The Director Of Public Prosecutions [At The Suit Of Detective Garda Ronan O'Meara] v Evans

[2026] IEHC 216 THE HIGH COURT [2025/383 SS] IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 BETWEEN THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF DETECTIVE GARDA RONAN O’MEARA) PROSECUTOR AND JACK EVANS ACCUSED JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 10th day of April 2026 INTRODUCTION 1. This judgment is given on a consultative case stated referred by Judge Finnegan of the District Court pursuant to section 52(1) of the Courts (Supplemental Provisions) Act 1961. The accused faces a number of prosecutions in Monaghan. The relevant summonses issued from the District Court Office, but the prosecution purported to serve them on the accused in County Armagh by registered post. Both the DPP and the accused are in agreement that this method of service was not appropriate. The accused did not attend at the District Court on foot of the summonses and bench warrants issued. While present in the jurisdiction and facing separate 2 charges in the Dublin Metropolitan District, the accused was arrested on foot of the Monaghan bench warrants and later attended the District Court in Monaghan. The questions raise the issue of whether the manner in which the accused was brought before the District Court deprives the court of jurisdiction or, as contended for by the DPP, the issue of the initial service is moot and the question properly is one of fair procedures. THE BACKGROUND FACTS 2. The procedural history of the issues is set out in the case stated document, and in accordance with well-established principles the court is restricted to a consideration of those facts only. As matters stand, the accused is the subject of four separate prosecutions before the District Court, and these proceedings are concerned with two of those prosecutions. In the first case, which is D.P.P. (at the suit of Garda Ian McDonnell) v. Jack Evans, case number 2019/98453, it is alleged that the accused committed offences contrary to sections 4 and 6 of the Criminal Justice (Public Order) Act 1994 in Castleblaney on the 9 September 2018. In the second prosecution, which is D.P.P. (at the suit of Garda Ronan O'Meara) v. Jack Evans, case number 2020/222147, it is alleged that the accused committed three charges of dangerous driving, as well as driving without a driving licence and driving without insurance, at various locations in the area of Castleblaney, Co Monaghan on the 30 August 2020. The summonses on foot of which the prosecutions are brought give an address for the accused of Crossmaglen, Armagh. 3. In terms of the first charge, the procedural history is that the summonses having issued were made returnable to the sitting of the District Court in Monaghan on the 18 November 3 2019. The summons was served by registered post on the 1 July 2019. The accused failed to appear before the court and a bench warrant was issued for his arrest. 4. In relation to the second charge, having issued, the summonses were made returnable to a sitting of the District Court at Monaghan on the 6 December 2021. The matter was adjourned for hearing to the 21 March 2022 at which point the accused was not present. The case was then adjourned to the 23 March 2022 for hearing, when again the accused was not present, and the matter was adjourned to 11 July 2022 for hearing. When the accused did not attend on the 11 July 2022 a bench warrant issued for his arrest. 5. The accused was arrested in an unrelated matter in Dublin Metropolitan District on the 25 October 2023. The Monaghan bench warrants were executed, and the Dublin District Court made an order remanding the accused to Monaghan District Court on the 1 November 2023. 6. On the 1 November 2023 the matter was adjourned to the 9 December 2023, and the accused attended before Monaghan District Court. The second charge was adjourned to the 13 March 2024 for hearing. On that date, counsel for the accused submitted in relation to both the first and second charges that the summonses before the court were unlawful because they had been served on the intended defendant outside the jurisdiction by registered post, when the District Court Rules did not provide for service to be effected in that way. The submission made was that the court did not have jurisdiction to deal with the matter and hence even if the defendant did appear, the court was deprived of jurisdiction. 7. In reply, the presenting inspector noted that service by registered post was how all summonses were served on intended defendants who resided outside the jurisdiction. It was 4 suggested to the court that if leave to serve outside the jurisdiction was required for all cases involving residents of Northern Ireland this would result in delays in the court list. In any event, it was submitted that the appearance by the accused or his legal team cured any service issue. At that point, it appears there was some discussion of whether a consultative case stated should be referred to the High Court. The matter was then adjourned from time to time to allow the parties to take instructions. 