Criminal Judicial Review
Policing Pleadings (Formulating grounds)
Niall Nolan BL
18 May 2011
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AP v DPP [2011] IESC 2
On the 25th of January 2011 four judgments were delivered by a five member Supreme Court
in the above case. All dismissed AP’s appeal in terms chilling, but also of some assistance to
practitioners from a drafting perspective.
The appeal concerned a very net issue namely, whether a fourth trial per se of the appellant
on indecent assault charges before Waterford Circuit Criminal Court constituted an abuse of
process, a breach of the applicant’s right to a fair trial. If the judicial review application had
been differently pleaded, and indications as to how this could have been done can be read in
the judgments, one is left with an impression that the chances of success may have been
greatly improved.
The Chief Justice delivered a judgment concurring with the judgments of Denham and
Fennelly JJ but which dealt in substance with procedural issues. It would seem the Court had
been waiting for some time to express it’s dismay at loose pleading and consequent
incoherence on appeal. The Chief Justice’s judgment was delivered in the following terms:
“I have had the advantage of reading the judgments of Denham J. and Fennelly J. I
agree with those judgments and the orders which they propose. In agreeing with those
judgments which address all the issues arising for decision in this appeal I express no
view on any other matter referred to in the course of the appeal. There is a
procedural aspect to this appeal on which I propose to make some brief observations.
In the course of her judgment Denham J. refers to the scope of the Court’s
jurisdiction in judicial review proceedings as being confined to the grounds specified
in the order granting leave to bring judicial review proceedings, or any additional
grounds arising from an amendment to that order.
Because there has been a not insignificant number of appeals in which there was a
lack of clarity and even confusion as to the precise issues which were before the High
Court I propose to make a number of observations in that regard.
1
Judicial review constitutes a significant proportion of the cases which come before
the High Court and before this Court on appeal. A party seeking relief by way of
judicial review is required to apply to the High Court for leave to bring those
proceedings and can only be granted such leave on specified grounds when certain
criteria, required by law, are met. In most cases the applicant must demonstrate that
he or she has an arguable case in respect of any particular ground for relief and there
are also statutory provisions setting a somewhat higher threshold for certain specified
classes of cases.
In the interests of the good administration of justice it is essential that a party
applying for relief by way of judicial review set out clearly and precisely each and
every ground upon which such relief is sought. The same applies to the various reliefs
sought.
It is not uncommon in many such applications that some grounds, and in particular
the ultimate ground, upon which leave is sought are expressed in the most general
terms as to the alleged frailties of the decision or other act being impugned, rather in
the nature of a rolled up plea, and alluding generally to want of legality, fairness or
constitutionality. This can prove to be quite an unsatisfactory basis on which to seek
leave or for leave to be granted particularly when such a ground is invariably
accompanied by a list of more specific grounds.
Moreover, if, in the course of the hearing of an application for leave it emerges that a
ground or relief sought can or ought to be stated with greater clarity and precision
then it is desirable that the order of the High Court granting leave, if leave is granted,
specify the ground or relief in such terms.
There has also been a tendency in some cases, at a hearing of the judicial review
proceedings on the merits, for new arguments to emerge in those of the applicant
which in reality either go well beyond the scope of a particular ground or grounds
upon which the leave was granted or simply raise new grounds.
The court of trial of course may, in the particular circumstances of the case, permit
these matters to be argued, especially if the respondents consent, but in those
circumstances the applicant should seek an order permitting any extended or new
ground to be argued. This would avoid ambiguity if not confusion in an appeal as to
the grounds that were before the High Court. The respondents, if they object to any
matter being argued at such a hearing because it goes beyond the scope of the
grounds on which leave was granted, should raise the matter and make their
objection clear. Although it did not arise in this particular case, it is also
unsatisfactory for objections of this nature to be raised by the respondents at the
appeal stage when no objection had been expressly raised at the trial or there is
controversy as to whether this was the case.
In short it is incumbent on the parties to judicial review to assist the High Court, and
consequentially this Court on appeal, by ensuring that grounds for judicial review are
stated clearly and precisely and that any additional grounds, subsequent to leave
being granted, are raised only after an appropriate order has been applied for and
obtained.”
2
So, clarity and greater precision is now called for in what must be comprehensive grounds for
review, with the quid pro quo of course being that the standard must apply to statements of
opposition. Any deviation from the parameters of review which these grounds set out must be
accompanied by an Order of either a leave judge or the Judge hearing the application or any
Judge dealing with a motion to enlarge grounds should same be brought prior to the hearing.
In practice at the criminal bar there are quite often time pressures involved. However rushed
pleadings, generalised pleas and inadequate affidavit(s) (for the full factual and evidential
context must be set) may doom an otherwise stateable application to failure.
Per Hardiman J. (p.5):
“In too many judicial review cases, it will be found that little attention has been paid
to the absolute necessity for a precise defining of the grounds on which relief is
sought until the case is actually before the Court. In my view, this case furnishes an
extreme example of this unfortunate tendency. The delay in the case and the
consequent anxiety to the defendant are an obvious feature but they are not relied
upon at all in the grounds and are only developed in the Solicitor’s replying affidavit.
There is no attempt to define the precise level of anxiety and the effect if any on other
family members, as was done in D.S. v. The Judges of the Cork Circuit and the DPP
[2008] 4 IR 379.
If delay was an obvious feature of the case, the letter demanding money was the most
dramatic feature of the case. But this was not mentioned either until the solicitors
replying affidavit does not feature at all in the Statement of Grounds. There is clearly
scope to argue that such a development may affect the prosecution’s ability to
proceed to a further trial: see M.G. v. DPP [2007] 2 IR 738. The defendant was
aware of this letter some years prior to the first trial and one must assume that his
legal advisers were aware of it also. Nothing was done to bring it into the case in a
proper way and put the other side on proper notice of it.”
Prohibiting Prohibition
Delay & The District Court
In Cormack & Farrell v. The DPP (Unreported Supreme Court, 2/12/08) the central issue
concerned the effects of delay on the summary prosecution of criminal offences in
circumstances where there has been a failure to execute bench warrants expeditiously. Kearns
J. (as he then was), delivering the unanimous judgment of the Court, found no basis for a
different test applying in District Court cases than that which applied to trials on indictment.
The robust views expressed crystallised thusly:
3
“I would be strongly of the view that courts should not act as legislators to frame a
subjective limitation period for the prosecution of criminal offences, even offences of
a summary nature, and should in every case where delay is established conduct the
balancing exercise indicated in Barker v Wingo”
Context for this view however, one which crucially stresses firstly that Gardai must act and
be seen to act diligently, conscientiously and expeditiously in the execution of warrants and
that time periods in summary cases within which delay in this regard will become
“blameworthy” would be far less than trial on indictment, matters which could of course in
the “balancing exercise” result in the granting of prohibition, is provided by the following
passages:
“I am satisfied that the judgments of the various High Court judges to which I have
referred emphasise the obligation on the gardai to execute bench warrants promptly.
By way of example it is not open to the gardai to take no active steps or simply wait
for the wanted person to gratuitously fall into their laps by being arrested in relation to
some other offence. Equally, the issuing of a warrant need not trigger a national
manhunt, nor need it involve the deployment of totally disproportionate time and
resources in an effort to execute the warrant. Nor should an applicant be granted relief
where he himself has contributed to the delay in executing the warrant by furnishing
false particulars of his identity or address or by engaging in other forms of deceit and
evasion to frustrate the gardai in the execution of their duties. Any judge who has sat
in Cloverhill Courthouse to deal with bail applications on a Monday will be well
aware that a huge amount of garda time is taken up, presumably to the detriment of
other police work, in searching out and apprehending individuals some of whom have
a long history of bench warrants for failing to honour the terms of their bail.
