Recent Developments in Criminal Judicial Review
The aim of this paper is to provide a summary of recent developments in selected
areas of criminal judicial review in the last year or so.
Section 99 of the Criminal Justice Act 20061
DPP (Madden & Hynes) v Carter2
The defendant was before the Dublin Circuit Criminal Court for sentence. He had
been convicted during the currency of a suspended sentence imposed by Dublin
District Court. Accordingly the defendant was remanded under s. 99(9) of the District
Court for revocation of sentence. The District Court stated a case in relation to the
whether the revocation hearing could proceed where the defendant had not been
remanded to the sitting of the court immediately following that of the Circuit Court
notwithstanding the section providing that the court was required to remand to the
‘next sitting’ of the court which imposed the suspended sentence.
The DPP argued that the provision was directory rather than mandatory and failure to
remand to the next sitting had no effect on the validity of the procedure before the
District Court. O’Malley J. disagreed and held that the failure to remand to the next
sitting was fatal to the statutory revocation process:
“The question here is ultimately one of jurisdiction. The issue is not whether
the defendant was properly brought before the District Court, but whether a
lawful foundation had been laid for the exercise by the District Court of its
powers under subs.(10) of the Act. It seems to me that this issue must be
approached on the basis that the powers in relation to suspended sentences
are now entirely governed by statute, and that the statutory power to revoke
such a sentence under subs.(10) of the Act depends on a valid order having
been made under subs. (9). I propose therefore to follow Devine and hold that
in this case the District Court had no jurisdiction to deal with the applicant. I
do so on the basis that Devine is a decision of the Court of Criminal Appeal
directly concerned with the proper interpretation of the statutory provisions in
issue in this case.”3
DPP (Cogavin) v Vajeuskis4
The defendant was sentenced in the District Court to a period of imprisonment of four
months which was suspended for two years under s. 99(1) for road traffic offences.
He was subsequently convicted of other offences and remanded back to the court for
revocation under s. 99(10). At the revocation hearing, the defendant argued that the
original sentence was invalid as the period of suspension could not exceed the length
of the sentence and in particular could not exceed the maximum sentence which could
be imposed for that offence.
1
as amended by s. 60 of the Criminal Justice ct 2007 and s. 51 of the Criminal Justice (Miscellaneous
Provisions) Act 2009.
2
[2014] IEHC 179; unreported High Court, O’Malley J. March 21, 2014.
3
ibid., at para. 39. The decision has been appealed to the Supreme Court by the DPP.
4
[2014] IEHC 265; unreported High Court, Peart J., May 23, 2014.
Page 1
On a case stated to the High Court, the DPP argued that the original sentence could
not be revisited on a revocation application and it was therefore not a matter before
the District Court. The DPP further argued the case law which suggested that a
sentence could not be suspended for a period longer than the sentence absent special
reason had been superseded by the introduction of section 99. Peart J. agreed with the
DPP submissions:
“It follows also in my view, in so far as it is relevant at all (but it may be
helpful generally to say this), that Judge Hughes was not restricted as to the
length of time for which he could suspend the sentence of four months which
he imposed, and that it is not the law of this State that a sentence may not be
suspended for any period longer than the sentence itself. The Act is silent in
that regard and as to the maximum length of any such suspension. That is
what the Oireachtas has decided the law should be. In so far as any convicted
person might consider that any sentence imposed and suspended is not a
lawful and appropriate sentence, he/she must address that issue by way of
appeal as to severity of sentence, or perhaps in an appropriate case by way of
judicial review. But it is not appropriate to try and have the issue dealt with a
part of the consideration as to whether it is unjust that the suspension should
be revoked.”5
McCabe v Governor of Mountjoy Prison6
The applicant had received a suspended sentence in the Circuit Court (on appeal) for
driving with no insurance. He was subsequently convicted of a public order offence in
breach of the bond. He was remanded in custody under s. 99(9) to the Circuit Court
for revocation. He brought an application for an enquiry under Article 40 of the
Constitution. He argued that the section was unworkable as he could not be described
as being a convicted person having regard to the non-severability of conviction and
sentence.
