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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 Courtin the above case. All dismissed AP’s appeal in terms chilling, but also of some assistance topractitioners 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. Iagree with those judgments and the orders which they propose. In agreeing with thosejudgments which address all the issues arising for decision in this appeal I express noview on any other matter referred to in the course of the appeal. There is aprocedural 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’sjurisdiction in judicial review proceedings as being confined to the grounds specifiedin the order granting leave to bring judicial review proceedings, or any additionalgrounds arising from an amendment to that order.

Because there has been a not insignificant number of appeals in which there was alack of clarity and even confusion as to the precise issues which were before the HighCourt I propose to make a number of observations in that regard.

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Judicial review constitutes a significant proportion of the cases which come beforethe High Court and before this Court on appeal. A party seeking relief by way ofjudicial review is required to apply to the High Court for leave to bring thoseproceedings and can only be granted such leave on specified grounds when certaincriteria, required by law, are met. In most cases the applicant must demonstrate thathe or she has an arguable case in respect of any particular ground for relief and thereare also statutory provisions setting a somewhat higher threshold for certain specifiedclasses of cases.

In the interests of the good administration of justice it is essential that a partyapplying for relief by way of judicial review set out clearly and precisely each andevery ground upon which such relief is sought. The same applies to the various reliefssought.

It is not uncommon in many such applications that some grounds, and in particularthe ultimate ground, upon which leave is sought are expressed in the most generalterms as to the alleged frailties of the decision or other act being impugned, rather inthe nature of a rolled up plea, and alluding generally to want of legality, fairness orconstitutionality. This can prove to be quite an unsatisfactory basis on which to seekleave or for leave to be granted particularly when such a ground is invariablyaccompanied by a list of more specific grounds.

Moreover, if, in the course of the hearing of an application for leave it emerges that aground or relief sought can or ought to be stated with greater clarity and precisionthen 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 reviewproceedings on the merits, for new arguments to emerge in those of the applicantwhich in reality either go well beyond the scope of a particular ground or groundsupon which the leave was granted or simply raise new grounds.

The court of trial of course may, in the particular circumstances of the case, permitthese matters to be argued, especially if the respondents consent, but in thosecircumstances the applicant should seek an order permitting any extended or newground to be argued. This would avoid ambiguity if not confusion in an appeal as tothe grounds that were before the High Court. The respondents, if they object to anymatter being argued at such a hearing because it goes beyond the scope of thegrounds on which leave was granted, should raise the matter and make theirobjection clear. Although it did not arise in this particular case, it is alsounsatisfactory for objections of this nature to be raised by the respondents at theappeal stage when no objection had been expressly raised at the trial or there iscontroversy as to whether this was the case.

In short it is incumbent on the parties to judicial review to assist the High Court, andconsequentially this Court on appeal, by ensuring that grounds for judicial review arestated clearly and precisely and that any additional grounds, subsequent to leavebeing granted, are raised only after an appropriate order has been applied for andobtained.”

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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:

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“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 havereferred 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 waitfor the wanted person to gratuitously fall into their laps by being arrested in relation tosome other offence. Equally, the issuing of a warrant need not trigger a nationalmanhunt, nor need it involve the deployment of totally disproportionate time andresources in an effort to execute the warrant. Nor should an applicant be granted reliefwhere he himself has contributed to the delay in executing the warrant by furnishingfalse particulars of his identity or address or by engaging in other forms of deceit andevasion to frustrate the gardai in the execution of their duties. Any judge who has satin Cloverhill Courthouse to deal with bail applications on a Monday will be wellaware that a huge amount of garda time is taken up, presumably to the detriment ofother police work, in searching out and apprehending individuals some of whom havea 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 ofbench warrants may be simply stated. There is an obligation on the Garda Siochana toexecute same promptly or within a reasonable time. A failure to do so may amount toblameworthy prosecutorial delay. However, members of the gardai can notautomatically be assumed to be in default where immediate execution of warrantsdoes not occur, bearing in mind the multiple other duties and obligations requiring tobe performed by them. They may encounter all sorts of difficulties whenendeavouring to execute bench warrants which are brought about by deceit and falseinformation given to them. Nonetheless, it must be the case that a point in time willarise where the continuing failure to execute a bench warrant will amount toblameworthy prosecutorial delay sufficient to trigger an enquiry whether anapplicant's right to an expeditious trial has been compromised to such a degree as towarrant prohibition. It is impossible to be more specific as to what timeframe for theexecution of a warrant should obtain other than to stress that warrants must beexecuted promptly or at least within a reasonable time. For reasons set out below, thatpermissible timeframe must be one of shorter duration where summary proceedingsare concerned.

DELAY IN SUMMARY PROSECUTIONS

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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 whatwas stated by Powell J. in delivering the unanimous opinion of the US Supreme Courtin Barker v. Wingo 407 US 514 [1972]. That court there emphasised that a defendant'sconstitutional right to a speedy trial could not be established by any inflexible rule butcould be determined only on an ad hoc balancing basis in which the conduct of theprosecution and that of the defendant are weighed. As Powell J. stated:-

"A balancing test necessarily compels courts to approach speedy trial cases on an adhoc basis. We can do little more than identify some of the factors which courts shouldassess 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, andprejudice to the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is somedelay which is presumptively prejudicial, there is no necessity for enquiry into theother factors that go into the balance. Nevertheless, because of the imprecision of theright to a speedy trial, the length of delay that will provoke such an enquiry isnecessarily dependant upon the peculiar circumstances of the case. To take but oneexample, the delay that can be tolerated for an ordinary street crime is considerablyless than for a serious, complex conspiracy charge."

