decisions of tribunals which do not give rise directly to any legally enforceable rights or liabilities can, if one step in a process to that end, be subject to certiorari.  As was stated by Diplock LJ. in R -v- Criminal Injuries Compensation Board, ex parte Lane (1967) 2 QB 864 at p.884:-
	“It is plain on the authorities that the tribunal need not be one whose determinations give rise directly to any legally enforceable right or liability.  Its determination may be subject to certiorari notwithstanding that it is merely one step in a process which may have the result of altering the legal rights or liabilities of a person to whom it relates.  It is not even essential that the determination must have that result, for there may be some subsequent condition to be satisfied before the determination can have any effect upon such legal rights or liabilities”.

	I accordingly reject this submission made by the Respondents.
	Turning to the main issue, Article 34 (1) of the Constitution provides:-
	“Justice shall be administered in Courts established by law by Judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

	There can be no doubt but that the proviso completely removes the discretion of the District Judge to decide whether or not to state a case.  The resolution of the present issue therefore hinges on whether or not a statutory provision which mandates a District Judge to exercise his discretion in a particular way can ever be constitutional.  
	The Supreme Court in McEldowney distinguished that case from the State (O’Rourke) -v- Kelly, holding (at p.305) that O’Rourke’s case:-
	“Is not, however, an authority for the proposition that the District Court, in the exercise of its judicial functions, must adjudicate in a particular way upon the issues in dispute irrespective of the opinion, if any which is being formed by the District Judge upon the issues before him”.

	The Court did not find in O’Rourke  any question of a District Judge being compelled by the Act of 1966 to be satisfied that certain formalities were observed simply upon a statement on oath to that effect.  Furthermore, the Act of 1966 did not provide any form of appeal to the District Court against an application to recover possession of the premises; the procedure provided for was a “safety device” to ensure that, before there was any recovery under the terms of the Act, the statutory formalities had been observed.  
	At p.304 Walshe J. stated:-
	“Even so, the Act of 1966 still provides for the necessity of proof of compliance with those statutory requirements so that the District Justice may make his own adjudication upon that issue.”

	I think Mr. Hogan is correct in suggesting that the very element of “offensiveness” identified in McEldowney is present under the proviso contained in Section 4 of the 1857 Act, and that offensiveness is, in my view, only heightened by the fact that the power to make such a demand of a District Judge is confined to the DPP and is not available to the other party to the litigation.  
	It is not as though the striking down of the proviso would deprive the DPP of any remedy where a District Judge, wrongly in his view, refused to state a case when exercising his discretion.  A District Judge must state a case unless, in the exercise of that discretion, he deems the application frivolous.  It is hardly to be expected that applications brought under Section 2 (as amended and expanded) by or on behalf of the DPP will frequently stumble or fall on this particular ground.
	Indeed, as pointed out by Mr. Hogan, the decision of Blayney J. in Sports Arena Limited -v- O’Reilly (1987) I.R. 185 makes it clear that where a District Judge refuses to hear a case before him on the grounds that he has no jurisdiction to hear it, he may not refuse to state a case on that issue.  The High Court retains full discretion to determine whether or not it is proper to direct a District Judge to state a case.  
	In these circumstances, the discriminatory provision contained in the proviso in Section 4 is hard to justify.  Other than the authority cited by Mr. Gaffney, no other reasons of policy or necessity have been advance on behalf of the Respondent to justify what can only be seen as a superfluous and discriminatory statutory provision.
	In making the declaration sought, I also reject one further submission made by Mr. Gaffney: that the Applicant is disentitled to relief because of delay.  True it is that the application was brought some two months after the time limit indicated in O. 84 R. 21 for the bringing of an application seeking prohibition.  However, as Mr. Hogan points out, had the application been brought following the signing off of the case stated by the District Judge, the application would have been for certiorari, rather than prohibition, in which circumstances the application would certainly have been within the time provided.  Furthermore, he submits, and I believe correctly, that there has been no question of any prejudice suffered by the Respondent.