Hogan J. held that the meaning of a person who was ‘convicted of an offence’ as
provided for in the section was not the precise equivalent of a person who has been
convicted and sentenced:
“For all of these reasons, I consider that the reference in s. 99(9) to the phrase
‘convicted of an offence’ refers in this context to the situation where the
accused has been found guilty by the second court, but where sentence has yet
to be imposed by that court. To ascribe any other meaning to these words
would render the sub-sections unworkable and, in any event, that meaning is
reinforced by an application of the noscitur a sociis principle.”7
A further argument that the section is unconstitutional has yet to be decided. It is
argued that as the suspended sentence was imposed by the Circuit Court, there is no
appeal as provided for under s. 99(12).
ibid., at para. 18.
[2014] IEHC 309; unreported High Court, Hogan J., June 3, 2014.
7
ibid., at para. 21. Although not referred to in the judgment, a similar conclusion was reached by
Hedigan J. in Harvey v Leonard [2008] IEHC 209; unreported High Court, Hedigan J., July 3, 2008.
5
6
Page 2
Murphy v Watkin8
The applicant had been convicted in the District Court and remanded under s. 99(9) to
Dublin Circuit Criminal Court for revocation as there was a Circuit Court suspended
sentence in operation. A similar argument was made to that made in McCabe and
Harvey9 to the effect that in order to remand under s. 99(9) it required the person to
have been convicted which could not be the case without a sentence having been
imposed. Moriarty J. rejected the argument and quoted with approval the following
remarks of Hedigan J. in Harvey:
“[t]he challenge is based on what I consider the mistaken view that conviction
and sentence are so inextricably linked that nothing of substance can occur
between them. That proposition cannot be correct.”10
People (DPP) v Anthony Foley11
Although not a judicial review it is worthy of mention in a review of recent cases on
section 99. The appellant was the subject of a suspended sentence imposed by the
Circuit Court but modified on appeal. He subsequently offended in breach of the
suspended sentence and the question arose as to which court he should be remanded
under s. 99(9) to the Circuit Court or the Court of Criminal Appeal. The appellant
argued it should be the Circuit Court largely because this would allow for the
applicant to have an appeal against the revocation as envisaged by s. 99(12). On a s.
29 reference, the Supreme Court disagreed citing the plain meaning of the words of
the section:
“The words of s. 99, subsections (1), (9) and (10) of the Act of 2006, as
amended, are clear and plainly establish a system by which a sentence may be
suspended and this suspension subsequently revoked. The limited appeal from
the CCA in such circumstances is not such a factor as to alter the clear
wording of section 99(1).”12
Bench warrants
McDonagh v Watkin13
The applicant was before Blanchardstown District Court and a bench warrant issued
for his arrest. An application was later made to vacate the warrant on the basis that the
applicant had been outside court waiting on her solicitor. When the matter was rementioned, the prosecuting garda had gone. The court refused to vacate the warrant. It
was argued that the failure to vacate the warrant was disproportionate having regard
to the fact the purpose of the issue of the warrant was to secure the attendance of the
applicant who was present in court.
Kearns P. refused relief and contrasted the case with his earlier decision in Lado v
Martin:14
8
unreported High Court, Moriarty J., July 11, 2014.
Harvey v Leonard [2008] IEHC 209; unreported High Court, Hedigan J., July 3, 2008.
10
ibid., at p. 8.
11
[2014] IESC 2; unreported Supreme Court, January 23, 2014.
12
ibid., at paras. 52-53, per Denham C.J. (nem diss.).
13
[2013] IEHC 582; unreported High Court, Kearns P., December 12, 2013.
14
unreported ex tempore High Court, Kearns P., April 26, 2010.
9
Page 3
“I am satisfied that the respondent judge, obliged as all judges of the District
Court are, to ensure that bail conditions are adhered to, was acting within her
jurisdiction and not irrationally in making the particular determination which
she did make. Another judge might have taken a different course, but I do not
think the proportionality requirement in the Meadows[15] case can be relied
upon to convert this application into an appeal on the merits. It must be a
clearly disproportionate decision when seen in context and in the light of the
judge's own need to manage and dispose of her list efficiently.”16
Cavlan v O’Hagan17
The applicant was listed for trial Monaghan Circuit Court. He had been sent forward
for trial on bail but had since been remanded in custody in Northern Ireland. When the
case was listed before the Circuit Court, the applicant applied for an early trial date.