8. On the 7 October 2024, the accused requested the court to state a consultative case to the High Court and this appeared to be agreed to by the inspector. The matter was then adjourned from time to time to allow the question to be formulated. On the 10 February 2025, the presenting inspector indicated that the DPP was of the opinion that the issue of service was moot and the matter was adjourned to the 13 February 2025, when a solicitor from the DPP's office appeared in the District Court to oppose the application to state a case. 9. The DPP submitted that the court had not been deprived of jurisdiction to deal with the case in circumstances where jurisdiction comes from the issue of the summons and is not affected by service. On the particular facts of the cases, the DPP submitted that bench warrants had issued for the accused and the matter was live before the court, rendering the question of how service of the summons was effected moot. In those circumstances, it was argued there was no need for a case stated as there was no issue of law arising that needed to be clarified. The point was made that stating a case in relation to the broader issue of service by registered post outside the jurisdiction was dealing with a hypothetical, as was any issue in relation to the operation of section 80 of the Criminal Justice (Mutual Assistance) Act 2008. 5 10. In the circumstances the learned District Judge considered it was appropriate to state a case for the opinion of High Court and the following questions were set out in the consultative case stated dated the 10 March 2025: (i) Can service of a summons alleging a criminal offence be lawfully effected by posting the summons to the address of the accused outside the jurisdiction by registered post? (ii) If the answer to question (i) is no, will the unlawfulness and service always be cured by the attendance of the accused regardless of the circumstances? (iii) If the answered question (i) is no, is the court deprived of jurisdiction in the proceedings by reason of a defect in service? THE ARGUMENTS The position of the Director of Public Prosecutions 11. The DPP’s position, in essence, was that whatever difficulty could have arisen in relation to the manner in which the summons was served, the accused’s attendance before the District Court on foot of the bench warrants rendered that issue moot. According to the DPP when the accused arrived before the District Court on the 11 November 2023 he did so because he was bound to appear on foot of his bail bond. 12. The DPP accepts that the summonses were served in a manner that did not accord with the District Court Rules, which limit the service of summonses to a place within the State. The DPP also noted that no use had been made of the Criminal Justice (Mutual Assistance) Act 2008 (the 2008 Act) or any other legal mechanism to serve the proceedings out of the jurisdiction. However, the DPP urged the court that this was a matter that did not need to be 6 dealt with and did not arise on foot of the factual scenario giving rise to the case stated. That argument was predicated on the proposition that the jurisdiction of the court was not dependent on the valid or proper service of a summons, but that the jurisdiction was invoked by the application for and issue of a summons. Insofar as the accused argued that the manner of service of the summonses went to the jurisdiction of the District Court, the DPP stated that this argument was incorrect and erroneous in law and that any argument derived from the judgment of the High Court in Payne v. Judge Brophy [2006] 1 IR 560 was misconceived. 13. The DPP urged that the proper approach to the jurisdictional issue was found by reference to the decisions in DPP v. Judge O'Neill [2015] IEHC 688 and DPP v. Nolan [1990] 2 IR 526. In that regard, the DPP emphasised the importance of the Courts (No. 3) Act 1986 (the 1986 Act). The DPP noted that, prior to the 1986 Act, the older authorities emphasised that it was the making of a complaint that conferred jurisdiction on the court, and that the summons was merely the method of getting the accused before the court. It was said that this goes back to the origins of the jurisdiction to try matters summarily and was reflected in the decision of the Supreme Court in AG (McDonnell) v. Higgins [1964] IR 374. 14. The DPP went on to observe that, since the commencement of the 1986 Act, the authorities consistently have also held that the service of the summons is not a jurisdictional issue. In the context of the 1986 Act, it is the issuance of the summons that invokes the jurisdiction of the court. The complaint is still made to the District Judge when the matter comes before him or her, but that is not what invokes jurisdiction. 15. The DPP therefore went on to emphasise the distinction between the invocation of the relevant jurisdiction and the question of service. In that regard, it was said that service is bound 7 up with a method by which the attendance of the accused is procured before the court, and that there is an established and consistent line of authority that an error or legal invalidity in the issue of service does not deprive the court of its substantive jurisdiction. 