The Supreme Court has allowed an appeal concerning whether a Garda member who did not initiate a prosecution could appear for the prosecution in the District Court. In a judgment delivered by Ms Justice Dunne on 14 July 2023, the Court held that the District Court rule allowing Garda court presenters was valid. It also said a consultative case stated was not an appropriate procedure for challenging the rule’s validity.
The case arose after a man was charged with possessing a small quantity of cannabis on 13 February 2020. The prosecution was brought in the name of Garda Liam Varley. When the matter came before the District Court on 28 September 2021, the man indicated he would plead not guilty. Garda Varley and the Director of Public Prosecutions did not appear. Sergeant Brendan Riley said he was instructed by Garda Varley, but was not in a position to proceed; he said he could provide facts if there were a guilty plea. The defence challenged his right to appear.
The District Court referred a question to the High Court: whether Sergeant Riley had a right of audience to prosecute the case. The High Court held that only the Garda who prosecuted the case could appear, and found the relevant District Court rule invalid to the extent that it gave other Garda members that right. The State parties appealed. After that judgment, the Oireachtas amended the Garda Síochána Act 2005 to provide that a prosecution instituted by one Garda member may be conducted by that member or another Garda member.
Justice Dunne concluded that the 1997 District Court rule was valid under the rule-making power in the Courts of Justice Act 1924. She said the rule concerned District Court practice and procedure, and described court presenters as part of a long-established system. She also rejected the argument that the 2005 Act had removed the ability of a non-prosecuting Garda to conduct a prosecution.
However, the Court said the consultative case-stated process could not be used in these circumstances to challenge the validity of the District Court rule. The District Court had to apply the rule, and the challenge should have been brought by another procedure, such as judicial review. Justice Dunne said it would have been preferable not to reach a conclusion on the case stated itself.
The appeal was allowed. The judgment addresses the validity of the rule and the suitability of the procedure used; it does not report a final decision on the underlying cannabis charge.