Jackson v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 18 September 2020
• Neutral Citation: [2020] IEHC 475
• Docket Number: [2019 No. 567 JR]
• Court: High Court
• Date: 18 September 2020

BETWEEN

SHANE JACKSON

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2020] IEHC 475

Meenan

[2019 No. 567 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Meenan delivered on the 18th day of September, 2020

Background

1 These judicial review proceedings arise out of the prosecution of the applicant for an offence contrary to s. 107 of the Road Traffic Act 1961 (as amended) (the Act of 1961). The events that gave rise to this offence are set out in an affidavit sworn by Garda Olivia Fenlon. She states that, on 16 February 2018, she had been following a motor vehicle on the M7 near Portlaoise whilst driving a marked patrol car. The said vehicle overtook the Garda car at speed. It was estimated that the vehicle was travelling in excess of 200 kilometres per hour for approximately 50 kilometres. When the vehicle approached the roadworks which were then on the M7, the vehicle was abandoned. At this point, the driver was observed jumping into the back of the vehicle where there were two other occupants. As a result, Garda Fenlon was unable to establish who was the driver of the vehicle. Garda Fenlon made a requirement of the applicant under s. 107 of the Act of 1961 requiring him to state who was driving at the time. The applicant refused.

2 The applicant appeared before the District Judge sitting in Naas District Court on 17 July 2019. He was represented by Solicitor and Counsel. The applicant pleaded guilty to the charge. The District Judge had given custodial sentences of two months to two others on a previous date who had been charged with the applicant with the same offence but were represented by different Solicitors. The applicant was advised by Counsel, as was the Court, that there was no custodial penalty attaching to the said offence. Having heard the facts and evidence of previous convictions, the District Judge indicated that he would also be imposing a custodial sentence on him.

3 In the course of the hearing on 17 July 2019, Counsel, on behalf of the applicant, informed the District Judge that the offence did not carry a custodial penalty, that the section had been amended by the Road Traffic Act 2010, such that the maximum penalty permitted was a fine of €2,000. The District Judge questioned this and directed that the matter be adjourned to 25 July 2019 and that the relevant legislative provisions be provided on that date.

Hearing in District Court on 25 July 2019

4 Given the basis for these judicial review proceedings, I will set out in full the relevant part of the transcript of the hearing that took place on this date (the transcript, as exhibited in the proceedings, refers to “Solicitor for the defence” whereas it should be “Counsel for the defence”).

5 Counsel for the applicant sought to hand into the Court a copy of the relevant section of the Act of 1961 (as amended): -

“SOLICITOR FOR THE DEFENCE: Judge, I have a copy of the act. There is a substitute section. I can hand it in. I spoke with Sergeant Kelly and he is in agreement with me. I spoke with Garda Fenlon this morning and she is in agreement with me. So –

…

SOLICITOR FOR THE DEFENCE: Well, I'll hand in the section.

JUDGE: …together…

SOLICITOR FOR THE DEFENCE: Well there is an answer. It's in front of you there, Judge, on the –

JUDGE: No, it's not. This is just a copy. I need the real act with the… information that…

SOLICITOR FOR THE DEFENCE: Well, Judge –

JUDGE: So I won't accept a copy. I need the real act, give me the full act.

…

JUDGE: I'm not going to pass sentence today.

SOLICITOR FOR THE DEFENCE: Well, it's listed today for sentence.

JUDGE: Well, I'm not going to pass. I want to know what my powers are.

SOLICITOR FOR THE DEFENCE: Well, Judge –

JUDGE: So I'm not prepared to take your word for it. You say I don't have the power to impose a custodial sentencing. They say they're not sure. So I'm waiting for the DPP to tell me what the correct sentence is.

…

JUDGE: …okay. I can't proceed until the DPP tells me what the sentencing is in this. I'm not prepared to take your word for it. That's it. Amen. Let the DPP come back and say, ‘Judge, it’s only a fine' or, There's three months'. I need to know. I need to know because at the end of the day I'll make an order. If my order is wrong you'd only be shooting me okay. You won't be shooting the Sergeant and you won't be shooting the DPP. So I need protection. So if I have it in writing from the DPP I'll proceed on that basis. Then ultimately if it was wrong they will contest it. They won't be running for cover. Okay.”

The matter of sentencing was further adjourned. It should also be noted that the point was made to the District Judge that the applicant would have to take another day off work for the purposes of being in attendance for sentence.

Judicial Review Proceedings

6 By Order of the High Court of 31 July 2019 (Noonan J.), the applicant was granted leave to apply by way of judicial review for, inter alia, the following reliefs: -

(1) An order of mandamus compelling the respondent to finalise the applicant's case as referred to in the grounding affidavit of the applicant when it is next listed in the District Court; and

(2) An order that a District Judge other than the one who sat in Naas District Court on 17 and 25 July 2019 deal with the applicant's case once it is remitted to the District Court.

Amongst the grounds relied upon by the applicant are that the District Judge acted irrationally and unreasonably in repeatedly refusing to accept the submissions of the applicant's Counsel on the penalties available to him following a plea of guilty to an offence under s. 107 of the Act of 1961 (as amended) and appeared biased against the applicant by conducting himself in an unfair and impartial manner.

Submissions of the Parties

7 The applicant's principal submission concerned the manner in which the District Judge conducted the hearing on 25 July 2019. The relevant legislative provisions were clear. Section 107 of the Act of 1961, as amended, did not provide for a custodial sentence by way of penalty. Despite this, it was submitted, the District Judge refused to accept the submissions of the applicant's Counsel, who was supported by documentation to this effect. It was submitted that this amounted to objective bias on the part of the District Judge.

8 Ms. Kathleen Leader SC, on behalf of the applicant, relied upon the judgment of Morris J. in Dineen v. Judge Delap [1994] 2 I.R. 228 where he stated that the conduct of the judge was such as to “reasonably give rise in the mind of an unprejudiced observer to the suspicion that justice was not being done”. Ms. Leader further submitted that as this was a summary offence in respect of which the applicant had pleaded guilty, he was entitled to have the matter dealt with expeditiously (see State...