M v Director of Public Prosecutions

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 29 September 2025
• Neutral Citation: [2025] IEHC 512
• Docket Number: 2024 332 JR

Between

M.

Applicant

and

Director of Public Prosecutions

Respondent

[2025] IEHC 512

2024 332 JR

THE HIGH COURT

JUDICIAL REVIEW

Criminal prosecution – Theft – Prosecutorial delay – Applicant seeking to restrain a criminal prosecution on the grounds of prosecutorial delay – Whether a fair trial was possible

Facts: The applicant stood charged with multiple counts of theft, forgery and using a false instrument, contrary to the Criminal Justice (Theft and Fraud Offences) Act 2001. The applicant applied to the High Court to restrain the criminal prosecution on the grounds of prosecutorial delay. It was contended that a fair trial was not possible in consequence of the death of one of the intended prosecution witnesses. It was argued that this witness would have been available had the criminal prosecution been brought to trial within a reasonable period. It was also contended that An Garda Síochána failed properly to seek out and preserve evidence including, in particular, certain business records.

Held by the Court that the grounds upon which the applicant contended that the pending criminal trial had been rendered unfair were all ones which the court of trial was best placed to adjudicate upon. The Court held that any assessment of whether the delay had been culpable and/or blameworthy, and of whether the death of a witness entailed the “real possibility” of a loss of an obviously useful line of defence, could only be properly performed by reference to evidence. The Court held that it would be necessary, for example, to consider the pace of the criminal investigation by reference to evidence from the Gardaí involved. The Court held that it would also be necessary to consider the extent to which the managing director of the car dealership had been involved in approving individual transactions (as contended for by the applicant) and as to whether he would have had any plausible reason to approve the (alleged) alteration of the sales contracts. The Court held that none of this could be meaningfully assessed by reference to the limited affidavit evidence before the court of judicial review; it could only be done by the court of trial by reference to the run of the evidence. The Court held that the objections raised by the applicant in relation to the preservation and disclosure of documentary evidence were quintessentially matters to be addressed by the court of trial.

The Court held that the substantive application for judicial review must be dismissed.

Application refused.

Appearances

Ronan Kennedy SC and Kate Egan for the applicant instructed by Hammerstones Solicitors (Naas)

David Staunton for the respondent instructed by the Chief Prosecution Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 29 September 2025

INTRODUCTION

1 This judgment is delivered in respect of an application to restrain a criminal prosecution on the grounds of prosecutorial delay. It is contended that a fair trial is not now possible in consequence of the death of one of the intended prosecution witnesses. The argument here being that this witness would have been available had the criminal prosecution been brought to trial within a reasonable period. It is also contended that An Garda Síochána failed properly to seek out and preserve evidence including, in particular, certain business records.

2 The criminal prosecution is pending before the Circuit Criminal Court. The applicant for judicial review is one of two co-accused. For ease of exposition, the applicant will be referred to throughout this judgment as “ the accused”.

3 The accused stands charged with multiple counts of theft, forgery and using a false instrument, contrary to the Criminal Justice (Theft and Fraud Offences) Act 2001. The accused had been employed by a car dealership in the role of “ dealer principal”. The alleged offences relate, in the main, to the onward sale of vehicles which had been traded in as part of the purchase of another vehicle from the car dealership. The prosecution case is that, in certain instances, the fact that the customer had traded in a vehicle was not recorded in the sales contract and the vehicle was, instead, sold privately by the accused at a profit to himself.

4 One of the intended prosecution witnesses died a number of years after the criminal proceedings had commenced. The deceased had been the managing director of the company which operated the car dealership. The accused contends that any actions on his part, which are now alleged to comprise criminal offences, were done with the knowledge of the managing director for the purpose of “ getting the deals done” and making a profit on the new vehicles being sold by the car dealership.

5 It is contended that the unavailability of the managing director as a witness creates significant difficulties in putting the accused's version of events across to any jury and gives rise to a real risk that the accused will not receive a fair trial. The accused cannot now cross-examine the managing director through counsel. In particular, it cannot now be put to the managing director in cross-examination that it was his custom to approve every transaction of a car sale (together with any trade-in) undertaken in the car dealership nor that he had endorsed his initials on almost all of the sales contracts.

6 To avoid any risk of prejudicing the fairness of the pending criminal prosecution, which is to be heard by a jury, this judgment has been redacted. The name and address of the accused have been omitted, and the circumstances of the alleged offences have been deliberately described in general terms. Neither the name of nor the location of the car dealership has been identified.

REPORTING RESTRICTIONS

7 This judgment is subject to the following reporting restrictions: nothing is to be published or broadcast, when reporting this judgment, which might identify the accused, his co-accused or the car dealership. For the avoidance of doubt, it should be emphasised that the media may report on any detail which is stated in this judgment. The reporting restrictions preclude only the reporting of extrinsic details, such as names, addresses or locations, which are not stated in this judgment. It should be emphasised that the reporting restrictions do not affect reportage of the criminal proceedings themselves, and the parties can be named in that context. The reporting restrictions only relate to the reporting of this judgment.

8 These reporting restrictions have been imposed pursuant to the court's common law power to ensure the integrity of the criminal trial. (See, generally, Gilchrist v. Sunday Newspapers Ltd [2017] IESC 18, [2017] 2 IR 284). The reporting restrictions seek to strike a balance between the constitutional right to a fair trial and the constitutional imperative that justice should generally be administered in public.

9 To elaborate: this judgment has, of necessity, had to refer to matters—such as, for example, the existence of two different versions of the same sales contract—which may ultimately be ruled inadmissible at the criminal trial. Were these details to be published or broadcast in advance of the trial by reference to the name of the accused, there is a risk that one or more individuals, who are subsequently called upon to serve upon the jury, may have seen this reportage and associate same with the accused. This would have the practical effect that members of the jury may be aware of material which should be excluded from their consideration.

10 Reporting restrictions, in the form of the anonymisation of the parties to the criminal prosecution, are proportionate in that they allow the substance of the judgment to be published whilst safeguarding against the risk that a member of a future jury might be apprised, by way of media report, of material which might not be admissible at trial. The omission of the name of the accused and of the car dealership will make it less likely that a member of the jury will associate the reportage with the trial. Unless otherwise ordered, the reporting restrictions will expire upon the conclusion of the criminal trial.

11 Any bona fide member of the press or broadcast media may apply to this court to lift or vary these reporting restrictions. Any such application should be made on ten days' notice to the parties to these proceedings.

LEGAL TEST

12 There is a degree of consensus between the parties as to the legal test governing the assessment of whether a criminal trial has been rendered unfair because of the lapse of time and the death of a witness who might have been of assistance to the defence. The key issue to be determined is whether the accused person has lost the real possibility of an obviously useful line of defence. See Director of Public Prosecutions v. C.C. [2019] IESC 94.

13 The parties are in disagreement, however, on the question of the forum before which this assessment should be carried out, i.e. the court of trial or the court of judicial review. This logically anterior question is addressed, by reference to the circumstances of the present case, at paragraphs 37 and onwards below.

14 To place that discussion in context, it is instructive to set out the following passage from the judgment of O'Malley J. in Director of Public Prosecutions v. C.C. [2019] IESC 94 (at paragraph 4):

“In summary, the Chief Justice has said that the task of the trial judge, when considering an application of this nature, will involve an assessment of the prosecution case. There must, of course, be sufficient evidence for a properly instructed jury to convict the accused, since otherwise he or she will be entitled to a direction in any event. Assuming that this threshold is met, the trial judge must next consider the evidence said to be missing. What is required here, if the accused is to succeed in the application, is a legitimate basis on which it can be said...