McCarthy v The Director of Public Prosecutions

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Denise Brett
• Judgment Date: 04 December 2025
• Neutral Citation: [2025] IEHC 764
• Docket Number: RECORD NUMBER: 2023 / 322 JR

Between

Allan McCarthy

Applicant

and

The Director of Public Prosecutions

Respondent

[2025] IEHC 764

RECORD NUMBER: 2023 / 322 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Remittal – Autrefois acquit – Respondent seeking to remit the matter back to the District Court for full retrial – Whether the applicant was entitled to avail of the special plea of autrefois acquit

Facts: The applicant, Mr McCarthy, applied to the High Court for judicial review seeking orders of certiorari quashing convictions and sentences imposed on him by Swords District Court on 6 March 2023, following prosecution by the respondent, the Director of Public Prosecutions, for offences under the Road Traffic Acts. The respondent conceded that orders of certiorari were appropriate but invited the Court to remit the matter back to the District Court for full retrial. No opposition papers had been filed in respect of the applicant’s claim. Any remittal however was strongly contested by the applicant, who argued he was entitled to avail of the special plea of autrefois acquit and there should be no new hearing. As an order of certiorari was no longer in issue, this judgment concerned itself only with that single issue - whether or not to remit the matter to the District Court for full retrial.

Held by the High Court that the trial judge’s precipitous progression to conviction and in particular, the loss of an opportunity for the applicant to go in to evidence particularly where that possibility had actively arisen in the course of legal submissions (particularly on evidential discrepancies between prosecution witnesses and the possibility of an alternative explanation for the applicant’s demeanour or driving) amounted to an error in the conduct of the trial which meant the applicant’s trial was not conducted in due course of law. The Court held that the errors were therefore ones which warranted an order of certiorari but ones which remained within jurisdiction (per Sweeney v Brophy [1993] 2 IR 202 and McGonagle v District Judge for District No. 1 [2023] IEHC 207). The Court held that the prosecution in this case was comprehensive in that extensive evidence had been called and the prosecution witnesses had been fulsomely cross examined. In the Court’s view, it could not be said that the proceedings were void ab inito. The Court held that the fundamental breaches identified against the background of the uncontested account of the trial indicated that the applicant was in jeopardy or peril of conviction in the course of the trial. The Court held that the applicant was therefore entitled to avail of the special plea of autrefois acquit. The Court held that this acted as a bar to remittal.

The Court declined to remit the matter to the District Court for retrial. If the Court was wrong in that conclusion, in the alternative, the Court declined to remit the matter for rehearing in the exercise of the Court’s discretion, in all the circumstances of the case.

Remittal refused.

Judgment of Ms Justice Denise Brett delivered on the 4 ^th day of December 2025 .

Application:

1 This is an application for judicial review seeking Orders of Certiorari quashing convictions and sentences imposed on the applicant by Swords District Court on the 6th of March 2023, following prosecution by the respondent for offences under the Road Traffic Acts.

2 The respondent conceded that Orders of Certiorari were appropriate but invited the Court to remit the matter back to the District Court for full retrial. No opposition papers have been filed in respect of the applicant's claim. Any remittal however was strongly contested by the applicant, who argued he was entitled to avail of the special plea of autrefois acquit and there should be no new hearing. As an Order of Certiorari is no longer in issue, this judgment concerns itself only with that single issue — whether or not to remit the matter to the District Court for full retrial.

3 For the reasons which follow, I have concluded that the applicant's trial was conducted otherwise than in due course of law and that the applicant was in peril of conviction in his trial such that the special plea of autrefois acquit is available to him. This acts as a bar to remittal. I therefore decline to remit the matter to the District Court for retrial. If I am wrong in this conclusion, in the alternative, I decline to remit the matter for rehearing in the exercise of the Court's discretion, in all the circumstances of the case.

Background:

4 From the uncontested papers filed in the application, it emerges that the applicant is a serving member of An Garda Siochana who was prosecuted in Swords District Court on the 6th of March 2023 on foot of 3 summonses for offenses under the Road Traffic Acts, namely:

• (a) dangerous driving: s.53 of the Road Traffic Act 1961 (“the 1961 Act”);

• (b) driving under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle he was driving: s.4 (1) of the Road Traffic Act, 2010 (“the 2010 Act”); and

• (c) exceeding the permitted concentration of alcohol in the urine: s.4 (3) of the 2010 Act.

