O'Neill v Director of Public Prosecutions and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 13 January 2025
• Neutral Citation: [2025] IEHC 8
• Docket Number: 2023 1398 JR

Between

Bartholomew Anthony O'Neill

Applicant

and

Director of Public Prosecutions (At the Suit of Garda Liam Galvin) Ireland and The Attorney General

Respondents

[2025] IEHC 8

2023 1398 JR

THE HIGH COURT

JUDICIAL REVIEW

Applicationfor judicial review - using a mobile phone while driving - unfair hearing

Facts: The Applicant sought a judicial review to set aside a conviction entered by the District Court. The Applicant was convicted of holding a mobile phone while driving. One issue for determination was whether the conduct of the criminal trial before the District Court resulted in the Applicant recieving an unfair hearing that cannot be corrected by an appeal to the Circuit Court. The Applicant submitted that it is lawful to hold a mobile phone while driving if it is being used with a hands-free device. The Applicant argued that the mobile represents one half of a hands-free system.

This Judicial review raised two issues of the transcript of the ruling of 22 November 2023; (i) the trial judge incorrectly states that the Accused had declined several invitations from the trial judge to arrange legal representation; (ii) the trial judge stated he declined to refer the case to the High Court on the ground there was "no point of law which merited a case stated". The applicant submitted the following grounds in his application; (i) the criminal trial was not conducted fairly; (ii) the judge failed to provide reasons for his refusal to refer a consultative case stated to the High Court; (iii) the judge failed to give the applicant notice that he was going to use his discretion to not strike out the proceedings. Alternatively, the applicant argued that the provision made for the imposition of penalty points is contrary to the Constitution.

The Court held that the complaint was well founded for the following reasons; (i) the trial judge embarked on cross-examubation of the accused, (ii) the trial judge failed to provide reasons for the denial of the request for a consultative case stated. As the Judge had indicated at an earlier hearing - in the event the outcome would be the conviction would be quashed - partied will be heard on the question of remittal.

Case listed for mention only on 29th January 2025

Appearances

The applicant represented himself

Jane Horgan-Jones for the respondents instructed by the Chief State Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 13 January 2025

INTRODUCTION

1 These judicial review proceedings seek to set aside a conviction entered by the District Court. The Applicant has been convicted of the offence of holding a mobile phone while driving. One of the principal issues for determination in this judgment is whether the conduct of the criminal trial before the District Court was such that the Applicant received an unfair hearing which cannot be corrected by way of an appeal to the Circuit Court.

JUDICIAL REVIEW OR APPEAL

2 An application for judicial review will not normally be appropriate where an applicant has an adequate alternative remedy by way of an appeal. This is especially so in the context of a criminal conviction entered in the District Court or the Circuit Court. This is because an appeal to the Circuit Court or the Court of Appeal, respectively, will generally represent an adequate alternative remedy. Indeed, an appeal is almost always the preferable remedy from an accused's perspective because of the inherent limitations on the judicial review jurisdiction.

3 Judicial review is concerned principally with the legality of the decision-making process, and not with the underlying merits of the decision under challenge (save in cases of irrationality). Put otherwise, the function which the High Court exercises in determining judicial review proceedings is far more limited than that which the Circuit Court and the Court of Appeal, respectively, would exercise in determining an appeal against conviction and sentence.

4 The inherent limitations on the High Court's judicial review jurisdiction have been described, in more eloquent terms, by the Supreme Court ( per Charleton J.) in E.R. v. Director of Public Prosecutions [2019] IESC 86 as follows (at paragraph 17):

“[…] an accused in a criminal trial who is advised to forego an appeal and instead pursue a judicial review, faces a burden different to an argument as to right and wrong. Judicial review is not about the correctness of decision-making, nor is it the substitution by one court of a legal analysis or factual decision for that of the court under scrutiny. On judicial review, where successful, the High Court returns the administrative or judicial decision to the original source and, implicitly in the judgment overturning the impugned decision, requires that it be redone in accordance with jurisdiction or that fundamentally fair procedures be followed. If the decision-maker has no jurisdiction, that may be the end of the matter but the High Court never acts as if a Circuit Court case were being reconsidered through a rehearing, which is a circumstance where a court will be entitled to substitute its own decision. Judicial review is about process, jurisdiction and adherence to a basic level of sound procedures. It is not a reanalysis.”