In the context of delay therefore, the legal position in relation to the execution of
bench warrants may be simply stated. There is an obligation on the Garda Siochana to
execute same promptly or within a reasonable time. A failure to do so may amount to
blameworthy prosecutorial delay. However, members of the gardai can not
automatically be assumed to be in default where immediate execution of warrants
does not occur, bearing in mind the multiple other duties and obligations requiring to
be performed by them. They may encounter all sorts of difficulties when
endeavouring to execute bench warrants which are brought about by deceit and false
information given to them. Nonetheless, it must be the case that a point in time will
arise where the continuing failure to execute a bench warrant will amount to
blameworthy prosecutorial delay sufficient to trigger an enquiry whether an
applicant's right to an expeditious trial has been compromised to such a degree as to
warrant prohibition. It is impossible to be more specific as to what timeframe for the
execution of a warrant should obtain other than to stress that warrants must be
executed promptly or at least within a reasonable time. For reasons set out below, that
permissible timeframe must be one of shorter duration where summary proceedings
are concerned.
DELAY IN SUMMARY PROSECUTIONS
4
Counsel for the applicants in these cases has argued that the amount of delay which
may be tolerated for the prosecution of a summary offence is considerably less than
that which might be allowed for a serious or complex charge. He submitted that the
whole philosophy underpinning the summary disposal of criminal offences is the
public interest and that of alleged offenders in having such matters disposed of as
expeditiously as possible. I accept the validity of this contention. It follows that delay
in summary proceedings is less to be tolerated than in other cases. Counsel for the
applicant has, however, gone further and argued that where the court, as in DPP v.
Arthurs [2000] 2 ILRM 363 , believes the delay to be excessive, there is then no
requirement on the court to conduct any form of balancing exercise between the
community interest in having crimes prosecuted and the applicant's right to an
expeditious trial.
Any consideration of this submission may usefully begin by having regard to what
was stated by Powell J. in delivering the unanimous opinion of the US Supreme Court
in Barker v. Wingo 407 US 514 [1972]. That court there emphasised that a defendant's
constitutional right to a speedy trial could not be established by any inflexible rule but
could be determined only on an ad hoc balancing basis in which the conduct of the
prosecution and that of the defendant are weighed. As Powell J. stated:"A balancing test necessarily compels courts to approach speedy trial cases on an ad
hoc basis. We can do little more than identify some of the factors which courts should
assess in determining whether a particular defendant has been deprived of his right.
Though some might express them in different ways, we identify four such factors:
length of delay, the reason for the delay, the defendant's assertion of his right, and
prejudice to the defendant.
The length of the delay is to some extent a triggering mechanism. Until there is some
delay which is presumptively prejudicial, there is no necessity for enquiry into the
other factors that go into the balance. Nevertheless, because of the imprecision of the
right to a speedy trial, the length of delay that will provoke such an enquiry is
necessarily dependant upon the peculiar circumstances of the case. To take but one
example, the delay that can be tolerated for an ordinary street crime is considerably
less than for a serious, complex conspiracy charge."
The latter part of this citation was adopted with approval by Finlay C.J. in The
Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 . The importance of the
reference is to show that the courts both in the U.S. and in this jurisdiction do not
simply drop a time guillotine on the prosecution of summary offences but rather
emphasise instead that delay in minor cases is less to be condoned or tolerated. It is of
some importance that Powell J. did not outrule a balancing test in this context.
Counsel's main submission on the effect of delay on summary prosecutions is almost
entirely based upon a decision delivered by O'Neill J. in DPP v. Arthurs [2000] 2
ILRM 363 . In that case the High Court prohibited the trial of an applicant in a case of
summary proceedings for assault where a delay of two years and three months had
passed from the date of the alleged offence to the date of the hearing. The case had
5
been adjourned on three occasions in the District Court because of the length of court
lists on dates when the case was scheduled to be heard. O'Neill J. expressed the view
that a delay of this magnitude constituted "an unwarranted invasion of the accused's
constitutional right to an expeditious trial" and prohibited the trial without conducting
any form of balancing exercise and notwithstanding the absence of evidence of
prejudice.
While counsel has argued that this decision has received a measure of approval from
this court in Maguire v. DPP [2004] 3 IR 241 , it is only fair to point out that the
decision in that particular case concerned a bail application. A quite different view
was taken by this court in Devoy v. Director of Public Prosecutions (Unreported,
Supreme Court, 7th April, 2008) where, in a case of alleged prosecutorial delay, this
Court disapproved the judgment in Arthurs , noting that the judgment did not set out
any criteria to determine what might constitute an exorbitant delay in the context of
prosecution of summary offences. I would be strongly of the view that courts should
not act as legislators to frame a subjective limitation period for the prosecution of
criminal offences, even offences of a summary nature, and should in every case where
delay is established conduct the balancing exercise indicated in Barker v Wingo . This
is the approach replicated in the Irish cases which have applied similar, if not
identical, criteria in this jurisdiction; see PM v. Malone [2002] 2 IR 560 ; PM v.
DPP [2006] 3 IR 172 ; McFarlane v. DPP (No. 2) (Unreported, Supreme Court, 5th
March, 2008).
In this context I see no basis for applying a separate legal regime to summary
prosecutions than that which arises in the case of indictable offences. Obviously,
however, it follows from everything already said that delay will more rapidly become
blameworthy and delays of lesser magnitude will be seen as more likely to be
intolerable where summary proceedings are concerned.”
A Matter of Life and Death
A particularly striking and strident judgment on prohibition in the District Court, but
one with far broader implications, was delivered in the case of Sparrow v. Minister for
Agriculture & Judge Hamill (Unreported Supreme Court, 29th of January 2010). Ms.
Justice Denham, delivering the unanimous judgment of the Court described the legal
question involved in the following terms (p.7):
“In essence the applicant seeks to prohibit his summary trial in the District
Court on the basis that there is medical evidence to the effect that his health is
so precarious that proceeding with the trial would put his life at risk.”
The medical evidence advanced on behalf of the applicant was summarised as
follows:
“16. Thus the medical situation is that the applicant has had heart disease
since 1992. He is under the care of a G.P. and a cardiologist, Dr. Moore. The
6
applicant has had an angiogram and a pace-maker implanted. He has been
advised to avoid stressful situations. Dr. Moore's reports were before Judge
Hamill, who also heard Dr. Moore's oral evidence. Dr. Moore gave evidence
that any further court appearances could result in the sudden death of the
applicant and that there was a serious risk of a fatal incident occurring if the
applicant were to give instructions during the trial.”
But there was other evidence in the case which Denham J. then outlined (p.10):
“17. However, there was other evidence also before Judge Hamill. This
included the following:(a) The applicant continues to practice as a veterinary surgeon, although in a
limited fashion;
(b) the applicant drives a car;
(c) the applicant attends court in his professional capacity to give evidence;
and
(d) the applicant has instructed his legal team in these and other proceedings
relating to the charges over the years since the charges in the District Court
were served.”
District Judge Hamill having considered the evidence was not satisfied that there were
such exceptional circumstances as would bar the District Court from continuing to
hear the case. Dismissing Mr. Sparrow’s appeal from Mr. Justice Sheehan’s refusal to
grant prohibition, the appeal laid emphasis on the significance of the District Judge’s
role at first instance in these matters and set out once again the test for prohibition
cases and indicated with reference to the PT decision, how the test could be satisfied.
In these regards she said the following (p.11):
“Judicial Decision
18. The appeal is based on the medical evidence and the misconception that
Judge Hamill had no choice in his decision once the medical evidence was
given on behalf of the applicant. This fundamental error undermines the whole
appeal. In a situation such as arose before Judge Hamill, where medical
evidence is given on behalf of one party in a case, the court is not bound to
comply with that evidence. The duty and responsibility of the judge is to hear,
consider and assess all the evidence and then to make a judicial
determination. The requirement that the judge make a judicial decision is not
trumped by medical evidence on behalf of one party. The decision to be made
is that of the judge, on all the evidence, it is not a medical decision for the
applicant's cardiologist.
Exceptional circumstances
7
19. It is only in cases where there are exceptional circumstances that a court
will intervene and make an order prohibiting a prosecution and it will do so
only if there is a real or serious risk of an unfair trial. The burden rests upon
an applicant to show that arising from the facts of the case there is a real or
serious risk of an unfair trial. The applicant rests this application upon his
medical condition, submitting that his health is so precarious that proceeding
with the trial will put his life at risk.
