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In criminal prosecutions, the District Court has a longstanding system of court presenters, in which an officer of An Garda Síochána not directly involved in the case has a right of audience and can present the facts of the case where the defendant has entered a guilty plea, provide the facts for jurisdiction hearings, and convey DPP direction to the Court. This arrangement, as provided for in the District Court Rules, minimised the number of court appearances required by the Garda who initiated the prosecution.
This system was abruptly halted by the recent High Court decision delivered on the 31st May 2022 by Ms. Justice Bolger (DPP (Varley) v Davitt). The ruling was made following a consultative case stated from Judge Walsh of the District Court. The case involved a man prosecuted for possession of a small quantity of cannabis, who wished to enter a guilty plea. The prosecuting garda was not present when the case came before the Court, and neither was the solicitor from the Office of the DPP. A Sergeant told the Court that he was “instructed” by the prosecuting garda and could provide facts to the Court in the event of a guilty plea. Counsel for the accused challenged his ability to do so and the question was referred to the High Court for determination.
The Court found that the ordinary and natural meaning of “and” in s.8(2) of the An Garda Síochána Act 2005 which permits a garda to initiate and conduct a District Court prosecution, means that the garda must have both initiated and conducted the prosecution in order to have a right of audience before the District Court. In her judgment, Ms. Justice Bolger acknowledged the ruling “may adversely affect the way in which criminal prosecutions are managed before the District Court” (para. 53(v)) but held that the Order 6, rule 1 of the District Court Rules which purported to confer a right of audience on any member of An Garda Síochana was an “impermissible amendment” of the statute (para. 53(iv)).
The impact of the judgment was felt immediately in District Courts across the country, and it remains to be seen how the administrative and practical difficulties will be resolved. The effect of this decision is that a prosecuting Garda will have to attend all court hearings in relation to a case or a representative of the Office of the DPP, instructed by the prosecuting Garda, will need to be present. At present, barristers act on behalf of the State in the Circuit Court and the Special Criminal Court, with the court presenter and the prosecuting Garda managing most District Court prosecutions, except in exceptional circumstances. This decision may result in a new role for junior counsel in the District Court, with the State also instructing them in respect of summary proceedings.
Ms Justice Bolger did note in her decision that she “makes no criticism of the right of audience that is conferred on members of An Garda Síochána” and stated that it is a matter for the legislature as to what rights of audience it wishes to give (para. 53(vi)). The legislature may opt to incorporate the extension of the right of audience provided for in the District Court Rules into the relevant legislation. The Court emphasised the importance of the right of audience conferred by law on specified persons and noted that it was “part of the integrity of the judicial system and necessary to ensure the proper administration of justice” (para. 53(iii)). Any conferring of the right and privilege of an audience before the court is something which no doubt will, and should, be exercised with due care.
It should be noted that a stay was granted pending final orders and the matter is listed for mention on the 16th June 2022 for the making of any final orders. It may be the case that this decision will be subject to appeal. In the meantime, the extinction of the role of court presenter is likely to have implications for garda resources and cause a disruption in the prosecution of summary cases in the District Court. Some possible solutions may include the use of a panel of barristers to prosecute District Court cases going forward, additional State Solicitor hires or the amendment of statute to allow for the existing court presenter system to continue.
(This article was updated on 10 June 2022.)