Sean Foley v Her Honour Judge Yvonne Murphy and DPP

JurisdictionIreland
JudgeMr. Justice McCarthy
Judgment Date02 July 2007
Neutral Citation[2007] IEHC 232
CourtHigh Court
Docket Number[2005 No. 845 JR]
Date02 July 2007

[2007] IEHC 232

THE HIGH COURT

[No. 845 J.R./2005]
F (S) v JUDGE MURPHY & DPP
JUDICIAL REVIEW

BETWEEN

S F
APPLICANT

AND

HER HONOUR JUDGE YVONNE MURPHY
FIRST NAMED RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
SECOND NAMED RESPONDENT

CRIMINAL JUSTICE (LEGAL AID) ACT 1962

ENGLISH v EMERY REIMBOLD & STRICK LTD 2002 1 WLR 2409

FLANNERY & ANOR v HALIFAX ESTATE AGENCIES LTD 2000 1 WLR 377

MAYOR & BURGESS OF THE LONDON BOROUGH OF BRENT v ANIEDOBE UNREP 23.11.1999

RUIZ TORIJA v SPAIN 1994 19 EHRR 553

HADJIANASTASSIOU v GREECE UNREP ECHR 16.12.1992 (CASE NO 69/1991/321/393)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.3(b)

R (CUNNINGHAM) v EXETER CROWN COURT TLR 30.1.2003

R v CENTRAL CRIMINAL COURT EX PARTE PROPEND FINANCE PROPERTY LTD & ANOR 1996 2 CAR 26

O'MAHONY v BALLAGH & DPP 2002 2 IR 410 2001/19/5350

LYNDON v DISTRICT JUDGE COLLINS & DPP UNREP CHARLETON 21.1.2007 EX TEMPORE

CHRISTIE v LEACHINSKY 1947 AC 573

PEOPLE v WALSH 1980 IR 294

ROAD TRAFFIC ACT 1961 S49

MIN FOR POSTS & TELEGRAPHS v CAMPBELL 1966 IR 69

MCHUGH v COMMISSIONER OF AN GARDA SIOCHANA 1986 IR 228

CONSTITUTIONAL LAW

Fair procedures

Obligation to give reasons - Costs - Whether reasons adequate or sufficient - Whether decision irrational or unreasonable - O'Mahony v Ballagh [2002] 2 IR 410 followed - Order quashed and matter remitted to Circuit Court (2005/845JR - McCarthy J - 2/7/2007) [2007] IEHC 232

F(S) v Judge Murphy

1. The proceedings
1

1. 1 By order of this court of the 29 th July, 2005, leave was given by Quirke J. to the applicant to seek judicial review of an order of the Circuit Court (Her Honour Judge Murphy) made on 2 nd February, 2005 at the conclusion of the applicant's criminal trial, whereby he was refused an order for costs in his favour consequent upon his acquittal by direction of the learned trial judge. He did not have the benefit of a certificate for legal aid issued under the Criminal Justice (Legal Aid) Act, 1962.

2

2 1.2 The relief sought is, firstly, an order of certiorari quashing that decision and, secondly, two declarations, the first of which seeks to condemn the substantive decision itself to refuse costs as a breach of the applicant's constitutional right to a trial in due course of law or those under the European Convention on Human Rights and Fundamental Freedoms and further to condemn it on the basis that no or no adequate reasons were given by the learned Circuit Judge, in breach of natural and constitutional justice, and otherwise then in accordance with law.

3

3 1.3 Apart from the Notice of Motion a Statement of Grounds for Judicial Review and a Statement of Opposition on behalf of the second and third named respondents were issued and filed and there are four affidavits, namely, that of the applicant sworn on 29 th July, 2005 (being in substance a summary history of the criminal proceedings), a replying affidavit of J F of 10 th November, 2005 (which not only supplements that of the applicant as to the history but also comments on the evidence), a supplemental affidavit of the applicant (which deals with his loss of employment and liability for costs) and, finally, an affidavit of one M M sworn on 16 th May, 2006 (in the course of which he purports to give expert evidence concerning telecommunications and the internet - but being in my view irrelevant since it constitutes a commentary upon the evidence).