The latter part of this citation was adopted with approval by Finlay C.J. in TheDirector of Public Prosecutions v. Byrne [1994] 2 I.R. 236 . The importance of thereference is to show that the courts both in the U.S. and in this jurisdiction do notsimply drop a time guillotine on the prosecution of summary offences but ratheremphasise instead that delay in minor cases is less to be condoned or tolerated. It is ofsome 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

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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 summaryprosecutions than that which arises in the case of indictable offences. Obviously,however, it follows from everything already said that delay will more rapidly becomeblameworthy and delays of lesser magnitude will be seen as more likely to beintolerable where summary proceedings are concerned.”

A Matter of Life and Death

A particularly striking and strident judgment on prohibition in the District Court, butone with far broader implications, was delivered in the case of Sparrow v. Minister forAgriculture & Judge Hamill (Unreported Supreme Court, 29th of January 2010). Ms.Justice Denham, delivering the unanimous judgment of the Court described the legalquestion involved in the following terms (p.7):

“In essence the applicant seeks to prohibit his summary trial in the DistrictCourt on the basis that there is medical evidence to the effect that his health isso 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

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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. Thisincluded the following:-

(a) The applicant continues to practice as a veterinary surgeon, although in alimited 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 proceedingsrelating to the charges over the years since the charges in the District Courtwere served.”

District Judge Hamill having considered the evidence was not satisfied that there weresuch exceptional circumstances as would bar the District Court from continuing tohear the case. Dismissing Mr. Sparrow’s appeal from Mr. Justice Sheehan’s refusal togrant prohibition, the appeal laid emphasis on the significance of the District Judge’srole at first instance in these matters and set out once again the test for prohibitioncases 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 thatJudge Hamill had no choice in his decision once the medical evidence wasgiven on behalf of the applicant. This fundamental error undermines the wholeappeal. In a situation such as arose before Judge Hamill, where medicalevidence is given on behalf of one party in a case, the court is not bound tocomply with that evidence. The duty and responsibility of the judge is to hear,consider and assess all the evidence and then to make a judicialdetermination. The requirement that the judge make a judicial decision is nottrumped by medical evidence on behalf of one party. The decision to be madeis that of the judge, on all the evidence, it is not a medical decision for theapplicant's cardiologist.

Exceptional circumstances

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19. It is only in cases where there are exceptional circumstances that a courtwill intervene and make an order prohibiting a prosecution and it will do soonly if there is a real or serious risk of an unfair trial. The burden rests uponan applicant to show that arising from the facts of the case there is a real orserious risk of an unfair trial. The applicant rests this application upon hismedical condition, submitting that his health is so precarious that proceedingwith 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 wasnot based on the medical evidence alone. That decision was grounded on thecumulative effect of several factors. Those factors were: (a) it was a casebeing brought after many years, with the consequential difficulties in suchcases; (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 givenby Dr. Moore before Judge Hamill. I am satisfied that no error was made byJudge Hamill, nor by the High Court, in their approach taken to the medicalevidence.”

Missing evidence

It is rare indeed for our Superior Courts to intervene on the grounds that some item ofmissing evidence would inevitably render a trial unfair. However two cases whereprohibition was granted were Edward Keogh v. The DPP [2009] IEHC 502 and R C vDPP [2009] IESC 32.

The latter case concerned the non-availability of telephone records. The High Courtand refused prohibition but in allowing the appeal Ms. Justice Denham stated thefollowing (para.27 et seq.):

“27. The prejudice alleged by the appellant is that the telephone records of thecomplainant, if available, would have corroborated his account of his contact with thecomplainant between May, 2001 and September, 2001. Such telephone records wouldconfirm that the complainant regularly phoned the appellant and sent him textsduring that period, and that this would corroborate his oral evidence. Thus they go tothe core issue of the case, the credibility of the appellant and the complainant.

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28. The delay in prosecuting the case had a significant effect. It appears reasonable inthe circumstances that the appellant took the view that no prosecution wasproceeding, after the interviews, where he denied the allegations, in the autumn of2001. 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 telephonecalls and records became apparent. It appears that Vodafone keeps records for amaximum of three years. While it may have been possible to obtain the records inMarch, 2004, it is noteworthy that there was a delay of 17 months between the requestfor 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 theparticular circumstances of this case, including the approach taken in theinvestigation, and the questions asked and answered as to mobile phone use, togetherwith the failure of the prosecution to seek the phone records of the complainant, whileobtaining those of the appellant, which create circumstances where there is a real riskof an unfair trial.”