5 The Supreme Court judgment goes on, in the next paragraph, to emphasise that an applicant for judicial review in criminal proceedings has the “ substantial burden” of showing the deprivation of a right. It is not enough to ground a successful application for judicial review that the trial judge might have made an error of fact, nor even an incorrect decision of law.

6 The circumstances in which judicial review may be appropriate, notwithstanding the availability of a right of appeal, have been summarised as follows by Clarke J. (as he then was) in Sweeney v. District Judge Fahy [2014] IESC 50 (at paragraphs 3.14 and 3.15):

“Thus, it is clear that a court may refuse to consider a judicial review application where it is apparent that the complaint made is one which is more appropriately dealt with by means of a form of appeal which the law allows. There can, of course, be cases where the nature of the allegation made is such that, if it be true, the person concerned will have, in substance, been deprived of any real first instance hearing at all or at least one which broadly complies with the constitutional requirements of fairness. To say that someone, who has been deprived of a proper first instance hearing at all, has, as their remedy, an appeal is to miss the point. In such circumstances what the law allows is a first hearing and an appeal. If there has, in truth, been no proper first hearing at all, then the person will be deprived of what the law confers on them by being confined, as a remedy, to an appeal. In such a case, judicial review lies to ensure that the person at least gets a first instance hearing which is constitutionally proper and against which they can, if they wish, appeal on the merits in due course.

Where, however, a person has had a constitutionally fair first instance hearing and where their complaint is that the decision maker was wrong, then there are strong grounds for suggesting that an appeal, if it be available, is the appropriate remedy.”

7 These, then, are the principles to be followed in deciding whether to grant judicial review in this case.

NATURE OF THE OFFENCE ALLEGED

8 It may assist the reader in a better understanding of the course of the criminal trial before the District Court to pause here and to outline the nature of the offence alleged. This is relevant to any assessment of the fairness of the approach adopted by the District Court.

9 The Applicant had been charged, by way of summons, with an offence contrary to section 3 of the Road Traffic Act 2006. The statutory offence is described as follows: a person shall not hold a mobile phone while driving a mechanically propelled vehicle in a public place.

10 The term “ mobile phone” is defined as follows:

“‘mobile phone’ means a portable communication device, other than a two-way radio, with which a person is capable of making or receiving a call or performing an interactive communication function, but for the purposes of subsection (1) does not include a hands-free device;”

11 The term “ hands-free device” is defined as follows:

“‘hands-free device’ means a device designed so that when used in conjunction with a mobile phone there is no need for the user to hold the phone by hand;”

12 The Applicant had admitted in evidence before the District Court that he had been holding a mobile phone at the relevant time. The Applicant also admitted that he had received a telephone call using a pair of headphones which were connected to the mobile phone by way of Bluetooth wireless technology. The Applicant contends that it is lawful to hold a mobile phone while driving provided that it is being used in conjunction with a hands-free device. The essence of the argument seems to be that provided that it is not actually necessary to do so, a driver is permitted to hold a mobile phone while driving. On the Applicant's argument, the mobile phone represents one half of a hands-free system. The difficulty with the argument is that it tends to ignore the fact that a “ mobile phone” and a “ hands-free device” are each defined as a separate “ device”; there is no omnibus definition of a hands-free system.

13 At all events, the Applicant requested the District Court to refer a consultative case stated to the High Court to address this issue of statutory interpretation (and a second issue in respect of the mens rea requirement). The District Court was obliged to consider this request and to determine whether or not it was “ frivolous” within the meaning of section 52 of the Courts (Supplemental Provisions) Act 1961.

PROCEEDINGS BEFORE THE DISTRICT COURT

14 As the narrative which follows pertains to events before...