Hamill v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 06 June 2024
• Neutral Citation: [2024] IEHC 330
• Court: High Court
• Docket Number: 2022 498 JR

Between

Tanya Hamill

Applicant

and

Director of Public Prosecutions

Respondent

[2024] IEHC 330

2022 498 JR

THE HIGH COURT

JUDICIAL REVIEW

Appearances

Mel A. Christle, SC and Richard Wixted for the applicant instructed by JP Fitzpatrick & Co Solicitors

Conor McKenna for the respondent instructed by the Chief Prosecution Solicitor

JUDGMENT ofMr. Justice Garrett Simonsdelivered on 6 June 2024

INTRODUCTION

1 This judgment is delivered in respect of an application to prohibit a criminal prosecution. The gravamen of the application is that it is unlawful for the Director of Public Prosecutions to pursue a prosecution on indictment against the applicant in circumstances where an earlier summary prosecution in respect of the same alleged offences had been struck out by the District Court. In particular, it is alleged that the applicant enjoyed a legitimate expectation that if a second criminal prosecution were to be pursued against her, same would occur on a timely basis and would remain before the District Court.

2 The fact that the second criminal prosecution is being pursued by way of indictment has the consequence that the maximum penalties to which the applicant would be liable, in the event of conviction, are greatly increased. The maximum term of imprisonment which may be imposed by the Circuit Court, in respect of the offences alleged, is seven years. This is to be contrasted with a maximum sentence of twelve months in the case of a summary prosecution.

3 For ease of exposition, the applicant will be referred to hereinafter as “ the Accused” to reflect her status in the criminal proceedings (rather than her status as applicant in these judicial review proceedings). This is done in circumstances where most of the procedural history relates to events in the criminal proceedings rather than these judicial review proceedings. It should be emphasised that the Accused enjoys the presumption of innocence.

PROCEDURAL HISTORY

4 The Accused stands charged with a number of offences contrary to the Misuse of Drugs Act 1977. The offences are alleged to have occurred on 13 August 2018. On that date, a search warrant had been executed in respect of the Accused's dwelling. It is alleged that a small quantity of controlled drugs had been seized on that occasion. (The material seized is said to have consisted of alprazolam and diamorphine). The Accused was subsequently interviewed under caution by An Garda Síochána. The Accused's solicitor has indicated that the admissibility of the statement, which the Accused made to members of An Garda Síochána, will be challenged at any criminal trial.

5 The Accused has been charged with two counts of unlawful possession of a controlled drug, and two counts of the possession of a controlled drug for unlawful sale or supply.

6 The offences with which the Accused has been charged are indictable offences which are capable of being tried summarily. Offences of this type are sometimes referred to colloquially as “ hybrid offences” or offences which are “ triable either way”. In brief, an offence of this type may be tried summarily provided that, first, the Director of Public Prosecutions makes an administrative decision to consent to summary disposal, and, secondly, the District Court accepts jurisdiction by determining that the offence is a minor one. See, generally, Gormley v. Smyth[2010] IESC 5, [2010] 1 I.R. 315 (at paragraphs 4 to 9).

7 If the evidence discloses, either prior to the trial or during the trial, that the offence is a non-minor offence, then the District Court is not entitled to try such an offence and is obliged, of its own motion, to decline jurisdiction. This is because the District Court has no actual or inherent jurisdiction to dispose of non-minor offences. See, generally, Reade v. Judge Reilly[2009] IESC 66, [2010] 1 I.R. 295. The factors to be considered in determining whether an offence is a minor or non-minor offence have recently been restated by the Court of Appeal in Doherty v. Director of Public Prosecutions[2023] IECA 315.

8 (For completeness, it should be noted that the taxonomy and disposal of offences at a summary level and on indictment is the subject of an appeal pending before the Supreme Court: Doherty v. Director of Public Prosecutions [2024] IESCDET 46).