Keogh concerned missing cctv in the context of an investigation and prosecutionwhich alleged that the Applicant carried a black bag in which was a sawn off shotgunand 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 situationwhere Gardaí had a report that three men were engaging in suspicious activityoutside Elenora's public house, I believe that it would have been reasonable toexpect that the Gardaí would have sought out CCTV footage from that public houseand would have done so at an early stage. I think there is a reasonable probabilitythat the suspicious activity which gave rise to the complaint would have beencaptured on film. If the three individuals were shown on film, it appears very likelyindeed 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 ofenormous significance. That being so, in summary, the position is that material thatwas potentially highly relevant to the question of guilt or innocence was readilyavailable but was not sought until too late. The delay in seeking out the footageoccurred, notwithstanding that the solicitor for the applicant had disclosed a keeninterest in CCTV footage within eight days of the arrest. A case, where valuableobjective evidence might have been available, and as a matter of probability was

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available, will instead, if it proceeds, depend on the testimony of a single gardawitness. That is not a satisfactory state of affairs. In these circumstances, I believethat 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 beenreached where it can be said that other than perhaps the very straight forwardtype of Braddish case, it would now require something exceptional topersuade a court to prohibit a trial. This in my view is in accordance withprinciple. The point was made in McFarlane v DPP & Special CriminalCourt [2007] 1 IR 134 that the fact that an applicant was unsuccessful injudicial review proceedings did not detract from the power and duty of a courtof trial to assess the case developed at the trial. At paragraph 34 of hisjudgment 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 aprima facie case at the appropriate stage. More than that it will be able toassess, on the evidence as it actually develops, whether there is any unfairnessto the applicant, incapable of remedy by the trial court, for which theprosecution is responsible. Its powers in this regard are wholly unaffected bythe result of the present applicant. "

This in my view, is an important observation. The constitutional right theinfringement of which is alleged to ground an applicant's entitlement toprohibit a trial, is the right to fair trial on a criminal charge guaranteed byArticles 38 and 34 of the Constitution. The manner in which the Constitutioncontemplates that a fair trial is normally guaranteed, is through the trial and ifnecessary appeal processes of the Courts established under the Constitution.The primary onus of ensuring that that right is vindicated lies on the court oftrial which will itself be a court established under the Constitution and obligedto administer justice pursuant to Article 34. It is in my view therefore, entirelyconsistent with the constitutional order, to observe that it will only be inexceptional cases, that Superior Courts should intervene and prohibit a trial,particularly on the basis that evidence is sought to be adduced( in the case ofvideo 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 ofFennelly J in Savage v Director of Public Prosecutions [2009] 1 IR 185 , in apassage with which Hardiman J expressed agreement:

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"(a) It is the duty of the prosecution authorities, in particular An GardaSíochána, to preserve and maintain all evidence, which comes into theirpossession, having a bearing or potential bearing on the issue of guilt orinnocence of the accused. This duty flows from the unique and investigativerole of the police force (see Braddish v DPP [2001] 3 IR 127 ). The extent towhich that duty extends to seeking out evidential material not in the possessionof the gardaí does not arise in the present case (but see Dunne v Director ofPublic Prosecutions [2002] 2 IR 305 ).

(b) The missing evidence in question must be such as to give rise to a realpossibility that, in its absence, the accused will be unable to advance a pointmaterial to his defence. This is, like the garda obligation to retain andpreserve evidence, to be interpreted in a practical and realistic way and "noremote, theoretical or fanciful possibility will lead to the prohibition of atrial."(See Dunne v Director of Public Prosecutions [2002] 2 IR 305 at page323).

(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 beput forward at the trial. The court will have regard to the extent to whichaspects of the prosecution case are contested. In Bowes v Director of PublicProsecutions [2003] 2 IR 25 , the fact that the motor car in which theapplicant was alleged to have been travelling had been lost by the gardaí wasinsufficient, when the applicant did not contest the fact that he was driving itand the charge related to possession of drugs found in the boot of the car. In asecond applicant's appeal in Bowes , the court had regard to the"circumstantial" character of the prosecution case of dangerous driving. InMcFarlane v Director of Public Prosecutions [2006] IESC 11 [2007] 1 IR134 , the existence of photographic evidence of the missing fingerprints washighly material to the complaint that the original items had been lost by thegardaí.

(e) The applicant must show, by reference to the case to be made by theprosecution, in effect the book of evidence, how the allegedly missing evidencewill affect the fairness of his trial. Hardiman J said in McFarlane v Directorof 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 toengage in a specific way with the evidence actually available so as to make therisk apparent."

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(f) Whether the applicant, through his solicitor or otherwise makes a timelyrequest to the prosecution for access to or an opportunity to have the articleissue expertly examined may be highly material. In Bowes V Director ofPublic Prosecutions [2003] 2 IR 25 the "very belated" request was critical tothe refusal of relief. On the other hand in Dunne v Director of PublicProsecutions [2002] 2 IR 305 , no request was made until some five monthsafter charge, and long after there was any possibility of producing a videotape. In that case, however Hardiman J stated at page 325:-

"There is … a responsibility on a defendant's advisers, with their specialknowledge and information, to request material thought by them to berelevant."

However a suspect or an accused person will be unable to make a timelyrequest, if the gardaí have destroyed or parted with possession of the material.Thus, they must give consideration to the likely interests of the defenceperforming against such decisions.

(g) The essential question, at all times, is whether there is a real risk of anunfair 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 whosefault it is that the evidence is missing, and what the degree of that fault maybe". (See Dunne v Director of Public Prosecutions [2002] 3 IR 305 at page322)."