16. By reference to the decision in D.P.P. (Ivers) v. Murphy [1999] 1 IR 98 it was stated that an illegality in the process by which the attendance of the accused is sought to be procured does not affect the jurisdiction of the District Court. The DPP argued that none of the qualifications referred to in DPP (Ivers) or concerns expressed as warranting a concern about the jurisdiction of the court arose in this case. 17. In emphasising that service goes to the fairness of the process rather than jurisdiction in a strict sense in this case it was noted that the accused had previously appeared before the court and had instructed solicitors there can be no question that the defence were on notice and aware of the proceedings. 18. Rather than proceeding to state a case to the High Court, the DPP suggested that the correct procedure that should have been observed was that set out by Clarke J. (as he then was) in Payne v. Judge Brophy [2006] 1 IR 560. 19. The final substantial matter addressed by the DPP related to the issue of a bench warrant. In that regard, the DPP highlighted that in Stephens v. Governor Castlerea Prison [2002] IEHC 169, Finlay Geoghegan J. held that the jurisdiction of the District Court to issue a bench warrant for an accused person was not confined to the circumstances set out in O. 22 of the District Court Rules, but rather derive from the substantive jurisdiction it enjoyed in 8 criminal proceedings, which necessarily gave it the power to compel the attendance of the accused. 20. In all of the circumstances, the DPP urged that the answer to question 1 was that the question did not arise, but the answer clearly was “no”. In relation to the second question, the answer was that in the circumstances of the case the attendance of the accused had cured any defect in the service of the summons; and, third, the question of whether the court was deprived of jurisdiction in the proceedings by reason of any defect in service should be answered “no”. The position of the accused 21. In relation to the question of the service of summonses, the accused, in common with the DPP, took the view that the District Court Rules 1997 and in particular Order 15, rule 7 only provides for the service of summonses within the State. In relation to service of summonses outside the State, the accused identified section 80 of the 2008 Act as providing the only potential mechanism for a process of serving summonses outside the State. 22. The accused disagreed with the DPP in relation to the contention that section 80 of the 2008 Act cannot apply to the service of summonses issued under section 1 of the 1986 Act because those are issued by a court office and not a judge and that the reference to a "court" under the 2008 Act must refer to a judge. The accused takes the view that if the DPP considered that section 80 is not available in 1986 Act summonses cases, then the appropriate procedure is to apply for a judicial summons under the 1851 Act so that they may be served under the 2008 Act along with the notice of rights. In any event, the accused agreed with the DPP that the Gardaí were not entitled to adopt a policy of serving summonses in a manner which was not provided by law. 9 23. In relation to the status of the bench warrants issued in this case, the accused takes the position that, whatever inherent power the District Court may have to issue a bench warrant, that power cannot be exercised in a way which, as they put it, subverts section 80 of the 2008 Act. The argument was that s. 80 of the 2008 Act expressly forbids the issue of a warrant in default of appearance where a summons is served under that section. In that regard, the accused seeks to distinguish the current situation from the situations that applied in the authorities relied on by the DPP. 24. In addition, the accused disputes the DPP's reliance on the case law which addresses the question of the manner in which the attendance of the accused is procured does not go to jurisdiction. Relying on observations by McKechnie J. in Whelton v. District Judge O'Leary [2011] 4 IR 544 the accused suggests that his situation falls within the category of cases where the deliberate and conscious violation of constitutional rights deprive the District Court of jurisdiction. The accused seeks to draw an analogy between the current situation and that in Trimbole where the extradition of the applicant had been sought by the Australian authorities. As An Garda Síochána were awaiting the making of an order under the Extradition Act 1965, Mr Trimbole was arrested under section 30 of the Offences against the State Act 1939 on the ground that he was illegally in possession of firearms. However, it appeared the real reason for the arrest was so that he would be available for extradition as soon as the order was made. In upholding the decision of the High Court, Finlay CJ observed:- "The Courts have not only an inherent jurisdiction but a positive duty: (i) to protect persons against the invasion of their constitutional rights; (ii) if invasion has occurred, to restore as far as possible the person damaged to the position in which he would be if his rights had not been so invaded; and (iii) to ensure as far as possible that persons acting on behalf of the Executive who consciously 10 and deliberately violate the constitutional rights of citizens do not for themselves or their superiors obtain the planned results of that invasion.” 