The High Court has ruled that a garda who did not initiate a prosecution had no right to appear and prosecute it in the District Court, answering “No” to a question referred by a District Court judge.
The case arose after Ciarán Davitt appeared in the District Court on 28 August 2021 to answer an allegation that he possessed a small quantity of cannabis. He indicated through his solicitor that he would plead not guilty. Garda Liam Varley, identified as the prosecuting garda, was absent. Sergeant Riley told the court he was instructed by Garda Varley and could provide facts if there were a guilty plea. The judgment records that this was Sergeant Riley’s only involvement in the case.
The defence argued that a garda could conduct a prosecution under section 8(2) of the Garda Síochána Act 2005 only if that garda had also initiated it. The State parties argued that the word “and” in the provision should be read to permit one garda to initiate a case and another to conduct it, and relied on the District Court Rules’ provision for any garda to address the court in prosecutions brought in the name of the Director of Public Prosecutions.
Justice Aileen Bolger said the case stated was confined to the facts recorded by the District Court judge. She therefore did not consider the State parties’ claim that Sergeant Riley had sought only a remand, rather than to present the case. The referred question concerned his right of audience to prosecute.
The judge held that section 8(2)’s ordinary meaning required the garda to both initiate and conduct the prosecution to have that right. She found that Order 6, rule 1 of the District Court Rules went beyond the statute insofar as it purported to give a right of audience to gardaí who had not initiated the prosecution. On the facts referred, Sergeant Riley had no right of audience to prosecute the case.
The High Court’s ruling answered the consultative case stated; it did not dispose of the underlying cannabis allegation. The judge said the matter would be listed for mention on 16 June 2022 for any final orders that might be required.