Applying these principles to the present case, it seems to me clear that this isnot a case in which it can be said that the alleged missing evidence is central tothe case being made by the prosecution. Unlike Braddish and Ludlow , theCCTV evidence here is not the basis of the identification of the accused. Onthe contrary, there was direct evidence from witnesses placing the accused atthe 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, withsome justice, that the Applicant has wholly failed to engage with the specificsof the case made. This is particularly telling in the present case, since it is byno means self-evident how, as a matter of reality, the missing evidence couldassist the case the accused wished to make. It is certainly not for the Court tohypothesise as to what possible version of the case the CCTV's footage mightsupport.

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

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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 asto the steps taken to secure the evidence has not been challenged either byreplying affidavit, or by cross-examination. On that uncontested evidencetherefore, this is not a case of inaction or incompetence on the part of thegardaí. Garda Enright sought to copy the CCTV footage. He was told thatfacility was not available. That evidence is unchallenged. He did obtain whatwas available at the time in the form of photographic stills. When moreinformation was sought, the gardaí returned and sought to make a copy but atthat time the disk had been overwritten. Significantly, there was no evidenceof the state of technology in 2004 (which is the relevant date). We do notknow if technology was readily available to make copies in the absence of afacility to burn a CD and we do not know how disruptive such process mighthave been, or how soon after the incident it would have been necessary to seekto make such a copy. Finally, in this regard, while the majority decision inDunne establishes that no clear and definite distinction can be made betweenthose cases in which evidence has been obtained by the gardaí and thenmislaid or released, and those where the evidence has not been obtained in thefirst place, that does not mean that that distinction is not relevant to theassessment the Court must make. The duty to seek out and preserve evidence,is one which must, on all the authorities, be interpreted realistically. In thatcontext, the fact the gardaí have never had the particular evidence in theirpossession, but made efforts to obtain it, is relevant in the assessment of thecase made. To adopt the words of Geoghegan J in Mitchell , it would in myview be going too far to prohibit this trial on the grounds the gardaí ought tohave taken some unspecified steps at an unspecified time to secure more byway of evidence than Garda Enright had. Therefore, while there is no doubtthat the Applicant's solicitors acted promptly in seeking the CCTV evidence,as well as the statements and other pieces of documentary evidence, it appearsto me that the substance of the Applicant's case has not advanced muchbeyond the "no video - no prosecution " case stigmatised by Dunne J in Fagan

14

, and accordingly, in my view, Murphy J was entirely correct to reject theapplicant's claim.”

What is however perhaps most notable about this judgment is the somewhat radicalsuggestion that there might have to be a reconsideration of whether judicial review isin fact the appropriate remedy in missing evidence and delay cases and indeed if onconsideration of such application the appropriate test is whether, on the balance ofprobabilities there is a real risk of an unfair trial. In this regard O’Donnell J. states atthe 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 judgmentsof the Superior Courts that two lines of authority which have occupied asubstantial part of the judicial review lists of the High Court and the lists ofthis Court on appeal - delay and missing evidence cases - can be traced back toa 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 judicialreview is the appropriate remedy where a challenge is brought( in that case ongrounds of delay) to an anticipated trial on indictment in the Circuit Court.Whether that is necessarily so, and whether indeed, the appropriate test forprohibition of a pending trial in a court established under the Constitution isthe existence, on the balance of probabilities, of a "real risk " of an unfair trial,

are matters which might deserve further consideration. It is noteworthyhowever that the Court in The State (O'Connell) v Fawsitt , expressly limitedits decision to the case of trial on indictment. The judgment accepted that inthe case of summary trials, it may well be that an equal or alternative remedywould be an application to the judge to dismiss on grounds of delay, whichwas the issue in that case, but the same must apply in the case of an allegationof unfairness created by the absence of crucial evidence. Such a course is nothowever without its own difficulties, as the decisions on abuse of process inthe neighbouring jurisdictions have shown, (see: Valentine, CriminalProcedure in Northern Ireland , 2nd Edition 2010, page 285 ff), and thedecision in DPP v O'C 2006 IESC 54 makes it clear that no abuse of theprocess challenge can be brought, at least in the Central Criminal Court. Butthe application for dismiss of a summary trial contemplated in The State(O'Connell) v Fawsitt would not only be an alternative remedy, but one

15

which, at least potentially, would be both speedier and cheaper than anapplication to the High Court for judicial review. It might also have the notinsignificant benefit of permitting the issue of the fairness of the trial to bedetermined by the court of trial of the particular case, a court with unrivalledexperience of similar trials and indeed the court with the Constitutionalobligation of ensuring a fair trial. In these days of vastlyoverburdened lists in the Superior Courts and enormous demands on thepublic purse, it is perhaps desirable to give consideration to whether at least inthe case of summary proceedings such an application would not be apreferable procedure.”

