Barry v Fitzpatrick

• Jurisdiction: Ireland
• Judgment Date: 01 January 1996
• Date: 01 January 1996
• Court: High Court

(S.C.)

Barry

and

Fitzpatrick

- Certiorari - Discretionary nature of remedy - Refusal of remedy where force of order which applicant seeks to have quashed is spent.

1. S. 24 of the Criminal Procedure Act, 1967, provides: "(1) The court shall not remand a person for a period exceeding eight days, except where this section otherwise provides. (2) Where the court remands a person on bail, it may remand him for a longer period than eight days if he and the prosecutor consent. (3) Where the court remands a person in custody (other than on the occasion of his first appearance before the court) it may remand him for a period exceeding eight days but not exceeding thirty days if he and the prosecutor consent." On 21 February, 1994, District Judge Fitzpatrick made an order remanding the applicant on bail on a number of charges to a sitting of the District Court on 28 March, 1994. On 13 April 1994 District Judge Hogan made an order remanding the applicant on bail on a number of charges to a sitting of the District Court on 11 May, 1994. On 24 May, 1994, District Judge McMenamin made an order remanding the applicant on bail on a number of charges to a sitting of the District Court on 28 June, 1994. The applicant instituted three sets of judicial review proceedings which respectively sought orders of certiorari quashing the remand orders of District Judge Fitzpatrick, District Judge Hogan and District Judge McMenamin on the grounds that there was no jurisdiction to remand the applicant on bail for a period exceeding eight days in circumstances where he did not consent to being so remanded. In a judgment delivered on 28 October, 1994, Keane J. refused the applications in respect of the orders made by District Judge Fitzpatrick and District Judge Hogan. He pointed out that some useful purpose must be served before the High Court will quash an order by means of an order of certiorari. As the remand orders were spent and no longer of legal effect, the granting of orders of certiorari would have no practical effect and it would mean that the District Court would simply proceed with the preliminary examination. Moreover, as regards the order made by District Judge Fitzpatrick on 21 February, 1994, Keane J. held that while the applicant had objected to a six-week adjournment and did not expressly consent to a five-week adjournment, the absence of a specific objection to the five-week adjournment amounted to a consent by implication for the purposes of s. 24 and thus...