The court issued a bench warrant on the application of the DPP. The decision was
sought to be quashed by way of judicial review on the basis that the applicant had not
disobeyed his bail and the issue of the warrant was in the circumstances
disproportionate. Feeney J. agreed with the DPP submission that the issue of the
warrant was not disproportionate and could be used to ground an extradition. He
remarked that there was no other basis upon which the applicant’s attendance could
be compelled.
Moroney v Finn18
The applicant was the subject of summonses which had been served on his family
home when he was in Australia. There was a dispute as to whether summonses had
been validly served. Judge Finn held that they had and issued a bench warrant.
Hedigan J. held that there had been a failure to conduct an enquiry into the validity of
the summons. In the circumstances the court also concluded the issue of the bench
warrant was disproportionate:
“Where young people in particular may have had to leave the country to find
work the issuance of a warrant should only be done after the most careful
consideration and only in circumstances where it will serve a direct and
immediate purpose. The desire of the authorities to extradite may be an
example.”19
Fair procedures
McCann v Halpin20
The applicant was tried in the District Court on three charges of criminal damage. The
applicant had put to the complainant that she was lying. The District Judge had said
that there would be “consequences” of this line of cross-examination. There were also
remarks about the applicant seeking to vindicate his rights to seek disclosure of
CCTV footage and other exchanges between the court and counsel for the applicant.
This was compounded by the fact that it had, through error, been put to the accused in
Meadows v Minister for Justice [2010] IESC 3; [2010] 2 I.R. 701.
[2013] IEHC 582; unreported High Court, Kearns P., December 12, 2013, pp. 13-14.
17
unreported ex tempore High Court, Feeney J., July 31, 2013.
18
unreported ex tempore High Court , Hedigan J., May 8, 2013.
19
ibid., at para. 6.
20
[2014] IEHC 276; unreported High Court, Cross J., May 27, 204.
15
16
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the District Court that had not been in custody on the evening in question when in fact
he had. In all of the circumstances the trial was quashed as being unfair.21
Ó Raithbheartaigh v McNamara22
The applicant was acquitted in the District Court by direction of the trial judge of the
offence of harassment. On the application of the prosecution, the court went on to
make a restraining order under s. 10 of the Non Fatal Offences Against the Person Act
1997. Such an order can be made even if there is an acquittal. In the circumstances the
order was made on the basis of the evidence given at trial. The evidence had only
been tested in the context of the trial and had not been done so in anticipation of a
potential restraining order in the event of an acquittal.
Baker J. held this to be in breach of fair procedures having regard to the penal
consequences of such an order and the apparent absence of a right of appeal:
“The fact that the particular order in this case admits of no appeal, that the
consequence of breach of the order can involve the imposition of a criminal
sanction, and because the effect of an order can have significant effect on the
life of a person against whom an order is made, taken together or singularly,
impose a heavy burden of fairness on the District Judge. The making of the
order cannot in my view be seen as fair and the trial judge gave no
opportunity to the applicant to test any evidence of adduce any evidence in
rebuttal.”23
Kenny v Coughlan,24
The applicant had been convicted of speeding and sought to quash the decision of the
District Court on the grounds that there had been an unfair trial due to the alleged
failure of the judge to give reasons. In the High Court,25 O’Neill J. held against the
applicant who appealed to the Supreme Court. The appeal focussed primarily on the
duty to give reasons. Denham C.J. (with whom Murray and Laffoy JJ. agreed)
conducted a review of recent case law on the duty to give reasons from both the
domestic courts and the European Court of Human Rights. Applying the principles to
a straightforward summary trial, the Chief Justice held as follows:
“As the case-law of the European Court of Human Rights indicates, and as
also stated earlier in this judgment, the degree and extent to which a decision
of the District Court must be explained by giving reasons will depend in turn
on the nature and circumstances of the case. In some cases it may be
necessary to succinctly but fully explain the reasons for the decision so that
the parties have a proper understanding of the reasons upon which it was
based. In this case the offence was simply that of speeding and the mode of
trial was summary. This was one of hundreds of such cases that come before
the District Court routinely every day of the week. There had been a clear
presentation of the issues by the parties, in adversarial proceedings. The
District Court Judge indicated that he preferred the evidence given on behalf
21
In a subsequent ruling Cross J. declined to remit the case to the District Court for trial.
unreported High Court, Baker J., July 11, 2014.
23
ibid., at para. 41.
24
[2014] IESC 15; unreported Supreme Court, May 3, 2014.