Anything can happen. The reach of exceptional circumstances

In M.G. v. DPP (Unreported, Supreme Court, 31st January 2007) that courtunanimously held that where a complainant had delayed making a criminalcomplaint as part of a process of threats for financial gain, that this amounted to"wholly exceptional circumstances" which required the grant of prohibition. Similarfacts 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 theSupreme Court in the case of Higgins v The DPP [2010] IESC 46. That Court refusedrelief in a claim brought by virtue of the fact that notwithstanding the fact an accusedhad been sent forward on signed pleas in relation to an assault contrary to S.3 of theNon-Fatal Offences Against the Person Act 1997, the DPP preferred subsequentlythe more serious offence of assault causing serious harm. O’Donnell J. observed interalia:

“However I cannot accept that clumsiness or lack of forethought or simpleerror on the part of the prosecution can, without more, amount to an abuse ofthe process. A trial of the Appellant on the s.4 charge could not remotely besaid to be something less than a trial in due course of law as required underArticle 38 of the Constitution. On the contrary, to prevent a trial on the chargeobviously appropriate to a serious incident would be to afford to the people ofIreland something less than they are entitled to expect from the criminaljustice system.”

Delay & Trial on Indictment

P McC v. The DPP [2011] IESC 9 is the most recent decision from the SupremeCourt on this particular topic. The Applicant faced a charge of having sexualintercourse with a mentally impaired person contrary to Section 5(1) of the CriminalLaw (Sexual Offences ) Act 2003. He sought to restrain his trial on the grounds ofundue and the case involved the application of the “balancing test”. For presentpurposes it suffices, given the recent decision in McFarlane v. Ireland where delaysin the criminal proceedings brought against Mr. McFarlane were found by theEuropean Court of Human Rights to have breached both Articles 6 and 13 of the

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European Convention on Human Rights, to consider the remarks made at the end ofthe judgment whereat the Court rejected the Appellant’s arguments based on the saidConvention. 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 theEuropean Court of Human Rights is clearly set out in law. Under s.2 of theEuropean Convention on Human Rights Act, 2003 Courts in thisjurisdiction are obliged to interpret and apply statutory provisions andrules of law, insofar as possible, subject to the rules of law relating to suchinterpretation and application, in a manner compatible with the State’sobligations under the provisions of the Convention. Section 4(A) of the Actrequires courts to take judicial notice of judgments of the European Courtof Human Rights. This Court will, therefore, interpret provisions of nationallaw concerning the right to a fair trial, for example, in light of theappropriate articles of the Convention, having regard to relevant case law,and will generally apply the interpretation of the Convention adopted bythe Court of Human Rights, this principle being subject only to the provisothat any such interpretation must not be inconsistent with theConstitution.

It is not possible to glean from the jurisprudence of the Court of HumanRights that prohibition necessarily follows in any, or all, cases where therehas been excessive blameworthy prosecutorial delay. I am unaware of anycase in which the court has found that the balancing test, which isprescribed to be carried out within Irish jurisprudence, is an inappropriate,or unsatisfactory, mechanism by which courts in this jurisdiction evaluatethe rights of the parties. Nor is it evident from the case law that, in theevent there has been found to be excessive culpable delay, the Court isnot 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 offencesprosecuted to conclusion.

I am not persuaded that the learned High Court judge misdirected himselfin relation to this aspect of the matter. If he did so, it is a question of purelaw as to whether he applied the correct principles, or not, a matter whichcan be cured by this Court. On the basis of the jurisprudence of theEuropean Court of Human Rights, I am not satisfied that this establishesthat the only effective remedy to be applied, in circumstances such asthose 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

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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 ofcandour/failure to disclose relevant facts and of course the existence of an appropriatealternative remedy. This is not a definitive list, indeed it is unlikely that one couldever be drawn up. The failure to comply with any such requirement may very welldoom an application to failure, or conversely render an opposition ultimatelyunstateable.

To comment on just a couple, in relation firstly to “delay” in bringing applications, ithas been emphasised in numerous cases recently that as regards the time periodswithin which an applicant must get leave, it is often forgotten that the primaryobligation is to move promptly. Guidance on what is called for is provided byKenneally v. The DPP [2010] IEHC 183 and the judgment of Mr. Justice Hediganwhere he states:

“8. The obligation to move promptly for prohibition is of particularimportance in criminal matters. Any delay in determining criminalcharges is to be deprecated. Order 84, r. 21 of the Rules of the SuperiorCourts requires an application, such as this, to be made within threemonths from the date when grounds for the application first arose and, in anyevent, promptly. The applicant had knowledge of the fact the sample had notbeen retained at the very latest on 28/05/2009. This application was made on15/09/2009, some three and half months after that date. It might be possible to

18

argue that they ought to have known the sample would not be retained fromthe very beginning. However, taking the date of their knowledge as28/05/2009, this application is out of time. In any event, the delay between28/05/2009 and two days prior to the trial could not be described as promptaction. In a case such as this, action should have been taken immediately. Anydelay of any kind needs the clearest explanation. No explanation is providedfor the delay in question. This application, therefore, fails, on either the threemonth requirement or the requirement to act promptly.

Also of particular note given the issue under consideration are the comments made byMr. 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. TheDPP & Anor Kearns P. said the following on “Time”:

“The requirement to move promptly is an essential element in our judicialreview jurisprudence.........A period in excess of six months was allowed toelapse before any challenge to the propriety of the search warrant got off theground. Quite apart from the fact that this delay is fatal to the applicant’sclaim for the declaratory relief sought, it also reinforces an unfortunateimpression that the judicial review process in this (as in a number of othercriminal cases) is being deployed in such a fashion as to delay the ordinarycourse of criminal trials in this jurisdiction. In recent years a number ofjudges, myself included, have commented unfavourably about the bringing of

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very late applications and it is a practice which must stop if due respect forour criminal process is to be maintained.”

