Mac Fhlanach v DPP

• Jurisdiction: Ireland
• Judge: Ms Justice O'Regan
• Judgment Date: 10 March 2023
• Neutral Citation: [2023] IEHC 116
• Court: High Court
• Docket Number: [Record No. 2021/495JR]

Between

Liam Mac Fhlanach

Applicant

and

The Director of Public Prosecutions Ireland and The Attorney General

Respondents

[2023] IEHC 116

[Record No. 2021/495JR]

THE HIGH COURT

JUDICAL REVIEW

Judicial review – Extension of time – Conviction – Applicant seeking an extension of time – Whether Circuit Court orders were unreasonable and/or disproportionate

Facts: The applicant, Mr Mac Fhlanach, applied to the High Court seeking an order quashing the conviction made by the Circuit Court on 15 October 2020. A further order of certiorari was sought in respect of the order of the Circuit Court judge made on 4 December 2020 refusing the applicant’s application to state a consultative case stated or to reinstate the matter for the purposes of hearing an application to state a consultative case. In addition, an order of mandamus directing the Circuit Court judge to state a consultative case stated was sought together with an order of prohibition in respect of any further steps to prosecute the applicant on foot of the summonses. Two declarations were sought namely that the Circuit Court judge acted ultra vires and/or without jurisdiction and further that the orders of the judge were null void invalid and had no effect. The relief of an extension of time to bring the application was also included. It was argued that the orders made on 15 October 2020 and 4 December 2020 were unreasonable and/or disproportionate in their effects on the applicant’s constitutional rights inter alia to a fair trial, to fair procedure and to equal treatment.

Held by the Court that it was within the contemplation of the applicant on 16 October 2020 that judicial review proceedings would be warranted in the absence of consent on the part of the prosecuting solicitor which in the events was not forthcoming as per the prosecuting solicitor’s letter of 28 October 2020. The Court noted that the DPP did not accept that the prosecution against the applicant would have resulted in the dismissal of the case against him by reason of the dicta in DPP v Cullen [2021] IEHC 135, and the DPP argued that the Circuit Court decision was correct and lawful. The Court held that the application made before the Circuit Court judge on 4 December 2020 did not extend the time provided for in O. 84, r. 21 of the Rules of the Superior Courts. The Court held that such application was not a pre-requisite to applying for judicial review, citing DPP v Tyndall [2021] IEHC 283. The Court held that if one was to accede to the argument of the applicant that time should not begin to run until 4 December 2020, nevertheless there was a period of five and a half months thereafter prior to bringing the leave application. There was in the Court’s view no merit to the argument to suggest that the extension period of time sought was much shorter than that in MO’S v Residential Institutions Redress Board [2019] 1 ILRM 149 and therefore the Court should be minded on that basis to extend the time absent reasons in an affidavit which objectively justify the delay and are sufficient to justify the Court exercising its discretion in favour of the applicant. The Court held that such argument would set at naught any time requirement in O. 84. The Court found that there was nothing to suggest that the efflux of time was outside the control of the applicant or such efflux was caused by something that the applicant could not reasonably have anticipated. The Court held that there is a public interest in ensuring that criminal proceedings are heard and determined expeditiously, and legal certainty and finality of litigation. The Court held that no evidence was before the Court that the taking of a blood sample by the DPP while the applicant was in hospital had an adverse impact on the applicant’s health status or condition and therefore there was no evidence of an injustice to the applicant in that regard, citing DPP v Hughes [2012] IECCA 69.

The Court held that the applicant was not entitled to an exercise of the Court’s discretion under O. 84, r. 21 extending the time within which leave to maintain judicial review proceedings might be made. The court held that the substantive relief would be refused and any stay on the operation of the Circuit Court Order of 15 October 2020 would be vacated. As the DPP had been entirely successful, it was the Court’s provisional view that she should be entitled to her costs, to be adjudicated in default of agreement.

Application refused.

JUDGMENT of Ms Justice O'Regan delivered on 10 March 2023 .

