DPP v The Judges of the [Stated Place] Circuit Court

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 15 July 2021
• Neutral Citation: [2021] IEHC 505
• Court: High Court
• Docket Number: [2021 No. 570 JR]

Between

The Director of Public Prosecutions

Applicant

and

The Judges of the [Stated Place] Circuit Court

Respondent

and

X and The Commissioner of an Garda Síochána

Notice Parties

[2021] IEHC 505

[2021 No. 570 JR]

THE HIGH COURT

Judicial review – Stay – Trial – Applicant seeking the lifting of a stay order – Whether the stay order ought to be varied

Facts: The leave judge, on 21st June 2021, heard an ex parte motion by counsel for the applicant, the Director of Public Prosecutions (the DPP), for leave to bring judicial review proceedings in which the DPP intended to seek the following reliefs: “(i) An order of certiorari by way of judicial review, quashing the orders of [a stated Circuit Court judge] dated 19th May 2021 and 2nd June 2021 made in [stated proceedings]...requiring the Applicant to disclose a copy hard-drive containing specified disclosure materials to [the first notice party’s] solicitor and/or his expert witness in a manner which would permit that material to leave this jurisdiction. (ii) A declaration to the effect that the Applicant...and [the second notice party, the Commissioner of An Garda Síochána] cannot be directed to disclose copy hard-drives containing specified disclosure materials to [the first notice party’s] solicitor and/or his expert witness in a manner which would permit that material to leave this jurisdiction. (iii) An order staying the trial of the Applicant herein pending the determination of these proceedings. (iv) An order of this Court staying the Circuit Court order to disclose the materials at issue, including an interim order to same effect, pending the determination of these proceedings. (v) An order restricting the publication of the first-named notice party accused’s name in connection with these proceedings, pending the conclusion of his trial for child pornography. (vi) An order making provision for release of the DAR in relation to the Circuit Court proceedings dated 19th May 2021 and 2nd June 2021. (vii) Such further or other order as this...Court shall deem just to make, including orders providing for the costs of the application”. The order that followed on that leave application required that the respondents, the Judges of the Circuit Court, and notice parties be put on notice of the application with the matter to be returnable to 12th October. The leave judge made certain associated orders, including (i) an order under s. 45 of the Courts (Supplemental Provisions) Act 1961 prohibiting the publication or broadcast of any matter relating to the proceedings which would or could identify first notice party (which order remained extant) and (ii) “a stay on the trial of the Applicant herein pending the determination of these proceedings”, coupled with liberty on the part of the respondents to apply on 48 hours’ notice to the applicant to vary or remove the stay order. The applicant applied to the High Court for the lifting of the stay.

Held by the Court that, bringing an uberrimae fidei test to bear as regarding the actions of the DPP (and her lawyers) in this application, the DPP and her lawyers had met the obligations that such a test demanded of the ex parte applicant. The Court held that the leave judge was placed by the DPP in a position where he had a full and proper grasp of the facts, issues and law at play. Additionally, the Court did not see that any of the points that counsel for the first notice party had pointed to as having been missing from the leave application would have altered how matters had proceeded.

The Court declined to lift the stay order. The Court proposed (i) varying the stay order so that instead of stating “a stay on the trial of the Applicant herein pending the determination of these proceedings” it instead states “a stay on the trial of the first-named Notice Party herein pending the determination of these proceedings”, and (ii) adding to the orders made by the leave judge an order staying the Circuit Court orders that were intended to be the subject of the judicial review proceedings pending the determination of same.

Application refused.

Summary

This is an unsuccessful application for a lifting of the stay on the trial of Mr X * pending the determination of these judicial review proceedings. This summary forms part of the court's judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 15 ^th July 2021

1 . This matter was heard yesterday and the court is giving judgment today. It involves an application for the lifting of a stay on the trial of Mr X “ pending the determination of these [judicial review] proceedings”, which stay has been ordered by the judge of whom leave was sought (on 21 ^st June) to bring the within proceedings. The leave judge has not to this time granted leave. Instead, he required that the respondent and notice parties be put on notice of the application for leave and has made matters returnable to 12 ^th October next. This court has decided not to lift the stay that was granted by the leave judge. The reason for the overnight turnaround of this judgment is so that Mr X, who is, the court understands, desirous of having his trial proceed later this month, will be able to decide on an informed basis whether or not he wishes to appeal this judgment.