25
[2008] IEHC 28; unreported High Court, O’Neill J., February 8, 2008.
22
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of the prosecution. The District Court Judge said that he was accepting the
evidence of the prosecution. In the circumstances that was sufficient reason.
There was no requirement for the trial judge in such a situation to elaborate
on the obvious.”26
Richards & Byrne v Judge O’Donohoe27
The applicant was sentenced to a term of imprisonment in the District Court for
assaulting a garda. He appealed sentence to the Circuit Court. On the date of the
appeal, there was no appearance by the prosecuting garda (although the DPP solicitor
was present) and the appeal was allowed. The applicant left court. Subsequently the
garda appeared and the court was asked to reinstate the appeal citing a confusion over
the court times. The decision to reinstate was quashed by Birmingham J. as the
applicant had not been afforded the opportunity to object to the application to
reinstate:
“I do not believe that this is a case where one can lose sight of the
practicalities of the situation. Many thousands of cases are listed in the
District Court every month and a great number of District Court appeals are
listed also. The sheer volume of cases involved guarantees that - with the best
will in the world, things will sometime go wrong and it seems to me proper
and indeed necessary that the District Court, and on appeal the Circuit Court
be in a position to respond to such situations as they arise. However, when
consideration is being given to vacating an earlier order made that ought not
happen without the party in whose favour that earlier order was made - and
who would be adversely affected if the order was altered - being given an
opportunity to be heard. I would expect that ordinarily that could happen both
informally and expeditiously. However, it does seem to me that the beneficiary
of the earlier order must have an opportunity to uphold that earlier order and
argue against variation. It seems to me that fair procedures require no less.”28
Delay
Paul O’Donoghue v DPP29
The applicant’s house was searched and cannabis and cocaine was found. The
applicant was arrested and made immediate admissions to possession. He was
prosecuted by way of summons but difficulties in serving the summonses led to a four
year delay in the prosecution. For over a year during the period, the applicant moved
to live in Australia.
In refusing prohibition, Baker J. had particular regard to the decision of S.A. v DPP,30
where Hardiman J. suggested that it would be “extraordinary” to prohibit a trial
where submissions have been made. Baker J. was also conscious of the dictum of
ibid., at para. 24.
[2013] IEHC 487; unreported High Court, Birmingham J., November 8, 2013.
28
ibid., at para. 23. Subsequently Birmingham J. acceded to the DPP application to have the case
remitted to the Circuit Court. That decision has been appealed to the Supreme Court although the
substantive decision has not.
29
[2014] IEHC 23; unreported High Court, Baker J., January 22, 2014.
30
[2007] IESC 43; unreported Supreme Court (Hardiman, Macken and Finnegan JJ.), October 17,
2007.
26
27
Page 6
O’Donnell J. in Byrne v DPP31 to the effect that with summary trial it is more
expedient to litigate the issue of delay before the District Court.
Ó C v DPP32
The applicant sought prohibition of his trial before the Central Criminal Court on
various sexual offences against his sister in law between 1981 and 1993 when the
complainant was a child. The applicant pointed to the loss of various pieces of
evidence, in particular the death of a psychiatrist who had treated the complainant and
the loss of his notes. O’Malley J. refused prohibition noting that a bare assertion there
might have been material which would have assisted the defence did not warrant
prohibition:
“[I]t seems to me that when an applicant seeks to establish that the absence of
a specific witness or piece of evidence has caused prejudice, he or she must be
in a position to point to, at least, a real possibility that the witness or evidence
would have been of assistance to the defence. In other words, I do not believe
that it is sufficient to point to a theoretical possibility that an unavailable
witness might have had something to say that would contradict the
complainant's account and that of other witnesses.”33
JS(T) v President of Circuit Court,34
The applicant sought prohibition on his trial for sexual assaults between 1979 and
1981 against thirteen complainants. The applicant had been tried and acquitted in
relation to six other complainants and had spent four years in custody awaiting trial on
those charges and had unsuccessfully sought to prohibit those trials. In the
circumstances Kearns P. found that the delay was to an extent justified by the
complexity of the investigation owing to the number of complainants after the
complainants came forward. The court made the following observations in relation to
the assertion that the applicant (then 71) was too frail to be put on trial:
“Undoubtedly a point in time must come where the prosecution of a person of
significantly advanced years and significant poor health ceases to be a trial in
any meaningful sense if that person is now at a stage where he is effectively
incapable of defending himself. The justice system itself might become a target
for criticism for permitting a trial in such circumstances as it would be
difficult to see how the public interest would be served by maintaining a
prosecution in an extreme situation of that nature. In this case, however, and
quite apart from being satisfied that the various ailments of which the
applicant complains do not render a trial unjust, I also do not regard his age
as one which contra-indicates a trial either. The days are long gone when
man’s allotted lifespan was ‘three score and ten’. Many men, and indeed many
more women, continue to thrive and prosper to a much more advanced age, so
that there can be no sweeping assumptions that a person who the week before
a milestone birthday was fit to stand trial becomes unfit a week later.”