25. In those circumstances, the accused submitted that the case falls squarely within the category of cases which warrant the refusal of jurisdiction for the following reasons as set out in the written submissions: a) The summonses were served unlawfully; b) The process for serving summonses abroad have been set out by the Oireachtas and ignored by the Gardaí; c) The process described by the Oireachtas forbids the issue of a warrant when the summons is not obeyed; d) The unlawful service has been compounded by the issue of bench warrants which were unlawful; e) The accused’s attendance was not voluntary but procured on foot of improperly issued bench warrants; f) The defiance by the gardai of the statutory process is not only in this case but appears to be a general practice. DISCUSSION 26. There is no dispute between the parties, and the court agrees, that the accused could not properly be served by registered post outside the jurisdiction. Significantly, it is clear from the facts set out in the consultative case stated that there was no attempt to effect service of the summonses on the accused by use of the 2008 Act. However, there is no indication that as a matter of fact the prosecution considered the use of the 2008 Act. In those premises, I am not 11 satisfied to approach the case stated on the basis that there was an attempt to avoid or undermine the provisions of that Act. The facts clearly establish that the Gardaí, incorrectly, relied on service by registered post as a matter of convenience rather than in response to any perceived difficulty with the processes in the 2008 Act. The court in those circumstances does not consider it necessary or appropriate to engage in a discussion of whether the provisions of the 2008 Act are available in connection with the service of summonses of the type in issue in this case. That is a matter that will have to be addressed in a case that raises the issue directly. 27. The starting point both logically and sequentially is the question of how the jurisdiction of the District Court is invoked. On their face the summonses in this case issued out of the Central Administration and Processing Unit, an office of the Court Service designated for the purpose of receiving applications under section 1(3) of the 1986 Act. 28. In DPP v. Nolan [1990] 2 IR 526, the defendant had appeared before the District Court on the 2 April 1987, in relation to Road Traffic Act offences. The offences were alleged to have been committed on the 6 September 1986, and the summonses issued on the 27 January 1987 pursuant to the 1986 Act procedure. The District Justice held that that no complaint had been made within six months of the alleged offences as required by s. 10(4) of the Petty Sessions (Ireland) Act 1851 and struck out the summonses. The defendant had argued that the issue of the summonses in January 1987 did not constitute the making of a complaint, and that the making of the complaint only occurred when the matter first came before the District Court in April 1987. 29. In the High Court, Hamilton P. noted that the 1986 Act was passed on the 19 December 1986, and that the 1986 Act provided that proceedings in the District Court in respect of an 12 offence may be commenced by the issuing, as a matter of administrative procedure, of a summons by the appropriate office of the District Court. The effect of s. 1(7)(a) of the 1986 Act was that the application for a summons must be made within six months from the time when the cause for a complaint arose. In those premises, the learned President found that the District Court had jurisdiction to hear and determine the matter. 30. The Supreme Court found that the President was correct, with Finlay C.J. holding, at page 545: “I am satisfied that the provisions of s. 1, sub-s. 1 of the Act of 1986 which provide for the commencement of proceedings in the District Court in respect of an offence is inconsistent with any interpretation other than that the legislature intended by this statute to vest in the District Court jurisdiction to try an offence the proceedings in which were commenced in accordance with the statutory provisions in the Act. … I am satisfied that only one meaning can be given to sub-s. 6 of s. 1 and that is that a summons duly issued under the Act of 1986 shall have the same force and effect as a summons issued pursuant to s. 10 of the Act of 1851 which was, of course, the law in force immediately before the passing of the Act of 1986. That was, having regard to the relevant provisions of the Courts of Justice Act, 1924, and the Courts (Supplemental Provisions) Act 1961, to vest in the District Court the jurisdiction to try summary offences.” 31. In DPP v District Judge O’Neill [2015] IEHC 688 Noonan J. reviewed a number of the authorities that followed DPP v Nolan. In that case, the Revenue Commissioners had applied 13 for the issue of summons on the 10 December 2013 pursuant to the 1986 Act, as amended. On the 16 January 2014, the summons was served on the accused, Garuda Ltd, at a Dublin address, where they were accepted by a person at that address. However, between the date of the issue of the summonses and their service the company had changed their registered address from the Dublin address to an address in Tipperary. In light of that development the company’s solicitors invited the Revenue Commissioners to seek to have a fresh summons issued. At a hearing the company argued that when the case first came before the Dublin District Court – on the 29 January 2014 – the company had a registered address in Tipperary and the court therefore did not have jurisdiction to hear the case. 32. Having considered the authorities, Noonan J. stated, at para. 27, that whilst “it remains true to say that under the 1986 Act procedure for issuing a summons, the complaint continues only to be made on the return date, the issuing of the summons has the effect of commencing the proceedings thereby invoking the relevant jurisdiction.” (my emphasis). Hence, the court found that the District Court should not have declined jurisdiction. 