The relationship between a financial institution and its customers is clearly a commercial one and practitioners will be very familiar with the contractual, statutory and common law duties owed by a bank to its customers. One might ask what possible role the criminal law has to play in that context. However, two cases which have received widespread publicity in recent years involve attempts by former customers to bring private criminal prosecutions against bank employees. Against that background, this article examines the legal basis for, and the extent of, the right of an individual to bring a private criminal prosecution in this jurisdiction in light of recent jurisprudence.
The vast majority of summonses in criminal matters are issued pursuant to an administrative process introduced by the Courts (No.3) Act 1986. An application for the issuing of a summons may be made by the Attorney General, the Director of Public Prosecutions, a member of An Garda Síochána or someone authorised under statute to bring and prosecute proceedings for the relevant offence.1However, this is not the only means by which an individual can be required to come to court accused of criminal wrongdoing. Section 10(4) of the Petty Sessions (Ireland) Act 1851 (the “1851 Act”) states:
"Whenever Information shall be given to any Justice that any Person has committed or is suspected to have committed any Treason, Felony, Misdemeanour,2or other Offence, within the Limits of the Jurisdiction of such Justice, for which such Person shall be punishable either by Indictment or upon a Summary Conviction; or that any Person has committed or is suspected to have committed any such Crime or Offence elsewhere out of the Jurisdiction of such Justice … and such Person is residing or being, or is suspected to reside or be, within the Limits of the Jurisdiction of such Justice … it shall be lawful for such Justice to receive such Information or Complaint, and to proceed in respect of the same …"
The “common informer”
The 1851 Act is statutory recognition of a much earlier common law right enjoyed by a private person to bring a criminal prosecution. As O'Higgins C.J. stated in People v Roddy:
“At common law any person who could give information with regard to a breach of the law had the right to prosecute in respect of that breach. Because it was any person with information who had the right, such person became known as a common informer. This rule of the common law extended to statutory offences unless the statute creating the offence negatived or limited the right. The right was a general one and applied to all prosecutions where the offence charged was one against the public in general.”
The public policy underpinning the right was explained over a century ago by Palles C.B. in Kenealy v O'Keeffe4as follows: “The prosecutor, as one of the public, puts the criminal law in motion, not for his own private profit, but to procure the infliction of punishment for an offence against the public of which he is one.”
The Attorney General
Prior to Independence, all minor and many indictable offences were prosecuted by individual members of the Royal Irish Constabulary Force, in accordance with their duties as police officers, but acting as common informers. Generally speaking, the Attorney General played little or no part.5However, following the establishment in 1922 of the Irish Free State, the *248 Attorney General was given specific responsibility for the representation of the public, enforcement of law and punishment of offenders. Section 9 of the Criminal Justice (Administration) Act 1924 (the “1924 Act”) is of particular relevance and provided as follows:
- (1) All criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General of Saorstát Eireann.
- (2) Save where a criminal prosecution in a court of summary jurisdiction is prosecuted by a Minister, Department of State, or person (official or unofficial) authorised in that behalf by the law for the time being in force, all prosecutions in any court of summary jurisdiction will be prosecuted at the suit of the Attorney General of Saorstát Eireann.
The effect of s.9 of the 1924 Act on the pre-existing rights of a common informer to bring a private prosecution of a criminal offence was a central issue in Wedick v Osmond & Son. The plaintiff—an inspector of the Pharmaceutical Society of Ireland-acting as common informer, prosecuted the defendants for selling a product known as “Osmond's Sheep Dip” (a product “sold for the destruction of vermin” which apparently contained enough arsenic to kill 1,500 people), without, inter alia, knowing the purchaser, keeping the appropriate records and employing a suitably qualified manager. The defendants claimed that their conviction was erroneous in law
and the relevant District Justice stated a case to the High Court. The defendants contended that, having regard to s.9 of the 1924 Act, the summonses should have been issued and the complaints brought at the suit of the Attorney General and could not be legally heard or entertained at the suit of Mr Wedick. In its 1935 decision, the High Court found that s.9 was not inconsistent with the pre-existing right of a common informer to prosecute in certain cases. The court held that the phrase “official or unofficial”, as employed in s.9(2) of the 1924 Act, included a common informer. Thus, in relation to prosecution of a criminal offence in a court of summary
jurisdiction, the Attorney General was the prosecutor of last resort and could only prosecute in those cases which otherwise would not be prosecuted.
