F(S) v Her Honour Judge Yvonne Murphy, DPP, Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 18 November 2009
• Neutral Citation: [2009] IEHC 497
• Court: High Court
• Date: 18 November 2009

[2009] IEHC 497

THE HIGH COURT

[No. 1424 J.R./2008]

F (S) v Judge Murphy & Ors

BETWEEN:

S. F.

APPLICANT

AND

HER HONOUR JUDGE YVONNE MURPHY, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

CONSTITUTION ART 38

CONSTITUTION ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

COURTS OF JUSTICE ACT 1936 S38

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S6(1)

ATKINS v DPP 2000 1 WLR 1427 2000 2 AER 425 2000 2 CR APP R 248

F (S) v JUDGE MURPHY & DPP 2008 1 IR 619 2007/24/4877 2007 IEHC 232

RSC O.99 r1

USK & DISTRICT RESIDENTS ASSOCIATION LTD v BORD PLEANALA & ORS UNREP MACMENAMIN 8.7.2009 2009 IEHC 346

DPP v KELLY 2008 3 IR 202 2007/19/3829 2007 IEHC 450

CURTIN v CLERK OF DAIL EIREANN & ORS UNREP SUPREME 6.4.2006 2006/13/2688 2006 IESC 27

DUNNE v MIN FOR ENVIRONMENT & ORS 2008 2 IR 775 2007/16/3368 2007 IESC 60

SEKANINA v AUSTRIA 1994 17 EHRR 221

RUSHITI v AUSTRIA 2001 33 EHRR 56

TODD v JUDGE MURPHY & ORS 1999 2 IR 1

DILLANE v IRELAND & AG 1980 ILRM 167 1980/12/2233

AG, PEOPLE v BELL & ORS 1969 IR 24 1971 105 ILTR 41

DPP, PEOPLE v PRINGLE (NO 2) 1997 2 IR 225

LUTZ v GERMANY 1988 10 EHRR 182

HUNT, STATE v O'DONOVAN & AG 1975 IR 39

COUNCIL OF CIVIL SERVICE UNIONS & ORS v MIN FOR THE CIVIL SERVICE 1985 AC 374 1984 3 WLR 1174 1984 3 AER 935

RSC O.84 r26(4)

WADE & FORSYTH ADMINISTRATIVE LAW 9ED 2004 252

USK & DISTRICT RESIDENTS ASSOCIATION LTD v BORD PLEANALA & ORS UNREP KELLY 14.3.2007 2007/59/12596 2007 IEHC 86

CRIMINAL PROCEDURE ACT 1993 S9

CRIMINAL PROCEDURE ACT 1993 S2

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.2

COURTS OF JUSTICE ACT 1924 S31

COURTS OF JUSTICE ACT 1924 S63

CONSTITUTION ART 34.3.4

COURTS & COURT OFFICERS ACT 1995 S32

OVEY & WHITE JACOBS & WHITE: THE EUROPEAN CONVENTION ON HUMAN RIGHTS 4ED 2006 173-4

CRIMINAL JUSTICE ACT 2006 S24

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

PRACTICE AND PROCEDURE

Costs

Acquittal of applicant directed by trial judge - Application for applicant's costs refused by trial judge - Costs matter remitted to trial judge after judicial review - Costs application refused for a second time -Principles to be applied - Discretion of trial judge- Judicial review - Certiorari - Specificity of grounds - Curial deference - Whether applicant entitled to award of costs - Whether decision of trial judge lawful and reasonable - Whether findings of fact made in judicial review - Whether court entitled to make findings of fact in judicial review -Whether grounds specifically set out - Presumption of innocence -Claim that negative costs ruling violated right to presumption of innocence - Whether refusal of applicant's costs violated right to be presumed innocence - Right of appeal - Statutory right of appeal - No guarantee of right of appeal - Whether right of appeal guaranteed - Whether absence of statutory right of appeal from decision of trial judge in breach of human rights - Human rights - Award of damages - Organ of state - Whether human rights violated - Whether entitled to damages - Whether court organ of the state -USK v An Bord Pleanála (No 2) [2009] IEHC 346 (Unrep, MacMenamin J, 8/7/2009), USK v An Bord Pleanála [2007] IEHC 86 (Unrep, Kelly J, 14/3/2007), DPP v Kelly [2007] IEHC 450 (Unrep, Charleton J, 19/12/2007), Todd v Murphy [1999] 2 IR 1, People (Attorney General) v Bell [1969] 1 IR 24, State (Hunt) v O'Donovan [1975] IR 39, Pringle v DPP (No 2) [1997] 2 IR 225 applied- Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 followed - Curtin v Clerk of Dáil Éireann [2006] IESC 27 (Unrep, Supreme Court, 6/4/2006), Dillane v Attorney General [1980] ILRM 167, Dunne v Minister for the Environment [2007] IESC 60 [2008] 2 IR 775, Foley v Judge Murphy [2007] IEHC 232, Sekanina v Austria (1993) 17 EHRR 221, Rushiti v Austria (2001) 33 EHRR 56, Lutz v Germany (1987) ECHR A123-3 considered - The Courts of Justice Act 1924 (No 10) ss 31 and 63 - Courts of Justice Act 1936 (No 48) s 38 - European Convention on Human Rights Act 2003 (No 20) ss 2, 3, 5 - Rules of Superior Courts 1986 (S.I. No. 15) O 84 r 26 - Rules of the Superior Courts (Costs) 2008 (SI No 12) O 99 r 1 - Relief refused (2008/1424JR - Hedigan J - 18/11/2009) [2009] IEHC 497