20. There is no doubt that the applicant has a heart condition, indeed he has
had it since 1992, and it is serious. Nor is there any doubt that stress is bad
for persons with heart disease. Further, most people will find that attending
court as a defendant is a stressful situation which does give rise to anxiety. I
have no doubt that even though the applicant gives evidence in court as an
expert witness the experience of being a defendant is and would be stressful
for him. However, the fact that a person has heart disease, and that stress is
bad for such persons, and attending court is stressful, does not mean that such
a person may not be prosecuted.
21. I would distinguish the circumstances in this case from those in P.T. v.
Director of Public Prosecutions where the decision to prohibit the trial was
not based on the medical evidence alone. That decision was grounded on the
cumulative effect of several factors. Those factors were: (a) it was a case
being brought after many years, with the consequential difficulties in such
cases; (b) that accused was an elderly man, being in his 87th year, and (c)
there was evidence of that accused's ill health.
22. I have read the medical reports, and the account of the oral evidence given
by Dr. Moore before Judge Hamill. I am satisfied that no error was made by
Judge Hamill, nor by the High Court, in their approach taken to the medical
evidence.”
Missing evidence
It is rare indeed for our Superior Courts to intervene on the grounds that some item of
missing evidence would inevitably render a trial unfair. However two cases where
prohibition was granted were Edward Keogh v. The DPP [2009] IEHC 502 and R C v
DPP [2009] IESC 32.
The latter case concerned the non-availability of telephone records. The High Court
and refused prohibition but in allowing the appeal Ms. Justice Denham stated the
following (para.27 et seq.):
“27. The prejudice alleged by the appellant is that the telephone records of the
complainant, if available, would have corroborated his account of his contact with the
complainant between May, 2001 and September, 2001. Such telephone records would
confirm that the complainant regularly phoned the appellant and sent him texts
during that period, and that this would corroborate his oral evidence. Thus they go to
the core issue of the case, the credibility of the appellant and the complainant.
8
28. The delay in prosecuting the case had a significant effect. It appears reasonable in
the circumstances that the appellant took the view that no prosecution was
proceeding, after the interviews, where he denied the allegations, in the autumn of
2001. He was not charged until January, 2004. The book of evidence is dated 1st
March, 2004. It is at that time that the relevance and the importance of the telephone
calls and records became apparent. It appears that Vodafone keeps records for a
maximum of three years. While it may have been possible to obtain the records in
March, 2004, it is noteworthy that there was a delay of 17 months between the request
for records in June 2005 to Vodafone's reply in November, 2006.
29. There was a significant delay between the initial interviews by the gardaí of the
appellant and the commencement of the proceedings. In the grounding affidavit of
Martin O'Carroll, solicitor for the appellant, Mr O'Carroll deposes that the appellant
believed, as a result of attending with the gardaí and denying the allegations, that the
matter had been dropped and that he was surprised and upset when almost three
years later the matter was proceeding. Without the necessity of determining the truth
of this hearsay evidence it illustrates that a consequence of the delay by the
prosecution is that it would be reasonable for the appellant to have taken no step in
relation to a prosecution during that time from 25th October, 2001 to January,
2004, and indeed the service of the book of evidence in March, 2004.
30. In general the absence of phone records is not a reason to prohibit a trial. It is the
particular circumstances of this case, including the approach taken in the
investigation, and the questions asked and answered as to mobile phone use, together
with the failure of the prosecution to seek the phone records of the complainant, while
obtaining those of the appellant, which create circumstances where there is a real risk
of an unfair trial.”
Keogh concerned missing cctv in the context of an investigation and prosecution
which alleged that the Applicant carried a black bag in which was a sawn off shotgun
and cartridges. The applicant denied all knowledge of the bag/shotgun.
Mr. Justice Birmingham granted the relief sought stating (para.17):
“17. Like MacMenamin J., I believe that the key test is reasonableness. In a situation
where Gardaí had a report that three men were engaging in suspicious activity
outside Elenora's public house, I believe that it would have been reasonable to
expect that the Gardaí would have sought out CCTV footage from that public house
and would have done so at an early stage. I think there is a reasonable probability
that the suspicious activity which gave rise to the complaint would have been
captured on film. If the three individuals were shown on film, it appears very likely
indeed that it would have been possible to identify which of the three men, if any,
had the black bag. If that evidence was available, then that was evidence of
enormous significance. That being so, in summary, the position is that material that
was potentially highly relevant to the question of guilt or innocence was readily
available but was not sought until too late. The delay in seeking out the footage
occurred, notwithstanding that the solicitor for the applicant had disclosed a keen
interest in CCTV footage within eight days of the arrest. A case, where valuable
objective evidence might have been available, and as a matter of probability was
9
available, will instead, if it proceeds, depend on the testimony of a single garda
witness. That is not a satisfactory state of affairs. In these circumstances, I believe
that this case is one of those rare ones where a trial should be prohibited.”
Missing cctv was at the centre of the most recent unsuccessful Supreme Court appeal
in this area in which Mr. Justice O’Donnell delivered the unanimous judgment. In
Paul Byrne v. DPP (Unreported 17th of November 2010) the Applicant sought to
prohibit his District Court prosecution on assault and criminal damage charges arising
following a disturbance in a city centre shop.
In examining and applying the decided case-law, O’Donnell J held the position and
approach of the Superior Courts to applications of this kind to be the following (p.14):
“In my view, having considered the decided cases, the position has now been
reached where it can be said that other than perhaps the very straight forward
type of Braddish case, it would now require something exceptional to
persuade a court to prohibit a trial. This in my view is in accordance with
principle. The point was made in McFarlane v DPP & Special Criminal
Court [2007] 1 IR 134 that the fact that an applicant was unsuccessful in
judicial review proceedings did not detract from the power and duty of a court
of trial to assess the case developed at the trial. At paragraph 34 of his
judgment Hardiman J, (with Murray CJ, Geoghegan and Fennelly JJ agreed)
stated that the court of trial "will be able to assess whether there is indeed a
prima facie case at the appropriate stage. More than that it will be able to
assess, on the evidence as it actually develops, whether there is any unfairness
to the applicant, incapable of remedy by the trial court, for which the
prosecution is responsible. Its powers in this regard are wholly unaffected by
the result of the present applicant. "
This in my view, is an important observation. The constitutional right the
infringement of which is alleged to ground an applicant's entitlement to
prohibit a trial, is the right to fair trial on a criminal charge guaranteed by
Articles 38 and 34 of the Constitution. The manner in which the Constitution
contemplates that a fair trial is normally guaranteed, is through the trial and if
necessary appeal processes of the Courts established under the Constitution.
The primary onus of ensuring that that right is vindicated lies on the court of
trial which will itself be a court established under the Constitution and obliged
to administer justice pursuant to Article 34. It is in my view therefore, entirely
consistent with the constitutional order, to observe that it will only be in
exceptional cases, that Superior Courts should intervene and prohibit a trial,
particularly on the basis that evidence is sought to be adduced( in the case of
video stills), or is not available (in the case of CCTV evidence itself).
The modern law is, I consider, set out and synthesised in a judgment of
Fennelly J in Savage v Director of Public Prosecutions [2009] 1 IR 185 , in a
passage with which Hardiman J expressed agreement:
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"(a) It is the duty of the prosecution authorities, in particular An Garda
Síochána, to preserve and maintain all evidence, which comes into their
possession, having a bearing or potential bearing on the issue of guilt or
innocence of the accused. This duty flows from the unique and investigative
role of the police force (see Braddish v DPP [2001] 3 IR 127 ). The extent to
which that duty extends to seeking out evidential material not in the possession
of the gardaí does not arise in the present case (but see Dunne v Director of
Public Prosecutions [2002] 2 IR 305 ).
(b) The missing evidence in question must be such as to give rise to a real
possibility that, in its absence, the accused will be unable to advance a point
material to his defence. This is, like the garda obligation to retain and
preserve evidence, to be interpreted in a practical and realistic way and "no
remote, theoretical or fanciful possibility will lead to the prohibition of a
trial."(See Dunne v Director of Public Prosecutions [2002] 2 IR 305 at page
323).
(c) The fact that the prosecution intends to rely on evidence independent of the
missing evidence at issue in order to establish the guilt of the accused does not
preclude the making of an order of prohibition. In Dunne v Director of Public
Prosecutions [2002] 2 IR 305 , the prosecution intended to rely on a confession. This
did not defeat the applicant's complaint of the failure of the gardaí to take
possession of a video tape covering the scene of the robbery.