33. In those premises, it is clear that the issue of the summons in this case using the procedure in the 1986 Act had the effect of invoking the jurisdiction of the District Court. From that moment the District Court prima facie had jurisdiction to deal with the charges. The next question is whether the issues around service had the effect of depriving the court of jurisdiction. In that regard, the case law is very clear that the manner in which an accused is brought before the court will generally not affect jurisdiction save in exceptional circumstances. 14 34. Accordingly, the Supreme Court in A.G. (McDonnell) v. Higgins [1964] I.R. 374, prior to the changes brought about by the 1986 Act, found, as put by Kingsmill Moore J.: “It is equally clear that if a person is in Court, voluntarily or involuntarily, legally or illegally, an information or complaint may be made then and there “ore tenus” to the Justice, accusing such person of having committed a summary offence, and, if the information contains the necessary ingredients, the person may at once by charged with the offence …” 35. In DPP (Ivers) v. Murphy [1999] 1 I.R. 98, the accused had been arrested and charged with larceny offences. She was brought to the District Court where evidence of arrest, charge and caution was given by way of certificates pursuant to s.6(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997. The accused’s solicitor raised issues about the certificates and the absence of what were contended to be necessary. The District Court stated a case to the High Court, and on appeal Keane J. in the Supreme Court stated that: “It has been repeatedly pointed out that, as a general rule, the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been brought before the court by an illegal process. ... Some qualifications to that general principle may be noted in passing. First, evidence obtained from the accused person during the course of a detention which proves to be unlawful, whether because of a defective warrant or for some other reason, may subsequently be excluded as inadmissible by the court of trial. Secondly, where the process by which the person is brought before the court involves a deliberate and conscious violation of his constitutional rights, of 15 which the most graphic example is The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550, the court may be justified in refusing to embark upon the hearing. There may also be cases in which a question is raised as to the validity of the detention in garda custody of a person brought before the District Court, in which case the appropriate course is to remand the person concerned, enabling him, if he wishes to do so, to apply to the High Court for an order of habeas corpus.” 36. The Supreme Court reiterated that approach in Whelton v. District Judge O’Leary [2011] 4 IR 544. In that case, the applicant had sought to challenge his conviction on theft charges, inter alia, on the basis that he had not been charged “forthwith” following a re-arrest pursuant to section 10(2) of the Criminal Justice Act 1984. It was argued that this failure deprived the District Court of jurisdiction to try him. 37. Fennelly J. emphasised the line of authority which held that it was immaterial how the attendance of an accused was secured so long as he was present in the District Court at the material time, and which was articulated in cases such as State (AG) v. Fawsitt [1955] IR 39, and DPP (Ivers) v Murphy [1999] 1 IR 98, expressed a “settled principle.” He went on to state at para 43: “It follows that, applying these principles to the present case, even if there had been a defect in the way in which the gardaí arrested, detained and charged the applicant, in particular, if there had not been an intention to charge him “forthwith” after his arrest, the jurisdiction of the District Court to try him would not have been affected, in the absence of a deliberate and conscious 16 intention to deprive the applicant of his constitutional rights such as what Keane J described as the “graphic example” of the Trimbole case.” 38. In his judgment, at para.101, McKechnie J. gave a number of non-exhaustive examples of where a preceding process could impact on jurisdiction: “(a) where there has been a deliberate and conscious violation of one's constitutional rights. Keane J. in Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218, at pp. 228 and 229 said:- “[W]here the process by which the person is brought before the court involves a deliberate and conscious violation of his constitutional rights, of which the most graphic example is The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550, the court may be justified in refusing to embark upon the