Bunreacht na hÉireann
Article 30.3 of the 1937 Constitution provides:
All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose.
It fell to the Supreme Court in the seminal case of State (Ennis) v Farrell8to interpret the effect of Art.30.3, having regard to the provisions of s.9 of the 1924 Act, on the right of a common informer to prosecute an indictable offence not triable summarily. There it was claimed that in the absence of statutory authorisation to a private prosecutor subsequent to the coming into force of the 1937 Constitution, the private prosecution in question could not be initiated or entertained by the court. The facts were that a District Court summons was issued on foot of a complaint by a Mr Crean, as common informer, charging a Mr Ennis with an offence under the Larceny Act 1916. When the matter came before the District Court, counsel for Mr Ennis claimed that the District Court had no
jurisdiction, in circumstances where the alleged offence was an indictable one and having regard to the provisions of s.9(1) of the 1924 Act. Counsel for Mr Crean contended that, notwithstanding the provisions of s.9(1) of the 1924 Act, the rights of a common informer were preserved and the court had jurisdiction to hear the case and to take depositions. Having heard submissions, the District Court decided that depositions could be taken in the case but that there was no power to proceed further or to return Mr Ennis for trial unless the Attorney General took over the conduct of the proceedings. Following an application by Mr Ennis, the High Court granted a conditional order of prohibition in circumstances where the District Court had fixed dates for the taking of
depositions. Mr Justice McLoughlin in the High Court delivered a judgment making the conditional order absolute. In his view, the District Justice was not “… entitled to proceed upon an investigation which, if it established a prima facie case, must result in a prosecution on indictment unless the complaint is at the suit of the Attorney General”. Mr Crean appealed this decision to the Supreme Court.
Clear language to abolish the right
In allowing the appeal, Ó Dálaigh C.J. had the following to say in relation to the effect of Art.30.3:
“The Court, in my opinion, should require clear language to abolish the valuable right of private prosecution. Not alone is there no such language here, but the plain and ordinary meaning of Section 3 is that it is leaving existing rights of private prosecution undisturbed.”
The Supreme Court found nothing,
“… elsewhere in the Article showing an intention to disturb a right which on the passing of the Constitution was not only well established but which was (and is) rightly regarded as a salutary check in the rare case of failure of wisdom on the part of such a high Constitutional officer as the Attorney General. Indeed, as those who have held that office can affirm, the existence of this power of private prosecution, far from being an embarrassment to the
Attorney General, has not infrequently been of value where an Attorney General was being left in doubt as to the reliability of a complainant”. The Supreme Court also clarified the precise role of a private prosecutor in relation to a prosecution on indictment, having regard to s.9(1) of the 1924 Act, holding that:
“The only limitation on the right of the private prosecutor is that a prosecution on indictment must be conducted by the Attorney General: s.9, sub-s.1, of the Act of 1924. As a consequence, the private prosecutor may conduct the prosecution thus far, i.e. up to the receiving of informations and the order for return for trial. Thereafter the Attorney General becomes dominus litis.”
“Cases against bank officials blocked”
On September 2, 2011, the Irish Times reported, under the above headline, that three private criminal prosecutions brought by a solicitor and property owner against two bank officials and a solicitor employed by the bank were the subject of orders of prohibition granted by Mr Justice Charleton.13According to the report, the individual in question had applied to the District Court which issued three summonses charging the accused with perjury allegedly committed in evidence given to the High Court in earlier proceedings brought by the bank against the private prosecutor. According to the report, the High Court decided that the charges may have been
brought in good faith but were brought in error. Significantly, there does not appear to have been any argument before the court in relation to the entitlement, or otherwise, of an individual, acting as common informer, to bring private prosecutions in the light of legislative changes since the decision in State (Ennis) v Farrell.
