Carroll v Judge Fahy

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 21 October 2019
• Neutral Citation: [2019] IECA 258
• Date: 21 October 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 2019 8

REGINALD CARROLL

APPELLANT

V

JUDGE MARY FAHY

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

[2019] IECA 258

Birmingham P.

Edwards J.

Kennedy J.

Record No: 2019 8

High Court Record No. 514/2018 JR

THE COURT OF APPEAL

Judicial review – Prosecution – Prohibition – Appellant seeking judicial review – Whether the appellant satisfied the threshold in so far as he sought leave to apply for relief by way of judicial review against the respondents

Facts: The appellant, Mr Carroll, claimed reliefs by way of judicial review in respect of two entirely separate matters. His application was grounded upon an affidavit sworn and filed by him on the 25th of June 2018. In the first instance he sought leave to apply for an order of certiorari quashing the decision of the second respondent, the Director of Public Prosecutions (DPP), not to prosecute certain parties on foot of complaints made by the appellant concerning incidents of alleged harassment, assaults, trespasses to his property, and threats to kill him. The appellant also sought an order of mandamus to compel the DPP to initiate prosecutions. The second matter in respect of which the appellant claimed relief by way of judicial review related to certain criminal proceedings before Clifden District Court, presided over by the first respondent, Judge Fahy. The appellant complained that the first respondent was, on two occasions, i.e., on the 22nd of February 2018 and on the 26th of April 2018, requested to recuse herself on the grounds of alleged bias but that she refused to do so. In respect of that ongoing prosecution the appellant sought leave to apply for judicial review for various reliefs including an order of prohibition preventing the proceedings from continuing before the first respondent. Further, or in the alternative, the appellant sought an order of mandamus requiring the District Court to facilitate a request by him to be afforded a trial by jury. His statement also sought various other orders by way of ancillary relief including discovery of documents from the respondents but also from various third parties; orders that the respondents and various third parties be investigated and/or prosecuted and/or have other (unspecified) action taken against them; and an order that certain financial charges levied against him in connection with the impounding of his vehicle be refunded to him. The appellant appealed to the Court of Appeal against an order of the High Court made on the 22nd of October 2018 refusing to grant leave to the appellant to apply by way of judicial review for the various reliefs sought by him in the ex-parte application moved on that date.

Held by the Court that, in the circumstances, the appellant had failed to satisfy the low threshold specified in G v Director of Public Prosecutions [1994] 1 I.R. 32 in so far as he sought leave to apply for relief by way of judicial review against the respondents.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered the 21th of October 2019 by Mr. Justice Edwards .

Introduction

1 This is an appeal against an order of Noonan J in the High Court made on the 22 ^nd of October 2018 refusing to grant leave to the appellant to apply by way of judicial review for various reliefs sought by him in an ex-parte application moved on that date.

2 Specifically, the appellant had sought the reliefs set forth in paragraph (D) of the Statement filed on the 25th of June 2018, and signed by the appellant, as required by Order 84, rule 20(2)(a) of the Rules of the Superior Courts, on the grounds set out at paragraph E of the said Statement.

3 We have not been provided with any record or transcript of the judgment in the court below, merely the order of the court as perfected. It is understood that such reasons as were given were given ex tempore. Be that as it may, in circumstances where the appellant's application for leave to apply for judicial review was refused it is not necessary for this court to have regard to the terms of the judgment of the court below because the appeal before this court takes the form of a full rehearing.

Nature of the leave sought

4 It is clear from the Statement dated 25th of June 2018 that the appellant claims reliefs by way of judicial review in respect of two entirely separate matters. His application is grounded upon an affidavit sworn and filed by him on the same date, i.e., the 25th of June 2018.

5 In the first instance he seeks leave to apply for an Order of Certiorari quashing the decision of the second named respondent, i.e. the Director of Public Prosecutions (DPP), not to prosecute certain parties on foot of complaints made by the appellant concerning incidents of alleged harassment, assaults, trespasses to his property, and threats to kill him. The parties in question are two named neighbours of the appellant. It appears that the decision of the DPP was communicated to the appellant in a letter dated the 2nd of November 2016. It further appears that the appellant, as was his entitlement, upon receiving notice of the DPP's said decision requested a summary of the DPP's reasons for her decision not to prosecute. This request which was dated the 28th of November 2016 was responded to by the DPP by means of a letter dated the 30th of November 2016 which cited “insufficient evidence” as the reason for the decision not to prosecute. In addition to seeking the said Order of Certiorari as his primary relief, the appellant also seeks an Order of Mandamus to compel the DPP to initiate prosecutions at this point.

6 The second matter in respect of which the appellant claims relief by way of judicial review relates to certain criminal proceedings before Clifden District Court, presided over by the first named respondent. The appellant complains that the first named respondent was, on two occasions, i.e., on the 22nd of February 2018 and on the 26th of April 2018, requested to recuse herself on the grounds of alleged bias but that she refused to do so. It is understood that on the 25th of October 2018, being three days after the date of the ex parte application before the High Court in the present judicial review proceedings, the criminal proceedings in question, which involved a summary prosecution of the appellant for alleged dangerous driving, and also for driving without insurance, on the 12th of April 2017 at Mweenish, Carna, County Galway, were part heard before the first named respondent at Clifden District Court, following which they were adjourned with respect to hearing the balance of the case to a date in January 2019. It is further understood that since then the said proceedings have been further adjourned from time to time and remain adjourned pending the outcome of this appeal.

7 In respect of that ongoing prosecution the appellant seeks leave to apply for judicial review for various reliefs including an Order of Prohibition preventing the proceedings from continuing before the first named respondent. Further, or in the alternative, the appellant seeks an Order of Mandamus requiring the District Court to facilitate a request by him to be afforded a trial by jury. His statement also seeks various other orders by way of ancillary relief including discovery of documents from the named respondents but also from various third parties; orders that the named respondents and various third parties be investigated and/or prosecuted and/or have other (unspecified) action taken against them; and an order that certain financial charges levied against him in connection with the impounding of his vehicle be refunded to him.

The test to be applied at the leave stage

8 It is well settled law that the test to be applied at the leave stage in judicial reviews generally is that set forth in the decision of the Supreme Court in G v Director of Public Prosecutions [1994] 1 I.R. 32, which requires:

(a) that the applicant has sufficient interest in the matter to which the application relates to comply with Order 84 rule 20(4);

(b) that the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground in the form of relief sought by way of judicial review;

(c) that on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks;

(d) that the application has been made promptly and in any event within the three months or six months time limit provided for in Order 84 rule 21(1), or that the court is satisfied that there is a good reason for extending the time limit;

(e) that the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.

The special protection enjoyed by the DPP

9 A further legal consideration relevant to the first set of reliefs claimed by the appellant and directed at the second named respondent is that under Irish law the DPP enjoys a partial immunity from judicial review. While in some circumstances a decision to prefer charges, or sometimes not to prefer charges, can be challenged, such circumstances are not the norm and where they arise they represent an exception to the general rule which is that in most cases such decisions are not reviewable.

10 In the case of DC v The Director of Public Prosecutions [2005] 4 IR 281 Denham J stated the general position in these terms:

“The Constitution and the State, through legislation, have given to the respondent [the DPP] an independent role in determining whether or not the prosecution should be brought on behalf of the people of Ireland. The respondent having taken such a decision, the courts are slow to intervene.”

11 Indeed, as the current Chairman of the Bar Council, Mr. Micheál O’Higgins SC, remarked...