hearing; (b) where the relevant conduct is of such a nature as to outrage, insult or defy the legal or constitutional authority or status of the court. McCarthy J. in Keating v. The Governor of Mountjoy Prison [1991] 1 I.R. 61 at p. 66, said:- “If cases arise where the circumstances of arrest or such as to amount to an affront to the constitutional role of the courts, then the District Justice will refuse to proceed with the matter and will discharge the person before him.” O'Flaherty J. in Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 I.R. 98, at p. 104 seems to have inferred the same; (c) where the validity of a preceding event, for example an arrest, is an essential ingredient to ground a charge upon which an accused person stands before the court, see s. 49 of the Road Traffic Act 1961, as amended, and Director of Public Prosecutions v. Forbes [1994] 2 I.R. 542.” 17 39. Accordingly, it is clearly established that (a) the jurisdiction of the District Court in relation to the charges faced by Mr. Evans was invoked when the District Court office issued the summons. That, and not service, was the event that gave rise to jurisdiction; and (b) the DPP is correct in the assertion that the initial method of service of the summonses is largely irrelevant as that was not the process that led to Mr. Evans appearing before the District Court in Monaghan. The appearance was procured by reason of the accused entering the necessary recognisance on foot of the execution of the bench warrants in the State. The question is whether that appearance was procured by some deliberate or conscious violation of his rights or otherwise constituted such an affront to the court that the District Court should have declined jurisdiction. In that respect there are two matters to be considered: first, how the District Court should have approached the arguments made by the accused; and, second, in that context, the approach to be adopted to the bench warrants. 40. The proper approach to be taken in the District Court when an argument arises in relation to jurisdiction is set out in Payne v District Judge Brophy [2006] 1 I.R. 560. In that case, the applicant sought to challenge a conviction in the District Court for offences contrary to the Diseases of Animals Act 1986. The summons that had been served on the applicant was not dated, did not have the name of the District Court clerk on it, and did not show the date when the application for the issue of the summons had been made by the District Court office. 41. At para. 16 of his judgment Clarke J. distinguished between defects that went to the jurisdiction of the court and defects that were purely procedural in nature, noting: “It would seem that a defect which goes to the jurisdiction of the court (such as the fact that no proper complaint had been made under the former procedure or that no proper application had been made under the new procedure) cannot be 18 cured by the attendance of the defendant. Similar consequences would seem to flow from a situation where the summons itself is fundamentally flawed. However, technical or procedural defects concerning the manner in which the attendance of the accused was secured before the court are capable of being cured by attendance.” 42. It can be noted that for the purposes of this case stated, the authorities referred to above make clear that jurisdiction of the District Court was invoked by the issue of the summons. In that regard, no complaint has been made that the summonses themselves are invalid or unlawful. The authorities also make clear that the manner in which the attendance of the accused before the District Court has been procured does not displace jurisdiction save in exceptional circumstances. Importantly, in that regard, the judgment in Payne highlights that it is incumbent on the District Judge to enter into an inquiry when an issue in relation to the validity of a summons arises, and, as set out at para. 18 of the judgment, the following matters should be considered: “1. Whether the defects complained of are such as to go to the jurisdiction of the court or are merely technical or procedural in nature; 2. where it is possible that the defects complained of may be sufficiently fundamental to go to the jurisdiction of the court then it will be necessary, in accordance with Duff v. Mangan [1994] 1 I.L.R.M. 91, to hear evidence to enable the District Judge to ascertain whether the court has jurisdiction; 3. if, having heard such evidence as may be necessary, the District Judge concerned is satisfied that the court has jurisdiction then it will be necessary for the court to consider whether any measures (such as an 19 adjournment) may be necessary to render the proceedings fair in light of any technical defects identified.” 43. In that case, Clarke J. was satisfied that the extent of the defects in the summons gave rise to a requirement for an inquiry by the District Judge. Importantly, Clarke J. held that the presence of the defendant did not cure the defect, because the court had not conducted the necessary prior inquiry as to the nature of the defect and hence could not have been satisfied that the defects were merely technical or procedural. 