(d) The application is considered in the context of all the evidence likely to be
put forward at the trial. The court will have regard to the extent to which
aspects of the prosecution case are contested. In Bowes v Director of Public
Prosecutions [2003] 2 IR 25 , the fact that the motor car in which the
applicant was alleged to have been travelling had been lost by the gardaí was
insufficient, when the applicant did not contest the fact that he was driving it
and the charge related to possession of drugs found in the boot of the car. In a
second applicant's appeal in Bowes , the court had regard to the
"circumstantial" character of the prosecution case of dangerous driving. In
McFarlane v Director of Public Prosecutions [2006] IESC 11 [2007] 1 IR
134 , the existence of photographic evidence of the missing fingerprints was
highly material to the complaint that the original items had been lost by the
gardaí.
(e) The applicant must show, by reference to the case to be made by the
prosecution, in effect the book of evidence, how the allegedly missing evidence
will affect the fairness of his trial. Hardiman J said in McFarlane v Director
of Public Prosecutions [2006] IESC 11 [2007] 1 IR 134 at page 144, that:
"In order to demonstrate that risk there is obviously a need for an applicant to
engage in a specific way with the evidence actually available so as to make the
risk apparent."
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(f) Whether the applicant, through his solicitor or otherwise makes a timely
request to the prosecution for access to or an opportunity to have the article
issue expertly examined may be highly material. In Bowes V Director of
Public Prosecutions [2003] 2 IR 25 the "very belated" request was critical to
the refusal of relief. On the other hand in Dunne v Director of Public
Prosecutions [2002] 2 IR 305 , no request was made until some five months
after charge, and long after there was any possibility of producing a video
tape. In that case, however Hardiman J stated at page 325:"There is … a responsibility on a defendant's advisers, with their special
knowledge and information, to request material thought by them to be
relevant."
However a suspect or an accused person will be unable to make a timely
request, if the gardaí have destroyed or parted with possession of the material.
Thus, they must give consideration to the likely interests of the defence
performing against such decisions.
(g) The essential question, at all times, is whether there is a real risk of an
unfair trial. (See Scully v Director of Public Prosecutions [2005] IESC 11,
[2005] 1 IR 242 ). The court should focus on that issue and "not on whose
fault it is that the evidence is missing, and what the degree of that fault may
be". (See Dunne v Director of Public Prosecutions [2002] 3 IR 305 at page
322)."
Applying these principles to the present case, it seems to me clear that this is
not a case in which it can be said that the alleged missing evidence is central to
the case being made by the prosecution. Unlike Braddish and Ludlow , the
CCTV evidence here is not the basis of the identification of the accused. On
the contrary, there was direct evidence from witnesses placing the accused at
the scene. Indeed, he was arrested there by Garda Enright and his colleague,
who both witnessed him being abusive to Mr Hamid. It can also be said, with
some justice, that the Applicant has wholly failed to engage with the specifics
of the case made. This is particularly telling in the present case, since it is by
no means self-evident how, as a matter of reality, the missing evidence could
assist the case the accused wished to make. It is certainly not for the Court to
hypothesise as to what possible version of the case the CCTV's footage might
support.
It is also relevant in my view, that the trial court retains the discretion to
exclude the still photographs if the court comes to the conclusion that
producing them in the absence of the original video evidence would be unfair
to the accused. This was the course taken by the Circuit Court in the first
Braddish trial, and which was considered by Fennelly J in CD , and is a
specific example of the power, and indeed duty, of the trial court adverted to
by this Court in McFarlane. That is not to say that this evidence ought to be
excluded in this case: as Fennelly J observed in CD, that is entirely a matter
for the trial judge. But the fact that such a course is at least open to a trial court
12
is, in my view, highly relevant to the calculation which this Court is asked to
make as to whether or not to grant the exceptional remedy of prohibition.
Assuming that a trial judge did consider that the admission of the still
photographs would be unfair, then the exclusion of that evidence would be a
situation which was entirely in favour of the accused, since the absence of the
CCTV evidence would have resulted in the exclusion of part of the
prosecution case, and therefore and by definition, matters thought to be
inculpatory of the accused. Given the existence of the power to exclude the
still photographs it would then be necessary for the accused to speculate, that
even then, the absence of the CCTV evidence could still unfair because the
absent footage might nevertheless support a positive case to be made by the
accused, which would exculpate him. On the evidence so far before this Court,
that is a speculation which can properly be described as both remote and
fanciful, and the absence of any real engagement of the accused with the facts
of this case comes in to even starker relief.
It is furthermore relevant to this assessment that the evidence of the gardaí as
to the steps taken to secure the evidence has not been challenged either by
replying affidavit, or by cross-examination. On that uncontested evidence
therefore, this is not a case of inaction or incompetence on the part of the
gardaí. Garda Enright sought to copy the CCTV footage. He was told that
facility was not available. That evidence is unchallenged. He did obtain what
was available at the time in the form of photographic stills. When more
information was sought, the gardaí returned and sought to make a copy but at
that time the disk had been overwritten. Significantly, there was no evidence
of the state of technology in 2004 (which is the relevant date). We do not
know if technology was readily available to make copies in the absence of a
facility to burn a CD and we do not know how disruptive such process might
have been, or how soon after the incident it would have been necessary to seek
to make such a copy. Finally, in this regard, while the majority decision in
Dunne establishes that no clear and definite distinction can be made between
those cases in which evidence has been obtained by the gardaí and then
mislaid or released, and those where the evidence has not been obtained in the
first place, that does not mean that that distinction is not relevant to the
assessment the Court must make. The duty to seek out and preserve evidence,
is one which must, on all the authorities, be interpreted realistically. In that
context, the fact the gardaí have never had the particular evidence in their
possession, but made efforts to obtain it, is relevant in the assessment of the
case made. To adopt the words of Geoghegan J in Mitchell , it would in my
view be going too far to prohibit this trial on the grounds the gardaí ought to
have taken some unspecified steps at an unspecified time to secure more by
way of evidence than Garda Enright had. Therefore, while there is no doubt
that the Applicant's solicitors acted promptly in seeking the CCTV evidence,
as well as the statements and other pieces of documentary evidence, it appears
to me that the substance of the Applicant's case has not advanced much
beyond the "no video - no prosecution " case stigmatised by Dunne J in Fagan
13
, and accordingly, in my view, Murphy J was entirely correct to reject the
applicant's claim.”
What is however perhaps most notable about this judgment is the somewhat radical
suggestion that there might have to be a reconsideration of whether judicial review is
in fact the appropriate remedy in missing evidence and delay cases and indeed if on
consideration of such application the appropriate test is whether, on the balance of
probabilities there is a real risk of an unfair trial. In this regard O’Donnell J. states at
the end of his judgment:
“I am however struck by the fact that the summary trial of this relatively minor
offence has now been delayed for more than six years simply because of this
challenge. In the event, the order of this case is that the trial should proceed, a
trial which will necessarily be conducted in accordance with constitutional
fairness. But it can scarcely be doubted that the trial of such an incident after
the passage of such a lengthy period of time is less than the ideal envisaged by
the Constitution when it contemplated courts of local and limited jurisdiction.
Furthermore, if it should happen that the trial was hampered or even frustrated
by the unavailability or absence of witnesses due to the passage of time, then
that will fall some way short of the administration of justice to which the
public are entitled.
It is a salutary reminder of the impact of the statements made in the judgments
of the Superior Courts that two lines of authority which have occupied a
substantial part of the judicial review lists of the High Court and the lists of
this Court on appeal - delay and missing evidence cases - can be traced back to
a single observation, itself not apparently the subject of any detailed argument,
in The State (O'Connell) v Fawsitt [1986] IR 362 , to the effect that judicial
review is the appropriate remedy where a challenge is brought( in that case on
grounds of delay) to an anticipated trial on indictment in the Circuit Court.