Preliminary investigation abolished
When the Supreme Court delivered its decision in the State (Ennis) v Farrell, the practice in the District Court was to hold a preliminary investigation in order to determine if sufficient grounds existed for the sending forward for trial of a person accused of an indictable offence. However, the practice of holding a preliminary investigation was effectively abolished upon the coming into force of the Criminal Justice Act 1999 (the “1999 Act”). The 1999 Act set out amendments to the pre-existing Criminal Procedure Act 1967 (the “1967 Act”). The term “prosecutor” is now defined by s.4 of the 1967 Act (as substituted by s.8 of the 1999 Act) in the following terms:
- In this Act, “the prosecutor” means, in relation to an offence—
(a) in Part IA and Section 13, the Director of Public Prosecutions and
(b) in Part II and III, other than Section 13—
(i) the Director of Public Prosecutions,
(ii) a person prosecuting the offence at the suit of the Director of Public Prosecutions, or
(iii) a person authorised by law to prosecute the offence.
Section 4A of the 1967 Act (as inserted by s.9 of the 1999 Act) provides:
- Where an accused person is before the District Court charged with an indictable offence, the Court shall send the accused forward for trial to the court before which he is to stand trial (the trial court) unless—
(a) the case is being tried summarily,
(b) the case is being dealt with under section 13, or
(c) the accused is unfit to plead.
2. The accused shall not be sent forward for trial under sub-section (1) without the consent of the prosecutor.
3. Where the prosecutor refuses to give a consent required under sub-section (2) in relation to an indictable offence, the District Court shall strike out the proceedings against the accused in relation to that offence…
The 2013 position
In Kelly & Anor v District Judge Ann Ryan,14one of the key questions the High Court had to consider was the extent, if at all, to which the right of a private prosecutor to prosecute an indictable offence had been affected by the provisions introduced by the 1999 Act and the abolition of preliminary examinations in the District Court. The facts giving rise to the prosecutions which were referred to in the Irish Independent article of July 28, 2013 are unusual, to say the least. On March 5, 2012, an individual, as common informer, swore informations before the respondent judge on foot of which summonses were issued against a current and a former bank employee
alleging offences under s.6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (the “2001 Act”). The summonses in question were issued shortly after demands had been served by the bank on companies of which the common informer was a director and shareholder. The demands sought the repayment of sums exceeding €25 million, following which a receiver was appointed by the bank to the companies concerned. The summonses against each applicant alleged that in a meeting with the common informer (now private “prosecutor”) and his accountant on February 17, 2012, the bank staff falsely represented that the bank was “prepared to continue
a process” engaged in between the bank and the relevant company whereby that company would be “enabled to trade normally”. The private prosecutor claimed that this constituted a criminal offence on the part of the bank staff who were given leave by the High Court to seek judicial review of the District Court judge's decision to issue the summonses in question. The relevant
offence was an indictable one, having regard to s.6 of the 2001 Act, which is in the following
- A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception, induces another to do or refrain from doing an act is guilty of an offence.
- A person guilty of offence under this section is liable on conviction on indictment to a fine or
imprisonment for a term not exceeding 5 years or both.
By the time the application for judicial review was heard before Mr Justice Hogan, the High Court had already granted summary judgment for €20 million in the bank's favour in separate proceedings against the private prosecutor, who was the notice party in the judicial review and had personally guaranteed the liabilities of the relevant companies. The applicants in the judicial review proceedings argued, inter alia, that the right of a common informer to bring a private criminal prosecution of an indictable offence had effectively been abolished by the coming into force of the 1999 Act; that the informations disclosed no criminal offence; and that the
prosecution constituted an abuse of process by reason of an improper motive on the part of the notice party.
“Slender”, “Tenuous” and “Trivial”
In ex tempore comments made by Mr Justice Hogan, the summonses in question were described as “defective”, and in his written judgment of July 9, 2013, Hogan J. held, inter alia, that “… the informations sworn do not point unambiguously to any allegation of a dishonest act or any deception by way of inducement”.16The court also found that “… even taking the charge at its very height, the evidence of dishonesty or inducement seems at best slender and tenuous”. Elsewhere in the judgment, Hogan J. found that “… the subject-matter of the complaint and the evidence led to justify it would appear at first blush to be tenuous – even trivial”. Notwithstanding the foregoing, the High Court refused to quash the summonses in question, holding that it would be “premature” to interfere with a matter which was “so pre-eminently within the discretion of the District Court to examine and consider”. 19In relation to the abuse of process argument, Hogan J. held that the mere fact that the private prosecutor “nurses a private grievance regarding his treatment” by the bank in question “does not in itself mean that the prosecution is tainted by improper motives or malice”.
