McGuinness v A Judge of the Circuit Court and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Hyland
• Judgment Date: 24 May 2023
• Neutral Citation: [2023] IEHC 370
• Court: High Court
• Docket Number: Record No. 2021/795JR

Between

Francis McGuinness

Applicant

and

A Judge of the Circuit Court

and

The Director of Public Prosecutions

and

The Commissioner of an Garda Síochána

and

The Courts Service

Respondents

[2023] IEHC 370

Record No. 2021/795JR

THE HIGH COURT

Conviction – Judicial review – Leave – Applicant seeking leave to seek judicial review – Whether an arguable case and a live controversy was identified

Facts: The applicant, Mr McGuinness, applied to the High Court for leave to seek judicial review in relation to an appeal against conviction in the District Court. Notably, there was no order sought to be quashed. Rather, what was sought to be quashed was an interim ruling in the course of the appeal hearing, in circumstances where no final order dealing with conviction and sentencing was ever made due to the retirement of the Circuit Court Judge. Unusually, the relief was sought despite the fact that it was accepted by the respondents, a Judge of the Circuit Court, the Director of Public Prosecutions, the Commissioner of An Garda Síochána and the Courts Service, that in those circumstances, the appeal should be dealt with afresh by a new judge so that none of the actions complained of by the applicant had any legal effect. Certiorari was sought in respect of an interim ruling that had no legal effect. Separately, the applicant sought an order of prohibition against An Garda Síochána from further arresting and charging the applicant with having neither a driving licence nor a certificate of insurance. The terms in which that relief was formulated suggested that the grant of same would immunise the applicant from ever being arrested and charged with the offences identified in any circumstances. At the hearing on 23 May 2023, counsel for the applicant sought to amend that relief substantially, although no application was made to amend that relief prior to the hearing of the leave application. The primary focus of the applicant’s case was and remained the decision of 23 November 2020. The applicant argued that the High Court should determine his arguments in respect of the illegality of that decision and of that process, given his absence from the hearing, and of the failure to give reasons, although he could not identify precisely how this would be of benefit to him given that no final decision was reached on sentence by the trial Judge. However, he said it would assist him in his damages application. All the respondents argued that the matter was moot. They said that because the appeal was never finalised in circumstances where the applicant was not sentenced by the Circuit Court Judge, and because the matter required an entirely fresh appeal process, the ruling of 23 November 2020 had no legal effect and therefore the grant of relief would be entirely futile. They said the applicant already had in substance the relief that he sought i.e., that the ruling in relation to the case stated be set aside and the case was therefore back on track. It was argued that any rehearing of the case enured to the benefit of the applicant because he could make any argument he wished in the context of a fresh hearing, including applying for a case stated. It was argued that events had overtaken his grievance.

Held by the Court that there were undoubtedly significant procedural flaws throughout the sequence of events, and that those may be relevant to the costs of the application. The Court held that, as the applicant pointed out, it was not the fault of the applicant that the trial Judge took the view that she had finalised the matter and that it did not go back to her as it ought to have. The Court held that, equally, it was not the applicant’s responsibility that he was not there on 23 November 2020. However, the Court held that the existence of procedural flaws were not sufficient to give rise to an arguable case in judicial review alone. The Court held that an arguable case and a live controversy must be identified where the disposition of same would benefit the applicant, and that this was not the case here.

The Court refused leave on all grounds.

Application refused.

EX TEMPORE JUDGMENT of Ms. Justice Hyland of 24 May 2023

Introduction

1 This is a most unusual application for leave to seek judicial review in relation to an appeal against conviction in the District Court. Notably, there is no Order sought to be quashed. Rather, what is sought to be quashed might best be described as an interim ruling in the course of the appeal hearing, in circumstances where no final Order dealing with conviction and sentencing was ever made due to the retirement of the Circuit Court Judge.

2 Even more unusually, the relief is sought despite the fact that it is accepted by the respondents that in those circumstances, the appeal should be dealt with afresh by a new judge so that none of the actions complained of by the applicant have any legal effect. In short, certiorari is sought in respect of an interim ruling that has no legal effect.