Whether that is necessarily so, and whether indeed, the appropriate test for
prohibition of a pending trial in a court established under the Constitution is
the existence, on the balance of probabilities, of a "real risk " of an unfair trial,
are matters which might deserve further consideration. It is noteworthy
however that the Court in The State (O'Connell) v Fawsitt , expressly limited
its decision to the case of trial on indictment. The judgment accepted that in
the case of summary trials, it may well be that an equal or alternative remedy
would be an application to the judge to dismiss on grounds of delay, which
was the issue in that case, but the same must apply in the case of an allegation
of unfairness created by the absence of crucial evidence. Such a course is not
however without its own difficulties, as the decisions on abuse of process in
the neighbouring jurisdictions have shown, (see: Valentine, Criminal
Procedure in Northern Ireland , 2nd Edition 2010, page 285 ff), and the
decision in DPP v O'C 2006 IESC 54 makes it clear that no abuse of the
process challenge can be brought, at least in the Central Criminal Court. But
the application for dismiss of a summary trial contemplated in The State
(O'Connell) v Fawsitt would not only be an alternative remedy, but one
14
which, at least potentially, would be both speedier and cheaper than an
application to the High Court for judicial review. It might also have the not
insignificant benefit of permitting the issue of the fairness of the trial to be
determined by the court of trial of the particular case, a court with unrivalled
experience of similar trials and indeed the court with the Constitutional
obligation of ensuring a fair trial. In these days of vastly
overburdened lists in the Superior Courts and enormous demands on the
public purse, it is perhaps desirable to give consideration to whether at least in
the case of summary proceedings such an application would not be a
preferable procedure.”
Anything can happen. The reach of exceptional circumstances
In M.G. v. DPP (Unreported, Supreme Court, 31st January 2007) that court
unanimously held that where a complainant had delayed making a criminal
complaint as part of a process of threats for financial gain, that this amounted to
"wholly exceptional circumstances" which required the grant of prohibition. Similar
facts resulted in MacMenamin J. also granting prohibition in U v. The DPP [2010]
IEHC 156.
The “abuse of process” category of cases was discussed and dealt with by the
Supreme Court in the case of Higgins v The DPP [2010] IESC 46. That Court refused
relief in a claim brought by virtue of the fact that notwithstanding the fact an accused
had been sent forward on signed pleas in relation to an assault contrary to S.3 of the
Non-Fatal Offences Against the Person Act 1997, the DPP preferred subsequently
the more serious offence of assault causing serious harm. O’Donnell J. observed inter
alia:
“However I cannot accept that clumsiness or lack of forethought or simple
error on the part of the prosecution can, without more, amount to an abuse of
the process. A trial of the Appellant on the s.4 charge could not remotely be
said to be something less than a trial in due course of law as required under
Article 38 of the Constitution. On the contrary, to prevent a trial on the charge
obviously appropriate to a serious incident would be to afford to the people of
Ireland something less than they are entitled to expect from the criminal
justice system.”
Delay & Trial on Indictment
P McC v. The DPP [2011] IESC 9 is the most recent decision from the Supreme
Court on this particular topic. The Applicant faced a charge of having sexual
intercourse with a mentally impaired person contrary to Section 5(1) of the Criminal
Law (Sexual Offences ) Act 2003. He sought to restrain his trial on the grounds of
undue and the case involved the application of the “balancing test”. For present
purposes it suffices, given the recent decision in McFarlane v. Ireland where delays
in the criminal proceedings brought against Mr. McFarlane were found by the
European Court of Human Rights to have breached both Articles 6 and 13 of the
15
European Convention on Human Rights, to consider the remarks made at the end of
the judgment whereat the Court rejected the Appellant’s arguments based on the said
Convention. In this regard Ms. Justice Macken stated:
“It is sufficient for the purposes of the Convention to remark as follows.
The obligation on Irish courts to consider the case law and rulings of the
European Court of Human Rights is clearly set out in law. Under s.2 of the
European Convention on Human Rights Act, 2003 Courts in this
jurisdiction are obliged to interpret and apply statutory provisions and
rules of law, insofar as possible, subject to the rules of law relating to such
interpretation and application, in a manner compatible with the State’s
obligations under the provisions of the Convention. Section 4(A) of the Act
requires courts to take judicial notice of judgments of the European Court
of Human Rights. This Court will, therefore, interpret provisions of national
law concerning the right to a fair trial, for example, in light of the
appropriate articles of the Convention, having regard to relevant case law,
and will generally apply the interpretation of the Convention adopted by
the Court of Human Rights, this principle being subject only to the proviso
that any such interpretation must not be inconsistent with the
Constitution.
It is not possible to glean from the jurisprudence of the Court of Human
Rights that prohibition necessarily follows in any, or all, cases where there
has been excessive blameworthy prosecutorial delay. I am unaware of any
case in which the court has found that the balancing test, which is
prescribed to be carried out within Irish jurisprudence, is an inappropriate,
or unsatisfactory, mechanism by which courts in this jurisdiction evaluate
the rights of the parties. Nor is it evident from the case law that, in the
event there has been found to be excessive culpable delay, the Court is
not entitled, at least as a general rule, in assessing the respective rights,
to have regard also to the right of the public to have serious offences
prosecuted to conclusion.
I am not persuaded that the learned High Court judge misdirected himself
in relation to this aspect of the matter. If he did so, it is a question of pure
law as to whether he applied the correct principles, or not, a matter which
can be cured by this Court. On the basis of the jurisprudence of the
European Court of Human Rights, I am not satisfied that this establishes
that the only effective remedy to be applied, in circumstances such as
those in the present case, is the remedy of prohibition.”
The List
There no longer is no longer any list to fix dates regarding judicial review cases and
once the pleadings are closed the application will be allocated a hearing date and it is
likely that your case will come on for hearing quicker than was previously the
position. However it has been the experience of practitioners that as regards cases
16
listed as “Monday matters”, those cases which it is believed would take no longer
than two hours, given that on Mondays these short judicial review matters are listed
for hearing together with non-jury matters they often are not reached.
Applications to adjourn motions for directions on consent, to strike out motions on
consent with or without costs and Applications to extend time to deliver affidavits or
statement of opposition by consent are dealt with at 10.30 o'clock by the Registrar
in the Court to which the list is assigned.
Once leave has been granted and the proceedings appear in the motions for directions
list in Court 4, Four Courts, often quite an amount of time is allowed respondents,
indeed both sides, to progress matters either by indicating that the application is not
going to be contested or by filing papers in opposition or supplemental papers in
applicant’s cases supporting the claim for relief.
Post AP it may also be anticipated that the motions for directions list, within which
are processed motions to cross-examine and motions for discovery in the judicial
review context, will deal with more applications from both applicants and respondents
to extend their grounds although as noted above, such an application can be made at
the hearing date.
Discretionary Bars to Relief
Such bars include delay, failure to move an application promptly, lack of
candour/failure to disclose relevant facts and of course the existence of an appropriate
alternative remedy. This is not a definitive list, indeed it is unlikely that one could
ever be drawn up. The failure to comply with any such requirement may very well
doom an application to failure, or conversely render an opposition ultimately
unstateable.
To comment on just a couple, in relation firstly to “delay” in bringing applications, it
has been emphasised in numerous cases recently that as regards the time periods
within which an applicant must get leave, it is often forgotten that the primary
obligation is to move promptly. Guidance on what is called for is provided by
Kenneally v. The DPP [2010] IEHC 183 and the judgment of Mr. Justice Hedigan
where he states:
“8. The obligation to move promptly for prohibition is of particular
importance in criminal matters. Any delay in determining criminal
charges is to be deprecated. Order 84, r. 21 of the Rules of the Superior
Courts requires an application, such as this, to be made within three
months from the date when grounds for the application first arose and, in any
event, promptly. The applicant had knowledge of the fact the sample had not
been retained at the very latest on 28/05/2009. This application was made on
15/09/2009, some three and half months after that date. It might be possible to
17
argue that they ought to have known the sample would not be retained from
the very beginning. However, taking the date of their knowledge as
28/05/2009, this application is out of time. In any event, the delay between
28/05/2009 and two days prior to the trial could not be described as prompt
action. In a case such as this, action should have been taken immediately. Any
delay of any kind needs the clearest explanation. No explanation is provided
for the delay in question. This application, therefore, fails, on either the three
month requirement or the requirement to act promptly.
