District Court President Mr Justice Paul Kelly has said that many cases may have to be adjourned, and more gardaí may have to attend courts, as a result.
The District Court rule which permits any garda to present a prosecution is an impermissible amendment of section 8.2 of the Garda Síochána Act that limits that “significant right” to the garda who initiated the prosecution, the High Court has declared.
The judge said that the clause, which permits a garda to initiate and conduct a District Court prosecution on behalf of the Director of Public Prosecutions (DPP), means that an officer must have both initiated and conducted the prosecution to have a right of audience before the District Court.
The right of audience conferred on members of specified groups, including gardaí, is not part of court practice and procedures, but is “more significant, and akin to the administration of justice”, Ms Justice Bolger said.
In a comment to The Irish Times, District Court president Judge Paul Kelly said that he was awaiting the DPP’s response, which might be to appeal, but that, in the meantime, the High Court decision was stating the law.
The Law Society is aware of the judgment and is currently in the process of analysing it. “In the meantime, we will await a response to the judgment by the Director of Public Prosecutions, and advise our members accordingly," the Society said.
Garda sources said that resources would be affected as a result, with some members moving away from frontline duties.
The 2018 Commission on the Future of Policing said that a new State prosecution service should take charge of bringing cases to court.
The report insists on a binary approach to police investigation and criminal prosecution, which it believes are two separate jobs, as is the case in comparable jurisdictions.
It calls for the immediate cessation of police prosecutions in court, because gardaí “are not trained to the level of the opposing defence lawyer”.
It says current practice is “enormously wasteful” of policing resources, and takes gardaí away from their core duties.
In her ruling, Ms Justice Bolger said she did not disregard the administrative challenges in managing the system of District Court criminal prosecutions.
She said, however, that efficiency needs could not override the fact that the rule went impermissibly beyond what is permitted by section 8.2.
The legal issue arose in relation to a 2021 prosecution, in which a man denied a charge of possessing cannabis.
A Garda Sergeant, who said he was “instructed” by the prosecuting garda, told District Judge Miriam Walsh that he was not ready to proceed, but that facts could be provided if there was a guilty plea.
After the defendant’s solicitor argued that the sergeant had no right of audience before the District Court, Judge Walsh referred legal issues to the High Court for determination.
The Attorney General was a notice party to the High Court case.
Lawyers for the DPP and AG argued that the revised interpretation of the District Court rules would result in a fundamental overhaul of the courts presenter system operating in the District Courts.
Ms Justice Bolger ruled that the sergeant who had appeared in the case had no right of audience, which, she held, was limited to gardaí who made the first arrest and charge.