F(S) v Judge Murphy

Facts: The applicant appeared before the Circuit Court as a defendant in criminal proceedings related to possession of child pornography and was acquitted by direction of the trial judge. The applicant sought inter alia an order of certiorari quashing the order of the first named respondent refusing to grant the applicant his costs and that the first named respondent had acted in excess of her jurisdiction and in breach of Article 6 ECHR. The ruling of the trial judge as to costs was the subject of a judicial review application to the High Court, where the decision to refuse costs was quashed and remitted back to the court. Written submissions were then made and judgment was then given again against the applicant. The applicant submitted that the first named respondent had failed to have regard to the paramountcy of the normal rule that costs follow the event.

Held by Hedigan J. that the Court was very reluctant on judicial review to interfere with the discretion of the trial court regarding the matter of costs. The trial judge had considered the correspondence and had found unsupportable the claim of the accused that he had put the prosecution on notice of the flaw in the prosecution case. The rule that costs followed the event was less applicable in the context of criminal proceedings, where the public interest in the prosecution of crime had to be weighed in the balance. The trial judge was entitled to take into account the previous admissions of the accused, the nature of the acquittal, evidence which had been ruled inadmissible and her finding that the prosecution had been properly brought. Her decision did not violate he presumption of innocence. The trial judge acted fairly and correctly.

Reporter: E.F.

1 Judgment of Mr. Justice Hedigan delivered on the 18th day of November, 2009.

2 1. The Applicant appeared before the Dublin Circuit Criminal Court as a defendant in criminal proceedings entitled the Director of Public Prosecutions v S. F. - Bill Number 1043/2003. His acquittal was directed by the trial judge.

3 2. The first named Respondent is a judge of Dublin Circuit Court, who heard the aforesaid criminal proceedings in respect of the Applicant.

4 3. The second named Respondent is the authority responsible for the prosecution of criminal offences in Ireland. His statutory authority to carry out this function is derived from the Prosecution of Offences Act 1974.

5 4. The third named respondent is the State.

6 5. The fourth named respondent is a constitutional officer who is the legal adviser to the Government and the chief law officer of the State.

7 6. The Applicant seeks the following relief by way of judicial review:

8 (a) an order of certiorari quashing the order of the first named Respondent herein, refusing to grant the Applicant herein his costs in the aforesaid criminal proceedings, made on the 22 ^nd October, 2008.

9 (b) a declaration that the first named Respondent's decision of 22 ^nd October, 2008 refusing to grant the Applicant his costs in the aforesaid criminal proceedings is unlawful and of no legal effect in that it was an irrational and/or unreasonable exercise of her judicial power and discretion and/or was lacking in fundamental reason and common sense.

10 (c) a declaration that the first named Respondent acted in excess of her jurisdiction and/or without jurisdiction in refusing to grant the Applicant herein his costs in the aforesaid criminal proceedings.

11 (d) a declaration that the first named Respondent's decision to refuse to grant the Applicant herein his costs in the aforesaid criminal proceedings violated the Applicant's rights under the following headings:

12 (i) Article 38 of Bunreacht na hÉireann, including but not confined to the right to be presumed innocent of any criminal charge, the right of an accused person to defend themselves, the right of counsel and the right of an accused person to understand the case being made against them.

13 (ii) Article 40 of Bunreacht na hÉireann, including but not confined to the right to a good name, the right to earn a livelihood and the right to equality before the law.

14 (iii) Article 6 of the European Convention on Human Rights.

15 (e) If necessary, a declaration pursuant to section 5 of the European Convention on Human Rights Act, 2003, that the absence of any appeal from the aforesaid decision of the first named Respondent, insofar as same is effected by section 38 of the Courts of Justice Act 1936 and the provisions of the Courts of Justice Act 1924, is incompatible with the obligations of the State under the European Convention on Human Rights.

16 (f) If necessary, a declaration that the Courts of Justice Act 1924, insofar as it fails to provide for an appeal to the Court of Criminal Appeal from the decision of the first named Respondent, is invalid having regard to the provisions of Bunreacht na hÉireann.

Background

17 7. The relevant background to this case is as follows. The Applicant herein was charged with having knowingly possessed child pornography contained in the temporary internet files on the hard drive of a computer on 27 ^th May, 2002 at his business premises, 1 Merrion Row, Dublin, contrary to section 6(1) of the Child Trafficking and Pornography Act 1998. Due to the nature of the allegation, expert assessments were conducted on...