High Court ruling sparks fears of case backlog

Judge Marguerite Bolger's ruling that it fell to the prosecuting garda to both institute and conduct a prosecution could lead to a spate of adjournments, according to some sources

High Court judge Ms Justice Marguerite Bolger made the ruling after a defendant challenged the right of audience of a garda sergeant. File picture: Maxwells

The Department of Justice and the Attorney General are in talks over how to deal with a High Court ruling which could mean district court prosecutions having to be conducted by the charging garda, amid fears that it could create a backlog of cases.

The ruling by Ms Justice Marguerite Bolger came after a defendant, initially accused of possessing a small quantity of cannabis, challenged the right of audience of a garda sergeant in the absence of the garda who had initially charged the man. The defendant had pleaded not guilty to the charge but when there was no appearance by the prosecuting garda or by a solicitor from the Office of the Director of Public Prosecutions DPP, the sergeant indicated to the court that he was "instructed' by the garda in the case and that he was not in a position to proceed, but could provide facts to the court in the event of a guilty plea.

That sparked the challenge under Section 8(2) of the Garda Síochána Act 2005, which outlines how "any member of the Garda Siochána may institute and conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions".

In the High Court, it was found that it fell to the prosecuting garda to both institute and conduct the prosecution — and not allow the conducting of the prosecution to fall to the sergeant. It could mean that the prosecuting garda will now have to prosecute the case in court — or that gardaí of higher rank, such as at superintendent and inspector level, will now have to process such cases, as opposed to the current system in place in some areas where 'court presenters' of sergeant rank can deal with uncontested matters, such as guilty pleas or facilitating adjournments.

However, in making the judgement, Ms Justice Bolger said: "The outcome of this case may adversely affect the way in which criminal prosecutions are managed before the District Court. 

This court does not underestimate or disregard the administrative challenges in managing the system of District Court criminal prosecutions and the need for an efficient and effective system to do so.

She listed the matter for mention at 10am on June 16 "for the making of any final orders that may be required" — a time window which is likely to see either the judgement appealed, or for an emergency amendment to be implemented.

A spokesperson for the Minister for Justice, Helen McEntee, said: "“The Minister is aware of today’s judgment. The Department of Justice is examining the implications of the judgment in consultation with the Office of the Attorney General and An Garda Síochána.”

A spokesperson for An Garda Síochána said it is "working closely with the Office of the Director of Public Prosecutions to ensure continuity in the prosecution of cases before the District Courts". 

The Association of Garda Sergeants and Inspectors also said it was considering the judgement and its possible implications, as did the Garda Representative Association.

One source expressed concern that it could lead to a spate of adjournments, adding to already busy court lists, although it is thought unlikely that it would open the way to challenges against previous convictions. 

On Tuesday, most cases at a special sitting of Galway District Court were adjourned following an announcement from the DPP’s office regarding the High Court decision, with Judge John King taking only cases where pleas were entered, and adjourned several contested matters to October.