In Dean v The DPP [2008] IEHC 87, full disclosure of the facts pertinent to thedisposal of the judicial review application had not been brought to the attention of theJudge who granted leave. This proved fatal to the application. Mr. Justice Hediganstated inter alia:

“I cannot over emphasise the importance of this principle. The "leave toapply" provision in the rules is an essential part of the system of JudicialReview and is what makes it all work. But without confidence on the part ofany Judge hearing the application that all relevant matters and law both forand against the application are before him or her the essential ex parte natureof 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 whenany part of the factual matrix of a case is omitted from the matters presentedto a Judge on an ex parte basis the test as to whether this amounts to amaterial non-disclosure should be whether the information was relevant. If itwas then it should have been brought to the attention of the Judge, who mayweigh the actual importance of that information to the case. In my view thestatements made were highly relevant.

I note that no application was brought by the Director of Public Prosecutionsto set aside the grant of leave. This, however, should not prevent the Courtfrom 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 thatAffidavits be sworn in applications by way of judicial review by parties with directknowledge of events. If this is not done on behalf of either an Applicant orRespondent the chances of success are weakened. Indeed in the above mentioned Ujudgment delivered by MacMenamin J. he ruled part of the Affidavit evidence offered

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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 Affidavitshave not been sworn by applicants who they find to have not “engaged with thefacts”. This circumstance usually ends up as a reason why the discretion to grant reliefis declined.

Once affidavits are closed, the traditional view has been that consideration must begiven to the question of cross-examination if conflicts on significant issues arise. Ifthis is not done, it is usually raised by the opposing party or Court on the hearing. Arecent example of this playing out in practice was provided by the judgment deliveredby Hanna J. in O’Connor v. DPP (Unreported 18th of February 2011):

“I turn, momentarily, to one aspect of the applicant’s case. Both Gardaihave sworn affidavits. Both say that no reference was made to panicattacks in the station. The hearing in the District Court was the first theyheard about this. Garda Culhane deposes that the applicant’s doctor gaveevidence to the effect that she accepted that most people suffering fromasthma faced with the circumstances confronting the applicant wouldinform the gardai of their ailment. Very late in the day, literally daysbefore the hearing of this matter, an affidavit was filed sworn by theapplicant’s sister, Elizabeth O’Connor. She had, apparently, given evidencein the District Court. Her terse affidavit described her sister becomingagitated and of the deponent sitting in the front of the patrol car informingGarda Culhane of the applicant’s tendency to suffer panic attacks.

The foregoing spawned an almost immediate replying affidavit from GardaCulhane set in terms that amounted to flat contradiction of everything Ms.O’Connor said with the exception of confirming her presence in theapplicant’s motor vehicle. This caused me, not to mention Mr. PaulAnthony McDermott for the second to fourth-named respondents, towonder what the purpose was of this “chimes at midnight” incursion on theapplicant’s behalf. It seemed to dissipate to a degree the assertedreliance by Mr. Ross Maguire S.C. on the extant finding of special andsubstantial reason by the District Judge. What could its relevance be if notto attempt to undermine the credibility of the affidavits of the Gardai? Andyet, no steps were taken by the applicant (and, for that matter, therespondents) to instigate cross-examination. I refer, without furthercomment, to para. 5-86 of Civil Proceedings and the State (Collins andO’Reilly):-

“The (cross-examination) procedure is of assistance where theaffidavits, on their face, disclose conflicts of fact that are incapable ofresolution. The court cannot resolve such conflicts in favour of theparty on whom the burden of proof lies, usually the applicant.”

Practitioners should be aware that a strict view is being taken however as to whencross-examine should be permitted. Certainly it would seem that any motion tocross-examine in a judicial review application related in some way to aconsideration of whether there was sufficient evidence to convict an accused is

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presently doomed to fail. One such case was Phelim Doyle v. The DPP [2010] IEHC287 where The President said at the end of the judgment:

“By way of comment I would add that I derived little assistance from thecross-examination of Garda O'Brien and Mr. Tarrant as to their recollectionof events in the District Court. I would be firmly of the view that cross-examination of witnesses in applications of this nature is best avoidedunless absolutely necessary.”

But whether such applications are indeed “sufficiency of evidence cases” or whetherthe individual case turns more on an analysis of whether the claimed error called foran analysis/enquiry as to whether such impugned act or omission constituted anerror within or without jurisdiction is certainly a more vexed issue, the resolution ofwhich 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 asubmission 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 inJohn Lynch v. The DPP & Anor (unreported, 9th of July 2010). The case concernedthe failure of the prosecution to properly particularise the charge of burglary. In thisregard and in granting relief Kearns P. stated inter alia (p.6):

“In the present case, the particular arrestable offence referred to on thecharge sheet was burglary. At the hearing, it was suggested by the casepresenter that burglary was generally understood to mean entering a buildingto commit a theft. However, it is certainly the case that the offence of burglarymay be particularised as involving offences other than theft such as enteringwith intent to commit such offences as criminal damage or assult causingharm. In my view to particularise the offence of burglary as involving theoffence of burglary is meaningless and amounts to a failure to specifiy anarrestable offence.........

