G. v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 27 March 2023 |
| Neutral Citation | [2023] IEHC 142 |
| Court | High Court |
| Docket Number | 2021 No. 493 JR |
[2023] IEHC 142
2021 No. 493 JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Mr. Justice Garrett Simons delivered on 27 March 2023
This judgment is delivered in respect of an inter partes application for leave to apply for judicial review. The judicial review proceedings arise out of a decision of the District Court to refuse to issue summonses against named members of An Garda Síochána. The application to issue the summonses had been made by the applicant in these judicial review proceedings on the basis of the common informer procedure. One of the principal issues which arises in the judicial review proceedings is whether the common informer procedure is available in circumstances where the common informer is himself the subject of a criminal prosecution and seeks to issue summonses against members of An Garda Síochána who are involved, directly or indirectly, in that criminal prosecution. The District Court had refused to issue the summonses on the grounds, inter alia, that the application to issue the summonses represented an abuse of process in circumstances where criminal proceedings were in being.
The legal test governing an application for leave to apply for judicial review has recently been considered by the Supreme Court in O'Doherty v. Minister for Health [2022] IESC 32, [2022] 1 I.L.R.M. 421. The Chief Justice, O'Donnell C.J., explained at paragraph 39 of his judgment that the threshold to be met is that of arguability:
“The threshold is a familiar one in the law. It is, in essence, the same test which arises when proceedings are sought to be struck out on the grounds that they are bound to fail, or the test that is normally required in order to seek an interlocutory injunction. It must be a case that has a prospect of success (otherwise it would not be an arguable case) but does not require more than that. While, inevitably, individual judges may differ on the application of the test in individual cases at the margins, the test itself is clear. This test – it must be stressed – is solely one of arguability: it is emphatically not a test framed by reference to whether a case enjoys a reasonable prospect of success, still less a likelihood of success. Any such language obscures the nature of the test and may on occasion lead to misunderstanding, appeal and consequent delay.”
The Chief Justice also confirmed that the same threshold test applies irrespective of whether the application for leave is made ex parte, or, as in the present case, is made on notice to the other parties.
It may be of assistance to the reader in understanding the discussion which follows to pause here and to explain briefly the nature of the common informer procedure. Notwithstanding the significant legislative reforms which have been introduced in respect of the prosecution of criminal offences, vestiges of an ancient procedure whereby any member of the public could apply for the issue of a criminal summons have survived. A person who makes such an application is referred to as a “ common informer”. The procedure involves the making of a complaint to a judge of the District Court pursuant to the provisions of Section 10 of the Petty Sessions (Ireland) Act 1851.
The nature of the common informer procedure has been discussed in some detail by the Supreme Court in its judgment in Kelly v. Ryan [2015] IESC 69, [2015] 1 I.R. 360. The limited role of the procedure in the context of indictable offences is summarised as follows (at paragraph 62 of the reported judgment):
“[…] In the light of the legislative developments which I have sought to analyse it is impossible for a private prosecution commenced under the common informer system to progress to trial (or, indeed, to sentence on a plea of guilty) at all without a positive decision on the part of the D.P.P. At its height, all it can be said that may be achieved by the initiation, in the context of an indictable offence, of a private prosecution is that it would bring to the attention of the D.P.P. the possibility that an offence of the type alleged may have been committed. Even if relevant investigative authorities may have chosen either not to investigate or to recommend a prosecution, nonetheless, the fact that a private individual has persuaded a District Judge to issue a summons might be considered of some value in that regard.”
The Supreme Court judgment does not expressly address the issue which arises in the present case, namely whether the common informer procedure is available in circumstances where the common informer is himself the subject of a criminal prosecution.
The common informer procedure is regulated under Order 15 of the District Court Rules. Relevantly, an application to issue a summons pursuant to Section 10 of the Petty Sessions (Ireland) Act 1851 must be made to a judge of the District Court. In contrast to the position in respect of summonses issued pursuant to the Courts (No. 3) Act 1986, such a summons cannot be issued by the District Court Office.
The dispute in the present case has its genesis in an incident which occurred on 25 August 2019. It is sufficient for the purpose of this judgment to summarise the incident as follows. It seems that the applicant had left one of his sons, who was asleep at the time, unattended in a parked car for a brief period while he (the applicant) made a purchase at a shop. On his return to the car, the applicant says his son was well, content and fast asleep. It appears that the applicant was then approached by two members of An Garda Síochána. The applicant was arrested and has since been charged with the following alleged offences: (i) the failure to provide his name and address; (ii) the failure to comply with a direction given by a member of An Garda Síochána; and (iii) the use or engagement in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned. The applicant denies these charges.
In March 2021, the applicant sought to issue a number of criminal summonses against members of An Garda Síochána. (These individuals have been named as notice parties to these judicial review proceedings). By way of illustration: it is alleged that one of the two guards who had been directly involved in the events of 25 August 2019 is guilty of making gain or causing loss by deception; assault causing harm; and false imprisonment. It is also alleged that a Garda Superintendent is guilty of withholding information.
It appears from the exhibits in these judicial review proceedings that the applicant had emailed Blanchardstown District Court Office on the afternoon of 24 February 2021 enclosing a draft summons and requesting that the office review same. The email reads as follows:
“Many thanks. I will attend Court tomorrow.
May I ask that your Office review the attached form that I intend to present to this Honourable Court? Especially, I am most unsure in relation to the District Number which should apply.
Your most immediate attention would be very much appreciated as I believe same should be statute barred afterwards”.
An official replied by email the next day (25 February 2021) stating as follows:
“We are sorry but it wouldn't be our place to advise you as we are not legally trained.
The Jurisdiction is Dublin Metropolitan District and there is no district number – that's for provinces only
We note that you have a solicitor so perhaps you should seek advice from them”
It appears that the applicant travelled to Blanchardstown District Court on the afternoon of 25 February 2021. It further appears that, by the time the applicant arrived, the day's sittings had already concluded. It further appears that the applicant subsequently spoke to an official on the telephone. The applicant alleges that the official told him that the District Court Office “ can only accept prosecution from Gardaí and cannot accept a private prosecution”.
The applicant sent an email to the District Court Office on 5 March 2021 setting out a series of criticisms of the official and concluded by stating as follows:
“D/ I will attend Blanchardstown District Court next week with a new private prosecution against Garda Geoghegan and I hope that this time, no one will prevent me to address same to the sitting judge.
I look forward to hearing from your Office to confirm the above-mentioned point D.”
The District Court Office replied by email dated 8 March 2021 and indicated that the applicant might attend on 10 March 2021 at 10.30 o'clock to make his application to the District Court. The email went on to state that if that date did not suit, the applicant might let the official know what day he could attend. The email concluded by asking the applicant to email a copy of his application in advance.
The applicant duly attended before Blanchardstown District Court on the morning of 10 March 2021 and his application was called first in the list. A transcript of the hearing before the District Court has since been obtained by the office of the Chief State Solicitor and has been exhibited as part of these judicial review proceedings. The transcript was not available at the time that the judicial review proceedings were initially instituted.
(In fairness to the applicant, it should be recorded that it is apparent from the transcript that the applicant himself had, in fact, applied to the District Court to be allowed to take up a transcript of the digital audio recording of the hearing on 10 March 2021 but this had been refused by the judge).
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