2 . Counsel for Mr X, though challenging the basis on which leave was sought in the within proceedings, emphasised that he was not seeking to suggest that there had been wrongdoing on the part of counsel for the DPP when moving the ex parte leave application. In an abundance of fairness, the court wishes expressly to state the unqualified view of the court that none of the lawyers on the DPP's side did anything remotely wrong at the leave-seeking stage, either deliberately or inadvertently. Lest the foregoing be misconstrued to suggest that there was anything untoward in the bringing of this application, the court notes also that there was nothing untoward in the bringing of this application. In short, no criticism falls to be made of any of the lawyers on either side of these proceedings, and none is made.

3 . On 21 ^st June just gone, the leave judge heard an ex parte motion by counsel for the DPP for leave to bring judicial review proceedings in which the DPP intends to seek the following reliefs:

• “ (i) An order of certiorari by way of judicial review, quashing the orders of [a stated Circuit Court judge] dated 19 ^th May 2021 and 2 ^nd June 2021 made in [stated proceedings] …requiring the Applicant to disclose a copy hard-drive containing specified disclosure materials to Mr X's solicitor and/or his expert witness in a manner which would permit that material to leave this jurisdiction.

• (ii) A declaration to the effect that the Applicant…and the Notice Party Commissioner cannot be directed to disclose copy hard-drives containing specified disclosure materials to Mr X's solicitor and/or his expert witness in a manner which would permit that material to leave this jurisdiction.

• (iii) An order staying the trial of the Applicant herein pending the determination of these proceedings.

• (iv) An order of this Court staying the Circuit Court order to disclose the materials at issue, including an interim order to same effect, pending the determination of these proceedings.

• (v) An order restricting the publication of the first-named notice party accused's name in connection with these proceedings, pending the conclusion of his trial for child pornography.

• (vi) An order making provision for release of the DAR in relation to the Circuit Court proceedings dated 19 ^th May 2021 and 2 ^nd June 2021.

• (vii) Such further or other order as this…Court shall deem just to make, including orders providing for the costs of the application”.

4 . The order that followed on that leave application requires that the respondent and notice parties be put on notice of the application with the matter to be returnable to 12 ^th October next. In addition, the leave judge made certain associated orders, including (i) an order under s.45 of the Courts (Supplemental Provisions) Act 1961 prohibiting the publication or broadcast of any matter relating to the proceedings which would or could identify Mr X (which order remains extant) and (ii) “ a stay on the trial of the Applicant herein pending the determination of these proceedings”, coupled with liberty on the part of the respondent to apply on 48 hours' notice to the applicant to vary or remove the stay order.

5 . The ‘Applicant’ in the judicial review proceedings is the DPP, so the last-quoted portion of the order of the leave judge ought properly to state “ a stay on the trial of the first-named Notice Party herein pending the determination of these proceedings” and the court proposes to vary the existing order so that it states matters so. All of the parties have correctly proceeded thus far on the basis that the order before the court should refer to ‘the first-named Notice Party’ and not “ the Applicant”. What has happened is a slight slip in the form of the order.

6 . As usual, the ex parte application to the leave judge was accompanied by a comprehensive statement of grounds which states, inter alia, as follows:

• “ (i) The Notice Party is currently awaiting trial in relation to allegations dating from 6 ^th October 2015 that he possessed 5182 images of child pornography images, six movies of child pornography, contrary to s.6(1) of the Child Trafficking and Pornography Act 1998. The trial is due to start on [stated date]….

• (ii) The allegation encompassed in the criminal proceedings centres around a…computer on which the images were alleged to have been found and the Applicant prosecutor and the first-named party's solicitor have been engaged in protracted correspondence concerning disclosure. More specifically the said Notice Party's solicitor has requested disclosure of an exact copy hard-drive for the purposes of having it forensically examined....