If this were a case where the applicant had failed to raise the jurisdictionalpoint until after the hearing had been disposed of, I would exercise mydiscretion against granting relief notwithstanding the manifest error on theface of the charge sheet and conviction order in this case. However, theinvalidity of the charge sheet was raised at the outset of the hearing in thismatter. This was therefore not a case where the applicant sat on his handshoarding a valuable legal point for deployment at a later time by way ofjudicial review application if the case outcome was not to his liking. While Iregard with a certain amount of scepticism the suggestion that the applicant'sguilty plea was a direct result of the erroneous ruling of law by the first namedrespondent, the fact nonetheless remains that the ruling made by the firstnamed respondent was indeed erroneous.

In those particular circumstances, I do not believe that this a case of which itmay be said that the applicant's conduct disentitles him to relief. A particular

22

legal point which was open to him to raise was in fact raised and given thatthe first named respondent ruled incorrectly thereon it seems to me that theapplicant is entitled to the order sought.

The case is also by implication of note as the error, such as was found was notconsidered by the High court to be one made within jurisdiction and thereforeimmune 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 ofa crime he should be furnished with the reasons and an adequate explanation for theconviction. He or she must know not only what the court’s decision was but also thereasons why the court reached its decision. Confidence in the judicial process isbased on the assumption that decisions are based on rational foundations and are notarbitrarily arrived at. Moreover, public confidence is best secured when the reasonsfor 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 complexand numerous, where frequently the parties have made written submissions and wherethe decisions are reserved by the judge for further consideration before being finallydelivered. At this level, too, the reasons for the decision are very relevant for theparties and their advisers who have to consider whether an appeal should be taken ornot. In contrast, in the lower courts, and in the District Court in particular, whereheavy lists and crowded schedules do not always afford the district judge the luxuryof reserving judgments, the judge does not always have the time to compose anarticulate, orderly and expansive exposition of the reasons for the judgment. It isessential even in such cases, however, that the accused when leaving the court knowswhat he has been convicted of. There is no room for uncertainty in that aspect of thematter. In my view, it is also essential that the reasons for the conviction are likewiseclear, although the judge may not have had the time to fully or comprehensivelyarticulate the reasoning. In some cases, the reasoning may be obvious and may notrequire elaboration. This would particularly be the case where the judge prefers theevidence of one witness over the evidence of another on a critical matter or where the

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issue for determination is a single factual issue e.g. whether the defendant wasdriving at a speed which exceeded the permitted speed limit. There is no requirementfor the judge in such situations to elaborate the obvious. A pragmatic view must betaken of the time pressures imposed on the district judge by heavy lists. Moreover,detailed reasons are less important where the appeal available from the DistrictCourt is a full de novo hearing. Finally, as already noted, the remedy of judicialreview is always available in exceptional cases where the district judge falls intoserious error. This may be so even when the district judge starts within jurisdictionbut 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 suchunconstitutionality in failing to give adequate reasons. I do not agree. In my view, theDistrict 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 wasevidence that the applicant was “driving” the vehicle and that all the other elementsof the offence were present. It is also clear that in rejecting the submission by theapplicant’s counsel, he did not consider the date in the summons charge sheet fatal tothe prosecution in the circumstances. There was no ambiguity in his decision and onthe facts there was little reason to elaborate further on his reasoning. There can havebeen no confusion on the part of the accused. In these circumstances, I am unwillingto hold that there was unfairness to such an extent that the Court should hold, in thewords 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 muchcomment 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 followingcomments:-

“At the conclusion of the State’s case the applicant and his legal advisorswere required to decide whether they should go into evidence or not. To makethat decision it was essential to know which of the arguments were acceptedand which rejected.

I would be very far from suggesting that judges of the District Court shouldcompose extensive judgments to meet some academic standard of excellence.In practice it would be undesirable - and perhaps impossible - to reservedecisions even for a brief period. On the other hand it does seem, and in myview this case illustrates, that every trial judge hearing a case at first instancemust give a ruling in such a fashion as to indicate which of the arguments heis accepting and which he is rejecting and, as far as is practicable in the timeavailable, his reasons for so doing.”

37. In that case, the district judge delivered himself of a remark which was open todifferent interpretations. In the case before this Court, however, there is no ambiguityin the few remarks made by the District Judge which would suggest bias. Morerecently, O’Neill J. in Kenny v. Judge Coughlan [2008] IEHC 28, (Unreported, HighCourt, O’Neill J., 8th February, 2008), referring to the duty to give reasons onsummary trials, stated:-

24

“[I]n giving decisions, District Court Judges need only make clear the natureof the decision they are making and in unambiguous terms, the basis for thatdecision. It could never be said that where a District Judge is presented withsubmissions on a series of legal points, he or she is obliged to provide a legalanalysis of his/her reasons for accepting or rejecting any of them.” (Ibid, atpp. 22 to 23)

38. The learned judge emphasised that since the appeal from the District Court is afull 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. quotedwith approval the following dicta of Charleton J. in Lyndon v. Collins [2007] IEHC487, (Unreported, High Court, Charleton J., 22nd January, 2007):-

“Now I do not think that it is necessary…that District Judges give reserveddecisions…to a high standard of academic excellence. What is essential,however, is that people know going out of any District Criminal Court whatthey 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 judgereplied:-

“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 atthe conclusion of the prosecution case, the obligation on a District Judge is toconsider the sufficiency of the prosecution evidence when taken as a wholeand taken at its highest.