3 Separately, the applicant seeks an Order of prohibition against An Garda Síochána from further arresting and charging the applicant with having neither a driving licence nor a certificate of insurance. The terms in which that relief is formulated suggest that the grant of same would immunise the applicant from ever being arrested and charged with the offences identified in any circumstances.

4 At the hearing yesterday counsel for the applicant sought to amend this relief substantially, although no application was made to amend that relief prior to the hearing of the leave application. I will deal with that below.

Judicial Review proceedings

5 Before dealing with the sequence of events underlying this application, I should identify the procedural route by which this application comes before the Court. Leave was sought on 31 August 2021 before me at a vacation sitting. Because of the unusual nature of the application, I directed that the leave application be heard on notice to the respondents. The following affidavits were filed by the respondents: affidavit of 24 May 2022 by Garda Darragh Hynes, affidavit of 24 May 2022 by Inspector Brian Clune, affidavit of Denis Kennedy without a jurat or date, affidavit of Shay Keary on behalf of the Courts Service of 29 July 2022. A replying affidavit was filed by the applicant, Mr. McGuinness, of 17 October 2022. There was a grounding affidavit and a verifying affidavit of Mr. McGuinness in respect of the Statement of Grounds in the usual way and there was also a further affidavit sworn by him described as the second affidavit sworn 30 August 2021.

6 Because this is a leave application, albeit one on notice, the standard that the applicant must meet is low and that has been identified in G v DPP [1994] 1 IR 374 and reiterated in O'Doherty v he Minister for Health [2022] IESC 32. The fact that it is on notice to the respondents does not alter the threshold to be met.

Factual background

7 It must be said that the sequence of events preceding the application for leave in August 2021 – and indeed after it – were highly unusual and unsatisfactory from the applicant's point of view. In short, on 29 January 2018, the applicant was convicted at Swords District Court of two road traffic offences committed in 2013, namely driving without holding a driving licence and driving without insurance. He was fined and disqualified from holding a driving licence for a period of 3 years.

8 He appealed against those convictions and the matter came on for hearing on 1 March 2019. He or his legal team were not present. The Court affirmed the District Court Order.

9 The applicant was permitted to reinstate his appeal, and this was done on 15 March 2019. The matter came before the Judge in the Circuit Court on a number of occasions, including 1 July, 9 July, 12 July, 16 July 2019 and 23 November 2020. The Circuit Court Judge retired in 2022.

10 On 9 July, she engaged in a consideration of the penalties applicable to the offence of driving without insurance, and whether disqualification was mandatory. Under the statutory provisions, that depended on whether an applicant was treated as a first-time offender or not. A question arose as to whether convictions that the applicant had for no insurance in 1985 and 1987 were required to be taken into account in considering his status as a first-time offender. The Judge indicated that she was satisfied he was not insured and that she was going to convict him of that but went on to say that she was looking at the penalties. She indicated she would impose the minimum conviction of two years disqualification as she had no discretion in the matter following the High Court decision DPP v Petrovici [2018] IEHC 734. She agreed to stay that Order pending clarification as to whether the decision in Petrovici was being appealed. No Order was drawn up at that stage.

11 On 12 July the matter returned before her and there were further submissions made as to the appropriate penalty and the question of spent convictions. A suggestion was made by counsel for the applicant that there ought to be a case stated to resolve the legal issues outstanding. The matter was further adjourned to 16 July 2019.

12 On 16 July the Circuit Court Judge records that she had made a ruling that the applicant was not insured because there was no valid insurance in place, and further extensive submissions were made on the appropriate sentence. After long argument, the trial Judge adjourned the matter again to allow submissions to be provided in respect of whether a case should be stated.

13 It appears that the matter then came back before her on 23 November 2020 and that the applicant's solicitors were not notified of the hearing. I will deal with the detail of that hearing shortly but the next communication that the applicant received was an email from Garda Hynes in April 2021, who informed him that the matter had...