31
[2010] IESC 213; [2011] 1 I.R. 346.
[2014] IEHC 65; unreported High Court, O’Malley J., February 7, 2014.
33
ibid., at para. 65.
34
[2014] IEHC 5; unreported High Court, Kearns P., January 17, 2014.
32
Page 7
G v DPP35
The applicant was charged with sexual offences against an eight year old girl which
he was said to have committed when he was 15. She told her mother immediately.
The investigation took some years and the applicant was not prosecuted for four years
and until he was in third level education. O’Malley J. conducted a review of the
authorities on delay in prosecuting sex cases and in cases brought against children.
The court recognised a distinct approach involving the prosecution of children:
“I do not suggest a revival of the concept, which does appear to have been
entirely disapproved, that delay can in itself and without more entitle an
applicant to an injunction. I consider, rather, that the special legal status of
childhood is an interest to be protected either on a sui generis basis or under
the general heading of the right to a reasonably expeditious trial. It seems to
me that the loss of that status through blameworthy delay on the part of the
prosecution authorities may be, in itself, a matter resulting in real prejudice
which may entitle an applicant to relief either on the authority of B.F.[36] or, if
there is indeed any conflict, within the formulation of both P.M.[37] and H.[38] If
a balancing exercise is to be carried out, this is therefore something that must
always be a very significant factor.”39
The court prohibited the applicant’s trial, having particular regard to the applicant’s
loss of anonymity having attained majority.40
PB v DPP,41
The applicant sought to prohibit his trial in relation to sexual assaults on eleven
complainants between 1965 and 1985. The applicant denied the allegations and
described a deteriorating medical condition. He also cited the death of a witness who
he said had put it up to the complainants to lie about him. The court refused
prohibition citing the safeguards of appropriate rulings of the trial judge. In relation to
the dead witness, O’Malley J. commented that there was scant evidence to support the
contention and he was not in the book of evidence and would not have been open to
cross-examination by the applicant in any event.
Miscellaneous
Douglas v DPP42
Section 18 of the Criminal Law (Amendment) Act 1935 which criminalised inter alia
behaviour such as “to cause scandal and injure the morals of the community”. Hogan
J. in a detailed judgment struck down the offence:
“The offences of causing scandal and injuring the morals of the community
are hopelessly and irremediably vague; they lack any clear principles and
policies in relation to the scope of what conduct is prohibited and they
35
[2014] IEHC 33; unreported High Court, O’Malley J., January 24, 2014.
B.F. v DPP [2001] 1 I.R. 656.
37
P.M v Malone [2002] 2 I.R. 560.
38
H v DPP [2006] 3 I.R. 575.
39
[2014] IEHC 33; unreported High Court, O’Malley J., January 24, 2014, at para. 104.
40
See also Donoghue v DPP unreported ex tempore High Court, Birmingham J., January 29, 2013
which is under appeal.
41
[2013] IEHC 401; unreported High Court, O’Malley J., September 6, 2013.
42
[2013] IEHC 343 [2013] 2 I.L.R.M. 324.
36
Page 8
intrinsically lend themselves to arbitrary and inconsistent application. In these
circumstances the conclusion that the offences offend the guarantees of trial in
due course of law in Article 38.1, the guarantee of equality before the law in
Article 40.1 and the protection of personal liberty in Article 40.4.1 is
inescapable.”43
DPP (Mulcahy) v Johnston44
Hogan J. considered the extent to which in a theft charge, the description of a
corporate injured party need be given in the charge and in evidence. Hogan J.
followed the earlier judgment of Birmingham J. in DPP (Breen) v Valentine,45 and
held that there need not be the precise name of the owner of the property provided the
name is not misleading.