Also of particular note given the issue under consideration are the comments made by
Mr. Justice Hedigan at the very end of his judgment where he says:
“As is clear from the above, the courts will always be alert to the danger of an
interference with the constitutional rights of citizens and will move to protect them
where necessary. However, this jurisdiction in relation to criminal trials is one which
will only be exercised in exceptional cases. The long line of cases which have come
before the High Court on judicial review in these types of cases rarely raise any points
that might move the court to intervene, as sought. Practitioners should give the most
careful consideration, at the earliest possible time, as to whether there is any reality to
an application to prohibit the holding of criminal trial - a very rare action by the High
Court. If there is, they should move with great speed. In this type of case, delay will
almost always result in failure. The delay involved in the criminal process, as noted
above, is to be deplored. The heavy expense incurred by the continuous line of
unsuccessful applicants, when, as in almost every case, they are fixed with the costs of
the judicial review, is a very heavy burden to bear at the best of times, and particularly
in these difficult times. The delay in concluding the criminal process is contrary to
everyone's interest. The place for criminal trials is in the criminal courts.”
Only last Friday the 13th of May, delivering judgement in the case of Damache v. The
DPP & Anor Kearns P. said the following on “Time”:
“The requirement to move promptly is an essential element in our judicial
review jurisprudence.........A period in excess of six months was allowed to
elapse before any challenge to the propriety of the search warrant got off the
ground. Quite apart from the fact that this delay is fatal to the applicant’s
claim for the declaratory relief sought, it also reinforces an unfortunate
impression that the judicial review process in this (as in a number of other
criminal cases) is being deployed in such a fashion as to delay the ordinary
course of criminal trials in this jurisdiction. In recent years a number of
judges, myself included, have commented unfavourably about the bringing of
18
very late applications and it is a practice which must stop if due respect for
our criminal process is to be maintained.”
In Dean v The DPP [2008] IEHC 87, full disclosure of the facts pertinent to the
disposal of the judicial review application had not been brought to the attention of the
Judge who granted leave. This proved fatal to the application. Mr. Justice Hedigan
stated inter alia:
“I cannot over emphasise the importance of this principle. The "leave to
apply" provision in the rules is an essential part of the system of Judicial
Review and is what makes it all work. But without confidence on the part of
any Judge hearing the application that all relevant matters and law both for
and against the application are before him or her the essential ex parte nature
of the "leave to apply" system cannot continue.
I have considered very carefully overnight the significance of the failure to
bring those statements to the attention of O'Sullivan J. I do not consider that
the applicant or his legal advisers acted in bad faith. Nonetheless it seems to
me that were the making and the contents of those statements by the applicant
brought to the Judge's attention they might have led him to refuse leave to
apply. I have come to this conclusion on the basis that whilst all other matters
required to convict might well have been related to the question as to whether
the Applicant did or did not know of the unlicensed nature of the site at
Whitestown, Landfill Four and as to whether he did or did not know that he
was disposing of waste in a manner likely to cause environmental damage,
nonetheless, it would be a central part of any criminal case that the applicant
did in fact dump on the site and was familiar with it.
Indeed I do not think I need even go that far because it seems to me that when
any part of the factual matrix of a case is omitted from the matters presented
to a Judge on an ex parte basis the test as to whether this amounts to a
material non-disclosure should be whether the information was relevant. If it
was then it should have been brought to the attention of the Judge, who may
weigh the actual importance of that information to the case. In my view the
statements made were highly relevant.
I note that no application was brought by the Director of Public Prosecutions
to set aside the grant of leave. This, however, should not prevent the Court
from acting proprio motu as it must be the master of its own procedures.”
Hearsay Affidavits and the problem of Cross-Examination
The Rules of the Superior Courts 1986, and indeed the rules of evidence require that
Affidavits be sworn in applications by way of judicial review by parties with direct
knowledge of events. If this is not done on behalf of either an Applicant or
Respondent the chances of success are weakened. Indeed in the above mentioned U
judgment delivered by MacMenamin J. he ruled part of the Affidavit evidence offered
19
on behalf of the DPP to be inadmissible by reason of being immaterial or hearsay.
More often the Superior Courts when refusing relief refer to the fact that Affidavits
have not been sworn by applicants who they find to have not “engaged with the
facts”. This circumstance usually ends up as a reason why the discretion to grant relief
is declined.
Once affidavits are closed, the traditional view has been that consideration must be
given to the question of cross-examination if conflicts on significant issues arise. If
this is not done, it is usually raised by the opposing party or Court on the hearing. A
recent example of this playing out in practice was provided by the judgment delivered
by Hanna J. in O’Connor v. DPP (Unreported 18th of February 2011):
“I turn, momentarily, to one aspect of the applicant’s case. Both Gardai
have sworn affidavits. Both say that no reference was made to panic
attacks in the station. The hearing in the District Court was the first they
heard about this. Garda Culhane deposes that the applicant’s doctor gave
evidence to the effect that she accepted that most people suffering from
asthma faced with the circumstances confronting the applicant would
inform the gardai of their ailment. Very late in the day, literally days
before the hearing of this matter, an affidavit was filed sworn by the
applicant’s sister, Elizabeth O’Connor. She had, apparently, given evidence
in the District Court. Her terse affidavit described her sister becoming
agitated and of the deponent sitting in the front of the patrol car informing
Garda Culhane of the applicant’s tendency to suffer panic attacks.
The foregoing spawned an almost immediate replying affidavit from Garda
Culhane set in terms that amounted to flat contradiction of everything Ms.
O’Connor said with the exception of confirming her presence in the
applicant’s motor vehicle. This caused me, not to mention Mr. Paul
Anthony McDermott for the second to fourth-named respondents, to
wonder what the purpose was of this “chimes at midnight” incursion on the
applicant’s behalf. It seemed to dissipate to a degree the asserted
reliance by Mr. Ross Maguire S.C. on the extant finding of special and
substantial reason by the District Judge. What could its relevance be if not
to attempt to undermine the credibility of the affidavits of the Gardai? And
yet, no steps were taken by the applicant (and, for that matter, the
respondents) to instigate cross-examination. I refer, without further
comment, to para. 5-86 of Civil Proceedings and the State (Collins and
O’Reilly):“The (cross-examination) procedure is of assistance where the
affidavits, on their face, disclose conflicts of fact that are incapable of
resolution. The court cannot resolve such conflicts in favour of the
party on whom the burden of proof lies, usually the applicant.”
Practitioners should be aware that a strict view is being taken however as to when
cross-examine should be permitted. Certainly it would seem that any motion to
cross-examine in a judicial review application related in some way to a
consideration of whether there was sufficient evidence to convict an accused is
20
presently doomed to fail. One such case was Phelim Doyle v. The DPP [2010] IEHC
287 where The President said at the end of the judgment:
“By way of comment I would add that I derived little assistance from the
cross-examination of Garda O'Brien and Mr. Tarrant as to their recollection
of events in the District Court. I would be firmly of the view that crossexamination of witnesses in applications of this nature is best avoided
unless absolutely necessary.”
But whether such applications are indeed “sufficiency of evidence cases” or whether
the individual case turns more on an analysis of whether the claimed error called for
an analysis/enquiry as to whether such impugned act or omission constituted an
error within or without jurisdiction is certainly a more vexed issue, the resolution of
which might ultimately require cross-examination of witnesses.
Importance of submissions at first instance
If in the eyes of the Court the facts of the particular application before it called for a
submission at first instance, the fact that one was not made may very well prove fatal.
A judgment which illustrates this point well was that delivered by The President in
John Lynch v. The DPP & Anor (unreported, 9th of July 2010). The case concerned
the failure of the prosecution to properly particularise the charge of burglary. In this
regard and in granting relief Kearns P. stated inter alia (p.6):
“In the present case, the particular arrestable offence referred to on the
charge sheet was burglary. At the hearing, it was suggested by the case
presenter that burglary was generally understood to mean entering a building
to commit a theft. However, it is certainly the case that the offence of burglary
may be particularised as involving offences other than theft such as entering
with intent to commit such offences as criminal damage or assult causing
harm. In my view to particularise the offence of burglary as involving the
offence of burglary is meaningless and amounts to a failure to specifiy an
arrestable offence.........