Echoing the Supreme Court's decision in State v Roddy nearly half a century ago, Hogan J. held that clear and unambiguous language would be required to entirely abolish the right of a common informer. Having looked closely at the term “prosecutor”, as employed in the 1999 Act, Hogan J. had the following to say in relation to the effect of the 1999 Act on the rights of a common informer to bring a private criminal prosecution:
“This special definition of the term prosecutor – with differential definitions for different contexts – as effected by the 1999 Act gives a clear signal that the Oireachtas consciously decided not to abolish the system of private prosecution, even for indictable offences.”
Limitations on the right of a common informer
The rationale for the existence of a common informer's continued right to institute a private criminal prosecution was set out clearly by the court in the following terms:
“[T]he existence of a private prosecutor still acts as an external check against the risk of a rare lapse or oversight on the part of the Director. The commencement of a private prosecution is in effect an appeal from the party who claims that he or she has suffered a private injustice for the public justice envisaged by Article 30.3, so that a prosecution can be brought in the name of the People at the suit of the Attorney General or the Director of Public
Prosecutions beyond the point where the private prosecutor can no longer act. Even if the role of the private prosecutor is far less extensive than was the case prior to 1999, the underlying purpose of the private prosecution is still the same, namely, to draw the public prosecutor's attention to the case with the implicit request that the prosecution be taken over.”
Having carefully analysed the effect of current legislation on the common law right, Hogan J. held that a private prosecutor's right has been severely circumscribed and was now limited to the point where,
“… no further practical steps can be taken by a private prosecutor in relation to the prosecution of an indictable offence beyond the issuing of proceedings since it is at that point that the prosecution comes within the realm of Part 1A of the 1967 Act. It is at this point that the Director enjoys the monopoly as dominus litis”.
In light of the foregoing, it can be said that the long-established common law right of an individual, acting as common informer, to bring a private prosecution even in respect of an indictable offence subsists. However, with regard to an indictable offence triable summarily, the position, as Hogan J.‘s decision makes clear, is that:
“[T]he common informer has the right to institute the prosecution; once the matter comes back before the District Court, the continuation of the prosecution is entirely contingent on whether the Director consents to summary trial or the sending forward of the accused for trial … In the event that the Director has not so consented … then the prosecutions must be struck out.”
As McMahon J. explained in the High Court's decision in People v Roddy: “At common law any person could institute and conduct proceedings in any Court in the name of the King and without leave, and this included both summary proceedings and proceedings for an indictable offence.” The rights of a common informer are, thus, significantly older than our independent State. However, Irish society and its institutions are dramatically different to those of 1851, when the 1851 Act gave statutory recognition to the older common law right of a common informer to bring a private prosecution. We have a modern and professional police force dedicated to investigating criminal activity and crime prevention. We have the offices of the Director of Public Prosecutions
and the Attorney General, backed by professional staff, with statutory and indeed constitutional roles in the prosecution of offences. Other bodies also have the power to prosecute certain types of offences, with such power clearly defined and delineated in statute, rather than deriving from any common law rights. In light of the foregoing, it is questionable whether, and to what extent, there is significant risk of crime going unpunished, but for the intervention of a private individual instituting proceedings as a common informer. It is submitted that any public policy analysis should also take account of the personal toll on a private citizen, and potential damage
to his or her reputation, from being required to attend court as a criminal accused at the instigation, not of the State, but of a fellow citizen. This very tension between having parallel systems by which the wheels of the criminal law can be set in motion was summed up succinctly by Hogan J. in his recent judgment as follows: “One of the difficulties inherent in any system of common informer is that it effectively promotes a system of private criminal justice instead of the public criminal justice that is at the heart of the criminal justice system.” It would certainly be lamentable if such an enduring common law right, even in its circumscribed form, was used
merely to pursue private grievances (e.g. when a commercial relationship unravels) rather than in the service of the public good. The decision in Kelly & Anor v District Judge Ryan is now under appeal to the Supreme Court. A considered decision by the Supreme Court will bring further and very welcome clarity.