9 In the present case, criminal proceedings were initially instituted against the Accused by way of the summons procedure (“ the first criminal proceedings”). It has been explained, in the opposition papers, that the decision to pursue the prosecution on a summary basis had been made at the local level, i.e. without the submission of a file to the Director of Public Prosecutions for a formal direction. This was done pursuant to Section 8 of the Garda Síochána Act 2005. This section provides that any member of the Garda Síochána may institute or conduct prosecutions in a court of summary jurisdiction in the name of the Director of Public Prosecutions. The Director has published a general direction which indicates, relevantly, that she has elected for summary disposal of certain categories of offences under the Misuse of Drugs Act 1977.

10 The first criminal proceedings had been instituted by way of the issuance of four summonses from the relevant District Court Office on 22 July 2019. The summonses were made returnable before Portlaoise District Court on 21 November 2019. On that date, the District Court accepted jurisdiction.

11 Following the furnishing of disclosure material, the first criminal proceedings were listed for hearing before the District Court on 25 September 2020. This hearing date had to be vacated in circumstances where the prosecution sought time to instruct counsel. The first criminal proceedings were adjourned for hearing on 16 March 2021. On that date, the prosecution sought another adjournment, this time on the basis that the seized drugs, which were to be the central exhibit in the case, could not be located. Having heard legal argument from both the prosecution and the defence, the District Court struck the prosecution out. A decision to strike out criminal proceedings is very different from a decision to dismiss the proceedings on the merits or with prejudice. An order striking out criminal proceedings does not preclude the institution of fresh proceedings.

12 The Accused has sought to attach great significance to certain comments which the District Court judge purportedly made in the context of his ruling striking out the first criminal proceedings. More specifically, it is suggested that the judge had held that if the prosecuting authorities intended to re-charge the Accused, then this should be done expeditiously and within a period of no more than four weeks.

13 In the event, no further steps were taken against the Accused for a period of some eight months. Thereafter, a second set of criminal proceedings were instituted by way of the charge sheet procedure. More specifically, the Accused was arrested on 25 November 2021, charged and cautioned, and brought before Portlaoise District Court. The Accused was then remanded on bail pending the service of a book of evidence. On 17 February 2022, the District Court sent the Accused forward for trial to the Circuit Court. It should be explained that the Director of Public Prosecutions contends that the three month time-limit for judicial review proceedings began to run from this date: see further paragraphs 50 to 55 below.

14 The Accused's solicitor wrote to the Office of the Director of Public Prosecutions on 7 April 2022. In brief, the letter set out the procedural history leading up to the striking out of the first criminal proceedings on 16 March 2021. The letter then advanced an argument to the effect that the decision to abandon the summary prosecution and to direct trial on indictment had been made without reference to this procedural history, without there having been any change in circumstances and without any alteration in the substantive evidence. The letter called upon the Director to confirm that a nolle prosequi would be entered in respect of the charges. The letter concluded by stating that, in default of such confirmation, the Accused reserved the right to bring an application for judicial review before the High Court. A copy of this letter was also sent to the State Solicitor for Kildare North West. The State Solicitor replied by letter dated 20 April 2022 stating that the Director was of the view, having considered the matter, that the charges as directed by her should be prosecuted on indictment and that the Director denied that there was any delay in bringing this matter to trial.

15 It has since been explained, in the opposition papers, that a file had first been sent to the Office of the Director of Public Prosecutions on 8 October 2021 and that a direction was issued on 14 October 2021. It will be recalled that the decision to institute the first criminal proceedings had been made at the local level by An Garda Síochána.

16 The within judicial review proceedings were commenced by way of an ex parte application for leave to apply on 4 July 2022. A statement of opposition was subsequently delivered on behalf of the Director. The Accused brought an application for the discovery of documents. This application was refused by the High Court (Bolger J.) in a written judgment on 6 December 2023: Hamill v. Director of Public Prosecutions[2023] IEHC 688.

17 The application for judicial review ultimately came on for hearing before me on 13 February 2024. It emerged at the hearing that a copy of the order made by the District Court on 16 March 2021 had not been exhibited. The precise terms of the District Court order, and, in particular, whether same included a stipulation that any fresh criminal proceedings would have to be instituted within a specified period of time, are relevant to the judicial review...