If this were a case where the applicant had failed to raise the jurisdictional
point until after the hearing had been disposed of, I would exercise my
discretion against granting relief notwithstanding the manifest error on the
face of the charge sheet and conviction order in this case. However, the
invalidity of the charge sheet was raised at the outset of the hearing in this
matter. This was therefore not a case where the applicant sat on his hands
hoarding a valuable legal point for deployment at a later time by way of
judicial review application if the case outcome was not to his liking. While I
regard with a certain amount of scepticism the suggestion that the applicant's
guilty plea was a direct result of the erroneous ruling of law by the first named
respondent, the fact nonetheless remains that the ruling made by the first
named respondent was indeed erroneous.
In those particular circumstances, I do not believe that this a case of which it
may be said that the applicant's conduct disentitles him to relief. A particular
21
legal point which was open to him to raise was in fact raised and given that
the first named respondent ruled incorrectly thereon it seems to me that the
applicant is entitled to the order sought.
The case is also by implication of note as the error, such as was found was not
considered by the High court to be one made within jurisdiction and therefore
immune from challenge by way of judicial review.
The environment
The High Court has adverted on a number of occasions to heavy District Court
workloads and busy lists in decisions refusing relief to applicants. This observation
has a particular resonance in the jurisprudence on the “duty to give reasons”. This
issue is but one of a number of procedural and substantive issues in respect of which
quite an amount of High Court jurisprudence has been developed but which is the
subject of Supreme Court appeal, accused persons entitlements to legal aid bing
another one. Giving a sense of the approach of a number of High Court Judges to such
matters, is the judgment delivered by Mr. Justice McMahon in Mary Delany v. DPP
(Unreported, 24th of March 2011) where inter alia he has the following to say:
“(c) Failure to give reasons
33. It is an inherent element of fairness and justice that when a person is convicted of
a crime he should be furnished with the reasons and an adequate explanation for the
conviction. He or she must know not only what the court’s decision was but also the
reasons why the court reached its decision. Confidence in the judicial process is
based on the assumption that decisions are based on rational foundations and are not
arbitrarily arrived at. Moreover, public confidence is best secured when the reasons
for the decision are explained and furnished.
34. The onus which this places on a particular judge will vary in any given case.
Clearly, it is more important in the higher courts where the issues may be complex
and numerous, where frequently the parties have made written submissions and where
the decisions are reserved by the judge for further consideration before being finally
delivered. At this level, too, the reasons for the decision are very relevant for the
parties and their advisers who have to consider whether an appeal should be taken or
not. In contrast, in the lower courts, and in the District Court in particular, where
heavy lists and crowded schedules do not always afford the district judge the luxury
of reserving judgments, the judge does not always have the time to compose an
articulate, orderly and expansive exposition of the reasons for the judgment. It is
essential even in such cases, however, that the accused when leaving the court knows
what he has been convicted of. There is no room for uncertainty in that aspect of the
matter. In my view, it is also essential that the reasons for the conviction are likewise
clear, although the judge may not have had the time to fully or comprehensively
articulate the reasoning. In some cases, the reasoning may be obvious and may not
require elaboration. This would particularly be the case where the judge prefers the
evidence of one witness over the evidence of another on a critical matter or where the
22
issue for determination is a single factual issue e.g. whether the defendant was
driving at a speed which exceeded the permitted speed limit. There is no requirement
for the judge in such situations to elaborate the obvious. A pragmatic view must be
taken of the time pressures imposed on the district judge by heavy lists. Moreover,
detailed reasons are less important where the appeal available from the District
Court is a full de novo hearing. Finally, as already noted, the remedy of judicial
review is always available in exceptional cases where the district judge falls into
serious error. This may be so even when the district judge starts within jurisdiction
but during the trial “fall[s] into an unconstitutionality.” Such cases are, however,
exceptional and relatively rare.
35. In the present case, the accused argues that the District Judge has fallen into such
unconstitutionality in failing to give adequate reasons. I do not agree. In my view, the
District Judge in refusing to give a direction stated quite clearly that he did so
“having heard all the evidence”. In doing so, he was prepared to find that there was
evidence that the applicant was “driving” the vehicle and that all the other elements
of the offence were present. It is also clear that in rejecting the submission by the
applicant’s counsel, he did not consider the date in the summons charge sheet fatal to
the prosecution in the circumstances. There was no ambiguity in his decision and on
the facts there was little reason to elaborate further on his reasoning. There can have
been no confusion on the part of the accused. In these circumstances, I am unwilling
to hold that there was unfairness to such an extent that the Court should hold, in the
words of Henchy J., that the District Judge had fallen into “an unconstitutionality”.
36. The duty to give reasons in summary criminal trial has been the subject of much
comment in the Superior Courts in recent times. Murphy J. in O’Mahony v. Ballagh
[2002] 2 I.R. 410 at 416, a case not unlike that before the court, made the following
comments:“At the conclusion of the State’s case the applicant and his legal advisors
were required to decide whether they should go into evidence or not. To make
that decision it was essential to know which of the arguments were accepted
and which rejected.
I would be very far from suggesting that judges of the District Court should
compose extensive judgments to meet some academic standard of excellence.
In practice it would be undesirable - and perhaps impossible - to reserve
decisions even for a brief period. On the other hand it does seem, and in my
view this case illustrates, that every trial judge hearing a case at first instance
must give a ruling in such a fashion as to indicate which of the arguments he
is accepting and which he is rejecting and, as far as is practicable in the time
available, his reasons for so doing.”
37. In that case, the district judge delivered himself of a remark which was open to
different interpretations. In the case before this Court, however, there is no ambiguity
in the few remarks made by the District Judge which would suggest bias. More
recently, O’Neill J. in Kenny v. Judge Coughlan [2008] IEHC 28, (Unreported, High
Court, O’Neill J., 8th February, 2008), referring to the duty to give reasons on
summary trials, stated:23
“[I]n giving decisions, District Court Judges need only make clear the nature
of the decision they are making and in unambiguous terms, the basis for that
decision. It could never be said that where a District Judge is presented with
submissions on a series of legal points, he or she is obliged to provide a legal
analysis of his/her reasons for accepting or rejecting any of them.” (Ibid, at
pp. 22 to 23)
38. The learned judge emphasised that since the appeal from the District Court is a
full rehearing of the case, unlike appeals from the High Court to the Supreme Court,
the necessity for detailed reasons is less compelling. In Sisk v. Judge O’Neill [2010]
IEHC 96, (Unreported, High Court, Kearns P., 23rd March, 2010), Kearns P. quoted
with approval the following dicta of Charleton J. in Lyndon v. Collins [2007] IEHC
487, (Unreported, High Court, Charleton J., 22nd January, 2007):“Now I do not think that it is necessary…that District Judges give reserved
decisions…to a high standard of academic excellence. What is essential,
however, is that people know going out of any District Criminal Court what
they have been convicted for and why they have been convicted.” (Ibid, at p.
20)
39. That case also involved an application for a direction to which the district judge
replied:“I am not going to grant a direction. I do want to hear your client.”
40. Kearns P. in Sisk concluded:“I am satisfied that, in the event of an application being made for a nonsuit at
the conclusion of the prosecution case, the obligation on a District Judge is to
consider the sufficiency of the prosecution evidence when taken as a whole
and taken at its highest.
I do not believe there is an obligation upon a District Judge to furnish detailed
reasons, or any reason for refusing such an application once he satisfies
himself that the test in R. v. Galbraith [[1981] 2 W.L.R. 1039] has been met.
Thus in the instant case I do not believe the learned District Court Judge was
in error in refusing to give a detailed ruling on the application that there was
no case to answer.” (Ibid, at pp. 23 to 24)
41. For the above reasons, I am not prepared to concede that there was a failure by
the District Judge in the present case to give adequate reasons for his decision.”
(emphasis added)
In circumstances were notice seems to be taken of a view of a District Court
environment, one which seems unsupported by actual evidence yet inuring by default
to Respondent’s opposition to relief, it might now be required either to make some
comment on affidavit on the time pressures/existence of anything interfering with the
ability of a Court to transact it’s business and on the state of a list on a particular
day/week if only to see off issues a Court or opposition might have. Alternatively in a
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given case it would seem that objection would taken to a Court having resort to such
considerations. The need to deal with such issues also arises in the context of the
anecdotal evidence coming from practitioners in the Criminal Courts of Justice to the
effect that criminal lists are not as busy as historically they have been, with
consequently 2pm lists being brought forward to 12pm, lists finishing early and
contested hearings not taking up as much time as might have previously been the case
in either number or duration. There is also the fact that as many practitioners know,
many District Judges have neither aversions to reserving judgments in particular case
nor to providing a detailed decision in a given case.
