Nugent v The Property Services Regulatory Authority
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 17 September 2020 |
| Neutral Citation | [2020] IEHC 469 |
| Docket Number | [Record No. 2019/484 JR] |
| Court | High Court |
| Date | 17 September 2020 |
[2020] IEHC 469
Barr J.
[Record No. 2019/484 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Order of prohibition – Prosecution – Applicant seeking an order of prohibition in respect of a pending prosecution in the District Court – Whether it would be appropriate for the High Court to rule on the issues raised in the judicial review proceedings
Facts: The applicant, Mr Nugent, in judicial review proceedings, sought an order of prohibition, together with certain other declaratory reliefs, in respect of a pending prosecution in the District Court for offences contrary to s. 28 of the Property Services Regulation Act 2011. On 15th July, 2019, being two days prior to the date on which the matter was to be relisted for mention before the District Court, the applicant obtained leave to proceed by way of judicial review and an order was made restraining his further prosecution in the District Court pending the outcome of these proceedings. The applicant sought to prevent his trial going ahead on the following grounds: (i) having regard to the nature of the investigation carried out by the respondent, the Property Services Regulatory Authority, it lacked jurisdiction to prosecute him for the alleged offences; (ii) the caution which was administered by the inspectors who were investigating the company, which caution was administered at an inspection carried out by them of the company premises on 9th March, 2018, whereby he was informed that they were carrying out an investigation into the company and that he was not obliged to say anything, meant that the respondent was precluded from using any of his answers to their questioning, because the applicant had never been told that as a result of his answers, he could become the subject matter of a prosecution; (iii) because the inspectors had transcribed the handwritten notes of what had transpired at the site inspection on 9th March, 2018, into typed notes and had then shredded the handwritten notes made by one of the inspectors, the court should exclude all the evidence contained in the typed version of the notes, because the applicant had been deprived of the opportunity to adequately challenge same by virtue of the fact that the original handwritten notes had been deliberately destroyed by the inspectors. In the statement of grounds, the applicant sought an extension of time within which to bring his judicial review application.
Held by the High Court (Barr J) that it would refuse to entertain the application brought by the applicant, as it had been brought outside the time period provided for in Order 84, rule 21 of the Rules of the Superior Courts. Barr J held that even if the application had been brought within time, it would be inappropriate for the court to rule on the issues raised in the judicial review proceedings because they were more properly matters that should be dealt with by the trial judge in the course of the criminal trial.
Barr J held that the court would refuse the reliefs sought by the applicant in his statement of grounds.
Reliefs refused.
In these judicial review proceedings, the applicant seeks an order of prohibition, together with certain other declaratory reliefs, in respect of a pending prosecution in the District Court for offences contrary to s. 28 of the Property Services Regulation Act, 2011.
On 15th July, 2019, being two days prior to the date on which the matter was to be relisted for mention before the District Court, the applicant obtained leave to proceed by way of judicial review and an order was made restraining his further prosecution in the District Court pending the outcome of these proceedings.
In summary, the applicant seeks to prevent his trial going ahead on the following grounds:-
(i) It is argued that having regard to the nature of the investigation carried out by the respondent, it lacks jurisdiction to prosecute him for the alleged offences. In particular, the applicant argues that because the investigation was commenced pursuant to s. 89 of the Property Services Regulation Act, 2011 (hereinafter referred to as “the Act”), as an investigation (non-licensee) into Edward Paul Nugent Limited/Castleblayney Livestock Sales, the respondent was not entitled to rely on the report produced by the inspectors who carried out the investigation into the company to ground her decision to prosecute the applicant for alleged offences contrary to s. 28 of the Act (the jurisdiction point).
(ii) It is submitted by the applicant that the caution which was administered by the inspectors who were investigating the company, which caution was administered at an inspection carried out by them of the company premises on 9th March, 2018, whereby he was informed that they were carrying out an investigation into the company and that he was not obliged to say anything, meant that the respondent was precluded from using any of his answers to their questioning, because the applicant had never been told that as a result of his answers, he could become the subject matter of a prosecution. It was argued that having regard to the terms of the caution that was issued by the inspectors on that occasion, it would be unfair to admit any statements made by him as a result of that caution having been administered to him (the caution point).
(iii) It was submitted that because the inspectors had transcribed the handwritten notes of what had transpired at the site inspection on 9th March, 2018, into typed notes and had then shredded the handwritten notes made by one of the inspectors, the court should exclude all the evidence contained in the typed version of the notes, because the applicant had been deprived of the opportunity to adequately challenge same by virtue of the fact that the original handwritten notes had been deliberately destroyed by the inspectors (the missing evidence point).
(iv) In the statement of grounds, the applicant sought an extension of time within which to bring his judicial review application.
In very brief terms, the respondent's reply is in the following terms: it is argued that the applicant is out of time to bring the judicial review proceedings and has not provided any evidence which would enable the court to find that there was good and sufficient reason why the application seeking leave was not brought until 15th July, 2019 and, accordingly, the court cannot extend the time within which the proceedings can be brought and, therefore it should rule that the proceedings are out of time.
The respondent further argues that the reliefs sought by the applicant are in effect an attempt to get the High Court to rule on issues regarding the admissibility of evidence which may be led by the prosecution at the trial and, as such, these are issues that more properly lie within the jurisdiction of the trial judge and, on this basis, the court should refuse to grant the reliefs sought.
The respondent also made substantive arguments as to why the reliefs should not be granted. Very briefly stated, in relation to the jurisdiction point, it was submitted that while the initial investigation was an investigation pursuant to s. 89 of the Act in respect of the activities of the company, that did not preclude the respondent from making the decision to prosecute the applicant in respect of the alleged offences, on the basis of evidence that came to light in the course of the investigation by the respondent into the activities of the company.
In relation to the caution point, it was submitted that when the inspectors entered the premises on 9th March, 2018, they were in fact carrying out an investigation (non-licensee) into the company pursuant to s. 89 of the Act. The caution very clearly informed the applicant of that fact and further informed him in very clear terms that he was not obliged to say anything unless he wished to do so. In those circumstances, it was submitted that the admissions that were freely made by him in the course of the inspection of the premises, was evidence which could be used by the respondent to ground a prosecution against the applicant. In addition, there was other evidence, apart from the admissions made by the applicant, which the prosecution was entitled to call at the trial to establish that the applicant had committed the alleged offences. In particular, there would be evidence from the two inspectors that they returned to the premises later on the same day, 9th March, 2018 and witnessed the applicant carrying out livestock sales at the premises at a time when neither he nor the company had a licence to do so.
Finally, in relation to the missing evidence point, it was submitted that there was not in fact any evidence “missing”. What had happened was that the handwritten notes, which contained abbreviations and shorthand notes made by one of the inspectors, Ms. Gavin, had been transcribed into a typed format, without any shorthand abbreviations. These had then been signed by both of the inspectors as a true record of what had occurred and of what they had seen at their inspection on the particular day. It was only after the typed written notes had been drawn up, that the handwritten notes were shredded.
It was submitted that the notes drawn up by the inspectors were not evidence. They were merely a record as to what the inspectors would state had occurred in the course of their interview and site inspection on 9th March, 2018. The inspectors would give viva voce evidence as to what had occurred on that day. It was further asserted that it was not sufficient for the applicant to simply assert that he could not get a fair trial due to the absence of the original handwritten notes, without in any way engaging with the substance...
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