Cirpaci v Governor of Mountjoy Prison,46
Hogan J. followed the decision of Davitt P. in State (Hastings) v Reddin,47 to the
effect that where an accused has a right of election, the accused having elected for
summary trial is a condition precedent to his being tried summarily and the validity of
any subsequent conviction. Hogan J. rejected the argument that advanced by the DPP
to the effect that this was not the proper subject matter of an enquiry under Article 40
of the Constitution:
“It is clear from the terms of s. 53 of the 2001 Act that the District Court only
had jurisdiction to try the case once the applicant had been informed of his
right to jury trial and he had elected nonetheless for summary disposal. Since
it is agreed that he was never afforded that right, a finding that the ensuing
conviction was entirely without jurisdiction merely amounts to a statement of
the obvious. To require in those circumstances that the applicant proceed by
way of judicial review rather than to avail of the remedy which the
Constitution expressly provides for unlawful detention would amount to a
repudiation of the text, tradition and history on which Article 40.4.2 rests. It
would, moreover, further circumvent the particular safeguards which Article
40.4.2 so carefully protects. These, after all, were the safeguards to which the
drafters gave the most careful attention in both 1937 itself and perhaps
especially again in 1941.”48
DPP (McConnell) v McDonnell49
The defendant had been in a road traffic accident and was taken to hospital. There his
clothes had been taken from him and were searched by the gardaí to confirm his
identity. The garda found a white powder in the defendant’s jeans as a result of which
she formed the opinion he been driving under the influence of an intoxicant. She
ibid., at para. 57. Subsequently in McInerney & Curtis v DPP [2014] IEHC 181; unreported High
Court, Hogan J., April 9, 2014, Hogan J. struck down the remaining portion of s. 18 of the 1935 Act
which criminalised behaviour which offends public modesty for similar reasons.
44
[2014] IEHC 104; unreported High Court, Hogan J., March 5, 2014.
45
[2007] IEHC 267; [2009] 4 I.R. 33.
46
[2014] IEHC 76; unreported High Court, February 25, 2014.
47
[1953] I.R. 134.
48
[2014] IEHC 76; unreported High Court, February 25, 2014, at para. 32. Cf. FX v Clinical Director
of the Central Mental Hospital [2014] IESC 1; unreported Supreme Court, January 23, 2014, para. 65
et seq.
49
[2014] IEHC 35; unreported High Court. O’Malley J, January 31, 2014.
43
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made a demand that he provide a sample of his blood which he refused. He was then
prosecuted for failure to comply with a lawful demand.
O’Malley J. held that the search was unlawful. The defendant had not consented nor
was any other power invoked. The defendant had given his details and there was no
basis to suspect they were false so an emergency situation did not arise. The court
went on to cite DPP (Walsh) v Cash,50 and hold that the exclusionary rule of evidence
does not apply to the formation of the opinion by the garda and therefore the
unlawfulness of the search did not infect the lawfulness of the subsequent demand
which the defendant was accused of failing to comply with.
Byrne v Dublin JJ. & DPP51
Prohibition was sought by two defendants who had already been the subject of two
lengthy trials on charges of ‘tiger kidnapping’. Hogan J. followed D.S. v Cork JJ.52
and held that there is no general rule prohibiting a third trial but there is a presumption
against it. Much will depend on the facts of each case:
“But even if the seriousness of the charges and the delay points might be
thought to favour a third trial, this is more than cancelled out by the
remarkable and special facts of the duration of the first two trials and, just as
important, the fact that these re-trials resulted from jury disagreements on the
merits. While, as we have already noted, there is no ex ante rule in relation to
such matters, it seems clear from the cases such as DS and Carter that a third
re-trial following two jury disagreements on the merits will normally
constitute a Rubicon beyond which no prosecution should generally cross. So
far as the present case is concerned, it must particularly be borne in mind that
a third trial involving these applicants alone would presumably take another
twenty five days. If that too resulted in a jury disagreement, is to be said that
we are then to have a fourth such prosecution? In these circumstances I am
driven to the conclusion that, based on the test articulated by Kearns J. in DS,
a further trial would amount to a ne plus ultra in terms of oppression, unless
there was compelling new evidence available against either applicant.”53
He went on to hold that in relation to one applicant there is new evidence to the effect
that he had used a telephone used in the robbery. He therefore declined to prohibit that
applicant’s trial but prohibited the other applicant’s further trial.54
Kelly & Buckley v Ryan55
The applicant’s were employees of Anglo Irish Bank. The notice party, a private
individual, had obtained leave of the respondent District Court judge to issue
summonses against them alleging they had committed the indictable offence of fraud
contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001. They
sought to quash the issue of the summons asserting that the abolition of preliminary
50
[2010] IESC 1; [2010] 1 I.R. 609.