Meadows
A number of the recent High Court decisions on the duty to give reasons have been
appealed to the Supreme Court and it’s views are eagerly awaited. It will be
interesting to note moreover what influence the majority judgments of the Supreme
Court delivered in Meadows v. The Minister for Justice [2010] 2 IR 701 have over the
resolution of this and other controversies in the criminal judicial review context,
calling as they seem to do for a discrete and considered assessment of the doctrine of
proportionality - it would seem considered as an aspect of
unreasonableness/irrationality - in the context of decision-making affecting
fundamental personal rights of parties.
The following views of three of the Judges who delivered judgments suggest that the
case could have a significant impact upon the exercise of our Superior Court’s
supervisory jurisdiction by way of judicial review in the criminal context.
In delivering a judgment for the majority, Chief Justice Murray stated inter alia
(p.724, para 62):
“It is inherent in the principle of proportionality that where there is grave or
serious limitations on the rights and in particular the fundamental
rights of individuals as a consequence of an administrative decision the more
substantial must be the countervailing considerations that justify it. The
respondents acknowledge this in their written submissions where it was stated
"Where fundamental rights are at stake, the Courts may and will subject
administrative decisions to particularly careful and thorough review, but
within the parameters of O'Keeffe reasonableness review". In the same
submissions the respondents stated "as to the test of reasonableness, the
respondents have already made it clear that they have no difficulty whatever
with the proposition that, in applying O'Keeffe, regard must be had to the
subject matter and consequences of the decision at issue and that the
consequences of that decision may demand a particularly careful and
thorough review of the materials before the decision maker with a view to
determining whether the decision was unreasonable in the O'Keeffe sense."
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While dissenting Kearns P. did however state the following in relation to the test of
proportionality (p.734):
“It is a test more appropriate to determine if a statutory provision is
compatible with the Constitution or to consider if it invades a constitutional
right more than is necessary. While it may serve well as a test for assessing
first instance decisions in the context of judicial review it is in my view a quite
inappropriate test to apply to a decision made by the Minister at the ad
misericordiam stage of the decision-making process. It cannot but plunge the
court into a further consideration of the merits and demerits of the particular
case which have long since been determined.”
Denham J. offered insight into what “proportionality” means in this context stating
inter alia (p.741-743):
“Fundamental rights
18. Fundamental rights arise in some cases where decisions are being
judicially reviewed. When the decision being reviewed involves fundamental
rights and freedoms, the reviewing court should bear in mind the principles of
the Constitution of Ireland, 1937, the European Convention on Human Rights
Act, 2003 , and the rule of law, while applying the principles of judicial
review. This includes analysing the reasonableness of a decision in light of
fundamental constitutional principles. Where fundamental rights and
freedoms are factors in a review, they are relevant in analysing the
reasonableness of a decision. This is inherent in the test of whether a decision
is reasonable.
Proportionality
19. While the test of reasonableness as described in The State (Keegan) v.
Stardust Victims' Compensation Tribunal and in O'Keeffe v. An Bord
Pleanála did not expressly refer to a concept of proportionality, and while the
term "proportionality" is relatively new in this jurisdiction, it is inherent in
any analysis of the reasonableness of a decision.
20. "Proportionality" has been expressly referred to in judicial reviews in
recent years. The doctrine of proportionality has roots in the civil law
countries of Europe but it has been applied in other common law countries, as
well as in Ireland. For example, in Radio Limerick One Ltd v. Independent
Radio and Television Commission [1997] 2 I.R. 291 , Keane J. stated at
pp.311 and 312:"The grounds on which the High Court can set aside a decision of a body such
as the commission established by the Oireachtas with specified functions and
powers have been made clear in a number of decisions and need be referred to
only briefly. The locus classicus is the frequently cited passage from the
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judgment of Lord Greene, M.R. in Associated Provincial Picture Houses
Limited v. Wednesbury Corporation [1948] 1 K.B. 223."
Keane J. went on to quote from the Wednesbury case, and from Henchy J. and
Griffin J. in The State (Keegan) v. Stardust Victims' Compensation Tribunal.
He stated:"Thus in the present case, if the only ground on which the commission
terminated the applicant's contract was the carrying of the outside
broadcasts and they were wrong in law in treating, as they did, those
broadcasts as advertisements within the meaning of the Act, it is
difficult to see how their decision could be described as 'reasonable'
either in terms of Associated Provincial Picture Houses Ltd. v.
Wednesbury Corporation [1948] 1 K.B. 223 or on the application of
the criteria proposed by Henchy J. in The State (Keegan) v. Stardust
Victims' Compensation Tribunal [1986] I.R. 642 .”
Keane J. then discussed the use of the test of proportionality in
determining whether legislation was unconstitutional. The learned
judge noted that no Irish authority had been cited for the proposition
that the principle of proportionality could be invoked as a test on an
administrative act. He referred to an approach being developed in
England and stated at p.314 that:"Whatever view may be taken as to the desirability of that approach, it
can be said with confidence that, in some cases at least, the
disproportion between the gravity or otherwise of a breach of a
condition attached to a statutory privilege and the permanent
withdrawal of the privilege could be so gross as to render the
revocation unreasonable within Associated Provincial Picture Houses
Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 or The State
(Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642
formulation. Thus, in the present case, if the amount of advertising in
the applicant's programmes had on two widely separated occasions
exceeded the permitted statutory limit by a few seconds, the permanent
revocation of the licence, with all that was entailed for the livelihood
of those involved, would clearly be a reaction so disproportionate as to
justify the court in setting it aside on the ground of manifest
unreasonableness. It is unnecessary to emphasise how remote that
example is from what admittedly occurred in the present case."
[emphasis added]
This analysis of the proportionality test and the reasonableness test
highlights the underlying similarity, with which I agree.
21. Irish Courts have referred previously to the concept of
proportionality as described in Canada. Costello J. stated in Heaney
v. Ireland [1994] 3 I.R. 593: 27
"The means chosen must pass a proportionality test. They must (a) be
rationally connected to the objective and not be arbitrary, unfair or
based on irrational considerations; (b) impair the right as little as
possible; and (c) be such that their effects on rights are proportional
to the objective: see Chaulk v. R. [1990] 3 SCR
1303, at pages
1335 and 1336."
Costello J. went on to consider whether the restrictions imposed in that case
were proportional to the object sought to be achieved. I would adopt an
approach to the proportionality test similar to that of Costello J..
22. The nature of the proportionality test is that, as described above, it must
be rationally connected to the objective; not arbitrary, unfair, or irrational.
The inherent similarity may be seen in the requirement in O'Keeffe v. An Bord
Pleanála that the decision not be irrational, or at variance with reason or
common sense.”
A potential consequence of Meadows may be that many impugned adjudications by
Judges of “local and limited jurisdiction”, previously determined upon judicial review
applications as being immune from challenge by virtue of them being errors (if indeed
they be so found) within jurisdiction, may not now necessarily benefit from that saver.
This is to say that the renewed focus on the doctrine of proportionality may serve to
buttress and extend somewhat the traditional test applied by the Superior Courts in
such analyses, where the Courts look to see for example whether the particular judge
in dealing with an application/submission acted judicially hearing both sides in an
unbiased fashion, exercised his or her discretion bona fide bringing their minds to
bear on the issue eschewing irrelevant considerations and considering relevant
considerations.
In this regard the observations of the House of Lords in the following case are helpful.
In R v. Secretary of State for the Home Department,ex p Daly [2001] 2 AC 532 at
para.27:
“..the doctrine of proportionality may require the reviewing court to assess the
balance which the decision maker has struck, not merely whether it is within
the range of rational or reasonable decisions..... the proportionality test may
go further than the traditional grounds of review inasmuch as it may require
attention to be directed to the relative weight accorded to interests and
considerations”
ENDS
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