No time limit for service of book of evidence on indictable charges

Mon, Apr 30, 2012, 01:00

LEGAL UPDATE:Farrell v. Judge Browne (2012) IEHC 54 (High Court, Mr Justice Michael Peart, February 7th, 2012).

THE APPLICANT sought judicial review of the order of the Circuit Court remanding him on bail pending the service of a book of evidence without any extension of time for the service, and of the order returning him for trial.

The applicant was charged on September 21st, 2010, with three drug offences dating back to 2007.

One offence, under sections 15A and 27A of the Misuse of Drugs Act 1977, was triable on indictment only. The other two were “hybrid offences” which could by tried summarily in the District Court or on indictment with the consent of the DPP.

The applicant was remanded on bail until October 5th, 2010, and then until November 2nd, 2010, for service of a book of evidence. The book was not ready on that date and the accused was remanded on bail until November 26th, with no reference made to any extension of time for the service of the book of evidence.

On November 16th, the book was served and the applicant returned for trial. The applicant sought judicial review of the order remanding him without extension of time and of the order returning him for trial.

In a replying affidavit, the prosecution stated that the decision to prosecute the applicant on indictment was only communicated from the DPP’s office on November 2nd, 2010, and that the application to remand the applicant until November 16th was made on that basis.

In refusing judicial review, Mr Justice Peart pointed out that section 4B of the Criminal Procedure Act 1967 provided for the service of a book of evidence, where there was an indictable offence, within 42 days of the accused first appearing in the District Court.

This was substituted by section 37 of the Criminal Procedure Act 2010 stating that in the case of a “hybrid” offence there was a 42- day limit for service of the book of evidence from the date on which the accused or prosecutor informed the court of their objection to summary disposal; or from when the prosecutor elected to try the offence on indictment; or from when the court determined that the offence was not minor and not fit to be tried summarily.

This substitution made no provision for any time limit for the service of a book of evidence where the offence was triable on indictment only and there was no statutory period for the service of a book of evidence in respect of the charge triable on indictment only.

While the Oireachtas might not have intended to remove the specific time limit in these circumstances, section 37 was clear and unambiguous and did not lead to an absurdity.

In this case the 42-day period for the service of a book of evidence in the “hybrid” charges began on November 2nd, when the prosecutor elected to try them on indictment, and the book had been served within that period.

Accordingly, the applicant was not entitled to the reliefs sought.

Barrister Mark Tottenham is editor of the Stare Decisis Hibernia website ( staredecisishibernia.com)