44. Using the approach set out in Payne, informed by the authorities on the 1986 Act and the question of how the attendance of an accused has been procured, it appears clear that prima facie the District Court had jurisdiction to deal with the charges. The issue of service outside the State was indeed a hypothetical in the sense that the accused was not present in court on foot of that process. Instead, in light of the arguments made by the accused and informed by the authorities that were summarised in cases such as Whelton, the learned District Judge should have conducted an inquiry as to determine how the issues properly should be characterised and whether the issue and execution of the bench warrants had the effect of depriving the court of jurisdiction. 45. In that final regard, the District Court will have regard to the fact that the Court of Appeal considered the general nature of bench warrants in People (DPP) v. Morgan [2022] IECA 148. As noted by Edwards J. at para. 40, a warrant may be issued on the basis of a statutory provision, or a provision in the Rules of Court, conferring a power to do so, or in the absence of a statutory/rules based power, “on the basis of an underlying and inherent jurisdiction vested in every criminal court to control its own process, including securing the 20 attendance of a party required to answer a charge before the court in the context of which it is seised.” 46. The Court of Appeal cited with approval the analysis of Finlay Geoghegan J in Stephens v. Governor of Castlerea Prison [2002] IEHC 169 where the learned judge stated: “The jurisdiction of the District Court to issue a bench warrant is not based on O. 22 above but appears to be part of the inherent jurisdiction of the Court which flows from the jurisdiction to try the offences in question and also to release an accused on bail by recognisance to appear before a subsequent sitting of the Court. I find support for this proposition in the judgement of Gavin Duffy P. and The State (Attorney General) v. Judge Roe [1951] I.R. 172 where at p.193 he stated:- ‘If a defendant, duly summoned, does not appear, I think he can be arrested on a bench warrant issued by the Circuit Court Judge. Mr Serjeant Hawkins says:- “Also it seems clear, that wherever a statute gives to any one justice of the peace a jurisdiction over any offence ... it impliedly gives a power to every such justice to make out a warrant to bring before him any person accused of such offence ... for it cannot but be intended, that a statute giving a person jurisdiction over an offence, doth mean also to give him the power incident to all courts, of compelling the party to come before him.” (Hawk. P.C., 8th ed., vol. 2, book 2, c.13, s.15). Chitty's Criminal Law, 2nd ed., 1826, vol. 1, c. 8, pp. 337-8, says:- “Wherever the king grants an authority of oyer and terminer, the power to issue process is incidentally given; for as there can be no inquiry respecting offences, without the presence of the party, wherever the power 21 is entrusted of determining the former, there must also be authority to compel the latter. For the same reason, justices of the peace, whenever they are authorised to inquire, hear, and determine, may thus compel the defendant to appear; and, indeed, this is expressly declared by the words of their commission. The same observations apply, of course, to all magistrates whatsoever, who are invested with the power to try offenders.’” Davitt P. in The State (Attorney General) v. Fawsitt [1955] I.R. 39 at p. 52 considered that the above passages ‘contain a clear recognition and acceptance of the principle that where a statute confers upon a Court a substantive jurisdiction to try a person charged with a criminal offence it impliedly confers likewise the adjective or ancillary jurisdiction necessary to compel that person to attend the Court to take his trial.’ I would respectfully agree with the above statements of principle. Order 22 is not, in my view, intended to limit such inherent jurisdiction. Hence I consider that a District Judge having issued a bench warrant under O. 22, r. 2 which includes a reference to both an extraditable and a non-extraditable offence has an inherent jurisdiction to issue a warrant referring only to the extraditable offence, upon being informed that the accused may be in in another country. If he did not he would have no way of compelling the attendance of an accused to face trial for an extraditable offence. 22 Accordingly, I conclude that District Judge O'Sullivan did have jurisdiction on 21st July, 1999 to issue a warrant for the arrest of the applicant referring only to the criminal damage charge. Further that any defects in the recitals to the warrant issued are not of such fundamental nature on the particular facts of this case to justify a finding of illegality of the current detention of the applicant.” 47. Significantly, the arguments made by the accused in this case all stem from the initial issues relating to service. While arguments are made that those matters in effect contaminated the subsequent bench warrants there has been no direct challenge to the validity of the bench warrants or their execution, which occurred in October 2023. In those premises, I cannot proceed on the basis that either the issuing or execution of the bench warrants are invalid. Presumptively those matters were valid, although it remains open to the accused to make arguments regarding their effect before the District Court. 