1 . The applicant secured leave on 27 May 2021 to maintain the within judicial review proceedings as against the defendants in respect of a statement of grounds of 25 May 2021 which incorporated a claim for an extension of time. The application is grounded on an affidavit of the applicant of 21 May 2021 and a further affidavit of his solicitor, Mr. McNelis, of the same date. On 5 October 2021 a notice of discontinuance was served in respect of Ireland and the Attorney General and accordingly the matter proceeds as against the Director of Public Prosecutions only. The entirety of the matter is fully opposed based on the statement of opposition of 29 October 2021 and the grounding affidavit of William Kennedy, State Solicitor for County Galway West.

2 . The reliefs sought in the statement of grounds is that of an order quashing the conviction made by Judge Eoin Garavan in the Circuit Court on 15 October 2020. Relief number two refers to the refusal of the Circuit Court judge to state a consultative case stated. A further order of certiorari is sought in respect of the order of the same judge in the same matter made on 4 December 2020 wherein the Circuit Court judge refused the applicant's application to state a consultative case stated or to reinstate the matter for the purposes of hearing an application to state a consultative case. In addition, an order of mandamus directing the Circuit Court judge to state a consultative case stated has been sought together with an order of prohibition in respect of any further steps to prosecute the applicant on foot of the summonses. Two declarations were sought namely that the Circuit Court judge acted ultra vires and/or without jurisdiction and further that the orders of the Circuit Court judge are null void invalid and have no effect. As previously mentioned, the relief of an extension of time to bring the application is also included.

3 . In the grounds upon which the relief is sought reference is made to the applicant appearing on an appeal from the District Court before the Circuit Court in Galway when the applicant pleaded not guilty. It is recorded that on 15 October 2020 the Circuit Court judge refused an application for a direction and subsequently refused an application for a consultative case stated to the Court of Appeal. It is asserted, that the Circuit Court judge failed, refused and/or neglected to exercise his powers judicially, to follow the provisions of s.16 of the Courts of Justice Act 1947, or to follow the ratio in the case of McKenna v Deery [1998] 1 IR 62 and did not afford the applicant any or any adequate or fair or opportunity to properly present his application for the consultative case stated. It is asserted that the DPP failed to inform the Circuit Court judge on 15 October 2020 of another matter pending before the High Court by way of the consultative case stated from the District Court concerning the statutory interpretation of “a doctor treating the person” as it appears in s.14 of the Road Traffic Act 2010 (as amended). It is recorded that based upon a motion and grounding affidavit the matter again came before Judge Garavan in the Galway Circuit Court on 4 December 2020 when an application was made to state a consultative case in the Court of Appeal but this was refused. In relation to the order of 4 December 2020 similar failings as identified aforesaid in respect of the Circuit Court judge's order of 15 October 2020 are set out. It is argued that the orders made on 15 October 2020 and 4 December 2020 were unreasonable and/or disproportionate in their effects on the applicant's constitutional rights inter alia to a fair trial, to fair procedure and to equal treatment.

4 . Both parties tendered prior written submissions which were supplemented by oral submissions. During the course of oral submissions, the applicant confirmed to the court that the following matters contained within the statement required to ground the application were not being pursued:-

• (1) No relief was being pursued in respect of the hearing before the Circuit Court judge on 4 December 2020 and the significance of that hearing is now limited to part of the factual background relied upon by the applicant to ground his claim for an extension of time;

• (2) at para. e(4)(d) of the statement of grounds it is complained that the Circuit Court judge did not afford the applicant any or any adequate or fair opportunity to properly present his application for the consultative case stated. This complaint is not being maintained;

• (3) at para. e(5) of the statement of grounds it is complained that the respondent failed to inform the Circuit Court judge on 15 October 2020 or 4 December 2020 of the pending matter of the DPP v Cullen which had commenced on 9 April 2020 and ultimately concluded with the judgment of Mr Justice Simons on 18 March 2021 (citation [2021] IEHC 135). This complaint was not pursued.

Factual Background

5 . The applicant was involved in a road traffic accident...