Burke –v- District Judge Hamill and the D.P.P
[2010] IEHC 449
High Court (Irvine J.) 23 November 2010
Judicial review – District Court judge having seisen of case – Embarking upon hearing prior to
determination of High Court proceedings – Ordering psychiatric treatment without assessment
Facts:
The applicant was convicted and fined by the first named respondent in respect of four animal welfare
offences prosecuted by way of summons. He was also convicted of criminal damage under s.2 of the
Criminal Damage Act 1991 and sentenced to one month’s imprisonment. Two copy orders were
before the High Court in relation to this second conviction, a signed version which stated “and further
judge recommends that the defendant receives psychiatric treatment” and an unsigned copy which
simply read, “orders psychiatric treatment while in prison”. The applicant was granted leave to apply
for judicial review in respect of all convictions.
Prior to the hearing of these matters, a different District Court judge had fixed three dates for the
hearing of the summonses and had allowed for a mention date before said hearing in order to allow the
applicant to make legal argument in relation to the summonses.
Arguments of Counsel:
On behalf of the applicant:
1. The first named respondent should not have heard the cases as the other District Court judge
had seizen of them;
2. The proceedings should have been postponed until after the determination of High Court
proceedings brought by the applicant challenging the constitutionality of the statutory
provisions forming the basis of the summonses;
3. The first named respondent had acted ultra vires in directing that the applicant receive
psychiatric treatment without obtaining a psychiatric assessment to see if it was required;
4. That the applicant’s right to fair procedures had been breached as he was not allowed to make
submission’s regarding the provision of psychiatric treatment in circumstances where a
consultant psychologist had previously reported that he had no psychiatric condition.
On behalf of the second named respondent:
1. No documentary evidence had been provided to prove that the other District Court judge had
seizen and her involvement was limited to dealing with procedural matters;
2. The first named respondent had full jurisdiction to determine the matter as the applicant had
not obtained an order in the High Court or Supreme Court staying the proceedings;
3. The first named respondent had not directed that the applicant undergo psychiatric treatment,
but rather expressed a benevolent sentiment that he receives treatment in prison. There were
two slightly different copies of the District Court order and the one signed by the first named
respondent should reflect his true intentions. The signed order directed psychiatric assessment
rather than treatment. The second named respondent also argued that even if the other order
was the correct one, the affected area of said order could be severed from the remainder and
the conviction should not, therefore, be quashed.
Held:
In refusing to grant the relief sought:
1. That the other District Court judge did not have seizen as she had simply fixed three dates for
hearing and allowed a mention date in between. On the mention date she had reviewed the
documents and decided that the case should proceed on the set hearing dates. That was an
administrative ruling and did not involve making any determination in relation to the
summonses.
2. That the first named respondent had not acted beyond jurisdiction to hear each of the cases
which were listed de novo before him nor had the applicant failed to receive a fair hearing.
Even if the applicant had received a letter from the District Court office indicating that Judge
Martin was scheduled to hear cases commencing on the 30th September, 2009, such
notification did not give the applicant any ground for contending that the first named
respondent was not entitled to hear the cases on that date.
3. The first named respondent was not prevented from hearing the summons prior to the
determination of the High Court proceedings. There was no stay or injunction precluding a
lower court from dealing with these matters. If the court were to take the view that a party
who seeks to challenge the constitutionality of legislation is automatically entitled to a stay, it
would lead to chaos and would be open to substantial abuse.
4.
The first named respondent’s recommendation that the applicant be assessed from a
psychiatric perspective whilst serving his prison sentence was merely a benevolent suggestion
and did not render the penalty imposed ultra vires.
5. If the court were to prefer the unsigned order as representing the actual order made, that part
of the order which “orders psychiatric treatment while in prison” does not form any part of the
sentence and therefore is severable from the penalty of one month’s imprisonment imposed.
6. Obiter dictum: A District Court judge has no jurisdiction to direct that a convicted defendant
receive psychiatric treatment without first directing that they undergo a psych assessment to
see whether treatment required.
Eve Bolster B.L.