High Court of Northern Ireland: Girvan J, January 2005

A complaint was laid before a Justice of the Peace for the Petty Sessions area of Belfast and Newtonabbey alleging that the defendant had driven a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it exceeded the proscribed limit. On 28 April 2004 a Justice of the Peace validly issued a summons ordering the defendant to appear at the Laganside Court House on 2 September 2004. On 10 June the Police tried to serve the summons on the Defendant at his home, but he was not in. The Police left a note informing him a summons had been issued and left a contact number. The applicant attended the police station on Sunday 13 June 2004 where the summons was given to him. The applicant argued before the resident magistrate that the summons had not been validly served as Section 7 of the Sunday Observance Act (Ireland) 1695 provides that 'no person upon the Lord's day commonly called Sunday shall serve…any writ, process, warrant, order, judgement or decree…but that service… shall be void to all intents and purposes whatsoever, and the… persons so serving…shall be liable to the suit of the party grieved, and to answer damage to him for doing thereof'. The resident magistrate drew a distinction between the complaint and the summons. The applicant was aware of the existence of the complaint and the summons when he arranged to collect it. The applicant appealed, repeating the argument. The Crown argued that due to a fundamental change in public attitudes to Sunday observance, section 7 should be construed narrowly. The list of 'writs etc' all pointed to matters having a legal significance in themselves in that they encompassed or were capable of encompassing a judicial act or finding. The issue of a summons is purely administrative, being a means of informing the defendant of the complaint. The Crown argued that the point taken was without merit and was entirely technical and since no prejudice was caused to the defendant it was an abuse of the process. Further the Crown argued that the court should exercise its discretion and should to decline to grant any relief. The Court ruled that Section 7 of the 1695 Act remains in force and its continuing force had been recognised in certain recent legislation. Section 7 was drawn in very wide terms. A summons was clearly a process. The giving of the document to him in the police station on Sunday was clearly service of the document. Accordingly section 7 had been breached. Although the point was a technical one and might appear to lack merit, procedural provisions that give rise to jurisdiction must be properly complied with. The resident magistrate's decision was quashed and he could not proceed with the hearing of the complaint until a fresh summons had been served on the defendant.

This neutral citation for this case is [2005] NIQB 6. The editors are very grateful to Professor Norman Doe and to Terence Dunlop of the Northern Ireland Courts Service for providing a copy of the judgment.

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(2005) 8 Ecc LJ 234