48. I agree with the DPP that there is a useful analogy between the issue of the bench warrants in this case and the position that arose in Cavlan v. Judges of the Northern Circuit (unreported High Court, Feeney J., 31 July 2013). In that case, the applicant sought to quash, inter alia, arrest warrants that had been issued by the Circuit Court when the applicant had failed to attend court in accordance with the requirements of a bail bond. Shortly after entering his bail bond the accused was arrested and remanded in custody in Northern Ireland. When the proceedings came before the Circuit Criminal Court – but while the accused remained in custody in Northern Ireland – his solicitor sought to have an early trial date fixed. The DPP sought a bench warrant, and the judge considered that the warrant might assist in procuring the accused’s attendance. Counsel for the accused objected that issuing a warrant was unfair on the basis that his client’s non-attendance was because he was in custody outside the State. 23 49. In the circumstances Feeney J. considered that the issue of the bench warrant was reasonable and proportionate. Importantly the court considered that there was no issue in relation to the jurisdiction of the judge to issue a bench warrant, the only issue was whether the discretion was exercised lawfully. 50. Having regard to the foregoing, the court emphasises that these are not judicial review proceedings in which the court has been asked to quash a decision made by the District Court. The learned District Judge in effect has paused the proceedings before him in order to seek to have certain matters clarified by this court. This court is tasked with responding to those questions only on the basis of the facts as found, but on the basis on providing assistance, see the discussion by O’Malley J. in O’Shea v. West Wood Club Limited [2015] IEHC 24. 51. It seems to the court that the DPP is generally correct in the observation that the intervention of the bench warrants in this case had the potential to render moot any need to consider the issue of service outside the jurisdiction. That is all the more pertinent where there was no evidence before this court that the provisions of the 2008 Act were considered by the prosecution, and accordingly, any question of whether there was a intention on the part of the prosecution to avoid their application did not arise for consideration. 52. In those premises, the first question posed by the District Court – “Can service of a summons alleging a criminal offence be lawfully effected by posting the summons to the address of the Accused outside the jurisdiction by registered post?” – does not arise on the facts of this case stated and does not need to be answered. However, it should be noted that the answer clearly is “no”. 24 53. The second and third questions – “If the answer to question (i) is no, will the unlawfulness in service always be cured by the attendance of the Accused regardless of the circumstances?” and “If the answer to question (i) is no, is the court deprived of jurisdiction in the proceedings by reason of a defect of service?” – are also moot if the predicate is reliant on the question of the mode of service set out in question (i). 54. However, as explained by the Supreme Court in the cases discussed above, the general proposition is that the manner in which the attendance of an accused is procured generally does not deprive the court of jurisdiction to proceed to hear the case. That general proposition is qualified by the caveat that in certain cases jurisdiction may have to be declined if the manner in which the attendance is procured constitutes a deliberate and conscious violation of the constitutional rights of the accused or otherwise constitutes a serious affront to the processes of the court. It would be unusual for the execution of bench warrants and the consequent attendance of the accused before the court to reach that threshold, but this is a matter that will have to be determined by the District Judge in question on foot of the actual circumstances presenting and the arguments that are made. In this case, the court considers that the proper course of action would be for the District Court, if requested by the accused or if considered necessary, to conduct an inquiry addressed to the matters identified in Payne v. District Judge Brophy [2006] 1 IR 560, in order to determine if the issues raised are sufficiently fundamental to deprive the court of jurisdiction. 25 55. In the premises the court will answer the questions as follows: i. Does not arise in this case, but no. ii. Unlawfulness in service will not always be cured by the attendance of the accused regardless of the circumstances: certain circumstances that are sufficiently fundamental may deprive the court of jurisdiction, but that determination in the first instance is a matter for the court of trial. iii. see answer to (ii), this is a matter to be determined in the first instance by the court of trial. 56. As this judgment is being delivered electronically, the court will list the matter for final orders on Tuesday, the 21 April 2026 and will hear any arguments that the parties wish to make if a determination is required in relation to the costs of this case stated.