[2013] IEHC 396; unreported High Court, Hogan J., September 5, 2013.
52
[2008] IESC 37; [2008] 4 I.R. 379.
53
ibid., at para. 37.
54
The decision to prohibit is under appeal to the Supreme Court by the DPP.
55
[2013] IEHC 321; unreported High Court, Hogan J. July 9, 2013.
51
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examinations by the Criminal Justice Act 1999 had impliedly abolished the right of a
private individual to prosecute indictable offences.
Hogan J. rejected this argument in the absence of explicit provision for such abolition.
He declined to hold that the summonses should not have issued but held that s. 53 of
the Criminal Justice (Theft and Fraud Offences) Act 2001 required the consent of the
DPP before the applicants could be further prosecuted.
DPP v Judge O’Sullivan,56
The case related to a determination of a District Court appeal. The six-month time
limit for prosecuting summary offences provided for in s. 10(4) of the Petty Sessions
(Ireland) Act is extended to 12 months for offences involving the Garda Síochána
Ombudsman Commission (GSOC). In this case a complaint was made outside the six
months but within 12 months.
A preliminary argument was made on the appeal that the case was not in fact a GSOC
case and was therefore time barred. The argument was based on an assertion that the
right to refer cases to GSOC which is conferred by statute on the Garda
Commissioner had not then been validly delegated to garda superintendents.
Therefore, it was argued, there was not a valid referral to GSOC and their
investigation was not one made under the Act and thus the case could not enjoy the
extended time limit.
Oral evidence was given before the Circuit Court by inter alios the former Garda
Commissioner. The document which delegated the power was also exhibited. The
Circuit Court judge held that the document was written in the past tense thus casting
doubt over whether the delegation had been made by that document and whether it
subsisted at the time the referral was made.
Judicial review proceedings were brought by the DPP. Hogan J. held that the issue
was one which went to jurisdiction and that the Circuit Court Judge fell into error in
determining the delegation was invalid. The case is noteworthy for the willingness of
the High Court to visit the merits of the impugned decision before the Circuit Court.
DPP (McDonald) v Gilvarry57
The defendant was charged with speeding. The provisions of s. 80(3) of the Road
Traffic Act 2010 required that an accused be furnished with a photograph of the
vehicle taken by the speed detection equipment in advance of the trial. Kearns P. held
inter alia there was inadequate evidence that he had been served and that “There must
be evidence that it has in fact been given to an accused person before the trial
commences.”
Kennedy v Gibbons58
The applicant was charged with speeding which carries mandatory penalty points. The
District Judge refused to consider the possibility of striking the charge out on the basis
of a donation to the poor box. Hogan J. distinguished the case from the decision of
56
[2014] IEHC 339; unreported High Court, Hogan J., July 2, 2014.
[2014] IEHC 345; unreported High Court, Kearns P., July 11, 2014.
58
[2014] IEHC 67; unreported High Court, Hogan J., February 20, 2014.
57
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Kearns P. in DPP v Ryan59 and held that where the Oireachtas had provided for
mandatory penalty points for an offence the District Court could not strike the case
out on a donation to the poor box:
“In the case of those traffic offences where the imposition of penalty points has
been made mandatory by the Oireachtas via the enactment of the Road Traffic
Act 2002, and where the Probation of Offenders Act 1907 has been disapplied
to such offences by s. 55 of the Road Traffic Act 2010, the District Court’s
common law poor box jurisdiction must be taken to have been superseded by
these statutory provisions. In such cases it must accordingly be concluded that
the District Court enjoys no jurisdiction to impose an informal sanction short
of actual conviction such as accepting a donation to the poor box, as this
would amount to an indirect circumvention of these statutory provisions.”60
James Dwyer BL
July 14th 2014
59
60
[2011] IEHC 280; [2011] 3 I.R. 641.
ibid., at para. 26.
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