I do not believe there is an obligation upon a District Judge to furnish detailedreasons, or any reason for refusing such an application once he satisfieshimself 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 wasin error in refusing to give a detailed ruling on the application that there wasno 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

25

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 beingjudicially reviewed. When the decision being reviewed involves fundamentalrights and freedoms, the reviewing court should bear in mind the principles ofthe Constitution of Ireland, 1937, the European Convention on Human RightsAct, 2003 , and the rule of law, while applying the principles of judicialreview. This includes analysing the reasonableness of a decision in light offundamental constitutional principles. Where fundamental rights andfreedoms are factors in a review, they are relevant in analysing thereasonableness of a decision. This is inherent in the test of whether a decisionis 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 BordPleanála did not expressly refer to a concept of proportionality, and while theterm "proportionality" is relatively new in this jurisdiction, it is inherent inany analysis of the reasonableness of a decision.

20. "Proportionality" has been expressly referred to in judicial reviews inrecent years. The doctrine of proportionality has roots in the civil lawcountries of Europe but it has been applied in other common law countries, aswell as in Ireland. For example, in Radio Limerick One Ltd v. IndependentRadio and Television Commission [1997] 2 I.R. 291 , Keane J. stated atpp.311 and 312:-

"The grounds on which the High Court can set aside a decision of a body suchas the commission established by the Oireachtas with specified functions andpowers have been made clear in a number of decisions and need be referred toonly briefly. The locus classicus is the frequently cited passage from the

27

judgment of Lord Greene, M.R. in Associated Provincial Picture HousesLimited v. Wednesbury Corporation [1948] 1 K.B. 223."

Keane J. went on to quote from the Wednesbury case, and from Henchy J. andGriffin J. in The State (Keegan) v. Stardust Victims' Compensation Tribunal.He stated:-

"Thus in the present case, if the only ground on which the commissionterminated the applicant's contract was the carrying of the outsidebroadcasts and they were wrong in law in treating, as they did, thosebroadcasts as advertisements within the meaning of the Act, it isdifficult 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 ofthe criteria proposed by Henchy J. in The State (Keegan) v. StardustVictims' Compensation Tribunal [1986] I.R. 642 .”

Keane J. then discussed the use of the test of proportionality indetermining whether legislation was unconstitutional. The learnedjudge noted that no Irish authority had been cited for the propositionthat the principle of proportionality could be invoked as a test on anadministrative act. He referred to an approach being developed inEngland and stated at p.314 that:-

"Whatever view may be taken as to the desirability of that approach, itcan be said with confidence that, in some cases at least, thedisproportion between the gravity or otherwise of a breach of acondition attached to a statutory privilege and the permanentwithdrawal of the privilege could be so gross as to render therevocation unreasonable within Associated Provincial Picture HousesLtd. v. Wednesbury Corporation [1948] 1 K.B. 223 or The State(Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642formulation. Thus, in the present case, if the amount of advertising inthe applicant's programmes had on two widely separated occasionsexceeded the permitted statutory limit by a few seconds, the permanentrevocation of the licence, with all that was entailed for the livelihoodof those involved, would clearly be a reaction so disproportionate as tojustify the court in setting it aside on the ground of manifestunreasonableness. It is unnecessary to emphasise how remote thatexample is from what admittedly occurred in the present case."

[emphasis added]

This analysis of the proportionality test and the reasonableness testhighlights the underlying similarity, with which I agree.

21. Irish Courts have referred previously to the concept ofproportionality as described in Canada. Costello J. stated in Heaneyv. Ireland [1994] 3 I.R. 593: -

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"The means chosen must pass a proportionality test. They must (a) berationally connected to the objective and not be arbitrary, unfair orbased on irrational considerations; (b) impair the right as little aspossible; and (c) be such that their effects on rights are proportionalto the objective: see Chaulk v. R. [1990] 3 SCR 1303, at pages1335 and 1336."

Costello J. went on to consider whether the restrictions imposed in that casewere proportional to the object sought to be achieved. I would adopt anapproach to the proportionality test similar to that of Costello J..

22. The nature of the proportionality test is that, as described above, it mustbe rationally connected to the objective; not arbitrary, unfair, or irrational.The inherent similarity may be seen in the requirement in O'Keeffe v. An BordPleanála that the decision not be irrational, or at variance with reason orcommon sense.”

A potential consequence of Meadows may be that many impugned adjudications byJudges of “local and limited jurisdiction”, previously determined upon judicial reviewapplications as being immune from challenge by virtue of them being errors (if indeedthey 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 tobuttress and extend somewhat the traditional test applied by the Superior Courts insuch analyses, where the Courts look to see for example whether the particular judgein dealing with an application/submission acted judicially hearing both sides in anunbiased fashion, exercised his or her discretion bona fide bringing their minds tobear on the issue eschewing irrelevant considerations and considering relevantconsiderations.

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 atpara.27:

“..the doctrine of proportionality may require the reviewing court to assess thebalance which the decision maker has struck, not merely whether it is withinthe range of rational or reasonable decisions..... the proportionality test maygo further than the traditional grounds of review inasmuch as it may requireattention to be directed to the relative weight accorded to interests andconsiderations”

ENDS