4

4 1.4 Apart from setting out the reliefs sought (contained, of course, also in the Notice of Motion) the Statement of Grounds, by definition sets out the grounds upon which the orders are sought as follows:-

1

1. The first named Respondent failed to have any or any adequate regard to the constitutional rights of the Applicant herein in reaching her decision to refuse to award the Applicant his costs at the conclusion of the criminal proceedings against him.

2

2. The first named Respondent has acted otherwise than in accordance with law and in violation of fair procedures by failing to give any or any adequate reasons for reaching the decision to refuse to award the Applicant his costs.

3

3. The first named Respondent has acted otherwise than in accordance with law and/or in excess of jurisdiction in failing to accede to the application on behalf of the Applicant herein for his costs at the conclusion of the criminal proceedings taken against him. In particular the first named Respondent has failed to have any or any adequate regard to the right of the Applicant to defend himself in relation to serious criminal charges in circumstances where the Applicant herein was not covered by the Criminal Justice (Legal Aid) Act of 1962.

4

4. The first named Respondent herein has acted otherwise than in accordance with law and in excess of jurisdiction and has further acted irrationally and/or unreasonably in failing to accede to the application on behalf of the Applicant herein for his costs at the conclusion of the criminal proceedings taken against him in circumstances where the first named Respondent had concluded as a matter of law that the jury should be directed to acquit the Defendant at the close of the prosecution case.

5

5. In circumstances where the Applicant herein was not covered by the Criminal Justice Legal Aid Scheme and where the prosecution case was withdrawn from the jury by the first named Respondent, the first named Respondent has acted irrationally and/or unreasonably and unfairly and/or otherwise than in accordance with law in exercising a discretion not to award the Applicant herein his costs.

6

6. The first named Respondent has failed to protect and vindicate the constitutional rights of the Applicant herein.

7

7. The first named Respondent has failed to have any or any adequate regard to the matters proved in evidence before her and the legal conclusions made in relation thereto in reaching the decision not to award the Applicant his costs.

8

8. All the evidence before the first named learned Respondent was known to the Second Named Respondent and its legal consequences prior to the Trial.

5

5 1.5 On the basis of the pleadings and, oral submissions of Counsel it appears to me that there are two substantive issues raised by these grounds namely, firstly, whether or not the reasons given by the learned Circuit Judge were adequate or sufficiently comprehensive and, secondly, whether or not the decision of the learned Circuit Judge is irrational or unreasonable in the circumstances of the case.

6

6 1.6 The legal consequences of any decision that the reasons were inadequate or insufficient, or of irrationality or unreasonableness would then fall to be considered. I think that I can fairly summarize the issues in this way because there is an overlap in the Grounds.

2. Reasons.
2

2 2.1 The leading English authority as to reasons is English v. Emery Reimbold and Strick Limited, DJ and C Withers (Farms) Limited v. Ambic Equipment Limited and Verrechia v. Commissioner of Police of the Metropolis [2002] 1. W.L.R. 240. These three cases were dealt with together and were appeals on the footing that the right to a fair trial as guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms was breached by the failure of the relevant courts to give adequate reasons for their decisions. The court considered Flannery v. Halifax Estate Agents Limited [2000] 1 W.L.R. 377 and it is a useful statement of the common law as to costs. Verrechia concerned an appeal on the ground that there were inadequate reasons given by the trial judge for the order as to costs which he made, namely, that each party should bear its own costs. Lord Phillips of Worth Matravers M.R., giving the judgment of the court, quoted with approval from the judgment of Henry L. J. in Flannery (at p. 381) as follows:

2

"(1) The duty is a function of due process, and therefore of justice. It rationale has two principal aspects. The first is that fairness surely requires that the parties, especially the losing party, should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know...whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.

(2) The first of these aspects implies that want of reasons may be a good self standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.

(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on what witnesses telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes x rather than y; indeed, there may be nothing else to say. But where the dispute involves something of the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence, but it is not necessarily limited to such cases.

(4) This is not to suggest that there is one rule for cases...

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