5 The offences were said to have been committed on the 14 ^th November 2021, when the applicant was on duty, driving an unmarked official garda car which was involved in a road traffic accident on the off ramp of the M1.

The Trial in the District Court:

6 At trial, the applicant pleaded not guilty to all charges.

7 This Court has had the benefit of seeing the documents furnished by the prosecution to the defendant in advance of the trial, exhibited in the applicant's grounding affidavit. These included the statements of the various intended witnesses and photographs of the scene. Eight witnesses gave evidence for the prosecution at trial and were cross examined by Counsel for the applicant. An overview of their evidence was set out in the Statement of Grounds in these proceedings, to give context to the legal submissions made before the District Court. This included evidence by four civilian witnesses, three of whom gave their view as to the circumstances of the accident, the applicant's driving and his presentation at the time. The fourth was the ambulance attendant whose evidence dealt with the condition of the applicant after the accident, together with confirming he was unable to leave with the applicant for hospital while awaiting the arrival of technical specimen-collecting equipment. Four Garda witnesses gave evidence, including the prosecuting sergeant. All four had attended at the scene of the accident. They were involved in collating evidence grounding potential offences, including taking a preliminary breath specimen to test for alcohol limits and arranging for an oral fluid specimen in order to test for the presence of drugs. One accompanied the applicant in the ambulance to the hospital.

8 At the conclusion of the prosecution case, Counsel on behalf of the applicant made a number of lengthy submissions, seeking a direction of ‘no case to answer’. The submissions contained both legal or technical arguments and assertions of evidential shortcomings or omissions. Briefly synopsizing, they included contentions of:

• • A failure to serve a fixed penalty notice which a person is entitled to receive in advance of any prosecution under s. 4 (3) RTA 2010 (at (c) above in respect of the applicant). This absence was conceded by the respondent and the charge ultimately struck out by the trial judge.

• • Erroneously treating the applicant as a “specified driver” (within the meaning of the 2010 Act) such that lower limits of concentration applied for testing at the scene.

• • Inadequate invocation by the relevant garda witnesses of the statutory basis for requiring preliminary samples under s. 9 of the 2010 Act.

• • Unlawful detention at the scene without the applicant being arrested or told he was no longer at liberty.

• • Conflict of evidence as between the prosecution witnesses themselves, in particular as between the fire brigade officer and the civilian witnesses.

• • Inadmissible hearsay regarding conversations on consent for the taking of the necessary specimen (blood or urine) under s. 14 of the 2010 Act.

• • Whether, in the absence of legal assistance at the scene, there is an obligation on a garda sergeant to outline the nature and consequences of providing different samples for testing (blood or urine).

• • As the s. 4 (3) was conceded by the DPP, the facts and sample underlying that charge ought not be used to ground the s. 4 (1) charge. As the applicant had been acquitted on the s.4 (3) charge, he was entitled to plead autrefois acquit in respect of the same facts and sample also going to ground the s. 4 (1) charge.

• • The absence of proof that a complaint was made within 6 months of the offence to ground the summons, as required by the Petty Sessions (Ireland) Act 1851.

9 While the charge under s.4(3), at (c) above, was conceded, the remaining submissions were all challenged in full by the respondent.

10 It is common case that, at the conclusion of the applicant's application for a direction, the trial judge enquired as to whether the applicant had any previous convictions (the applicant had none), and what disqualification applied, before proceeding directly to dismiss the s. 4 (3) charge, convict the applicant of both of the remaining offences and impose sentences of fines and mandatory disqualifications.

11 A number of matters are not in dispute. It is common case that the District Court judge actively engaged with each of the parties in the course of making their respective submissions but that he did not make definitive determinations on which of the submissions advanced to him by the applicant he did or did not accept (save for pronouncing the summons in order). It is also accepted that he did not provide any reasons or hear any mitigation following conviction, in advance of...