Quigley v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 15 March 2019
• Neutral Citation: [2019] IEHC 171
• Docket Number: 2017 No. 956 J.R.,[2017 No. 956 JR]
• Court: High Court
• Date: 15 March 2019

BETWEEN

AUSTIN QUIGLEY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2019] IEHC 171

2017 No. 956 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Constitutional fairness – Criminal prosecution – Applicant seeking to restrain a criminal prosecution – Whether it would breach constitutional fairness to allow the respondent to proceed with the criminal prosecution

Facts: The applicant, Mr Quigley, sought to invoke the High Court’s jurisdiction to restrain a criminal prosecution on the basis of constitutional fairness. The criminal prosecution was predicated on an earlier order made by the District Court disqualifying the applicant from driving for a period of four years. The disqualification order had since been set aside on appeal by the Circuit Court. The criminal prosecution pending before the District Court was predicated on the fact that, for a period of eleven months prior to the Circuit Court order allowing the appeal, the disqualification order was in force. The appeal to the Circuit Court was struck out for non-attendance. The legal effect of the strike-out was that the stay on the disqualification order had lapsed. The appeal to the Circuit Court was subsequently reinstated, and the appeal was ultimately successful. However, for a period of eleven months, the disqualification order was in force. It was during that period of time that the alleged offences were said to have occurred. There was confusion on both sides as to what the precise status of the Circuit Court appeal had been at the time the alleged offences were said to have occurred. The principal issue in these judicial review proceedings was whether it would breach constitutional fairness to allow the respondent, the Director of Public Prosecutions (the DPP), to rely on this happenstance to proceed with the criminal prosecution. This was especially so where the misapprehension as to the status of the appeal was contributed to, in part at least, by the State Solicitor. The applicant maintained that it would be unfair for the prosecution to proceed, and cited the judgment of the Supreme Court in Eviston v Director of Public Prosecutions [2002] 3 IR 260. The DPP opposed the application for judicial review on three principal grounds. First, it was contended that the application for judicial review was inadmissible by reason of delay. It was said that the applicant failed to comply with the three-month time-limit prescribed under Order 84, rule 21 of the Rules of the Superior Courts. Secondly, it was contended that the order of the Circuit Court striking out the appeal was made within jurisdiction and did not breach constitutional fairness. Thirdly, it was contended that, if and insofar as the applicant wished to advance an argument based on unfairness, this was something which must be canvassed before the District Court in the first instance.

Held by the Court that this was one of those exceptional cases where the High Court should intervene to restrain the prosecution. The Court held that the appropriate forum to ventilate a complaint of substantive unfairness is before the High Court, by way of judicial review; the High Court has an exceptional jurisdiction to supervise the DPP, a jurisdiction not shared with the District Court.

The Court held that it would make an order in terms of paragraphs (d)(1) and (d)(4) of the statement of grounds. If and insofar as it was necessary to do so, the Court held that it would also make an order pursuant to Order 84, rule 21(3) extending the time for bringing an application for judicial review to 11 December 2017.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 15 March 2019

INTRODUCTION

1 These proceedings seek to invoke the High Court's jurisdiction to restrain a criminal prosecution on the basis of constitutional fairness. The criminal prosecution is predicated on an earlier order made by the District Court disqualifying the Applicant from driving for a period of four years (‘ the disqualification order’). Crucially, however, this disqualification order has since been set aside on appeal by the Circuit Court. The criminal prosecution now pending before the District Court is predicated on the fact that—for a period of eleven months prior to the Circuit Court order allowing the appeal—the disqualification order was in force.

2 In the ordinary course of events, the making of an appeal to the Circuit Court has the effect of imposing a stay on a District Court conviction. In the present case, however, the appeal to the Circuit Court was struck out for non-attendance. Notwithstanding the fact that the appeal was subsequently reinstated, the legal effect of the strike-out was that the stay on the disqualification order had lapsed.

3 The appeal to the Circuit Court was subsequently reinstated, and the appeal was ultimately successful. However, for a period of eleven months, the disqualification order was in force. It was during this period of time that the alleged offences are said to have occurred. There was confusion on both sides as to what the precise status of the Circuit Court appeal had been at the time the alleged offences are said to have occurred.

4 The principal issue in these judicial review proceedings is whether it would breach constitutional fairness to allow the Director of Public Prosecutions to rely on this happenstance to proceed with the criminal prosecution. This is especially so where, as explained presently, the misapprehension as to the status of the appeal was contributed to—in part at least—by the State Solicitor.

5 The Applicant maintains that it would be unfair for the prosecution to proceed, and cites the judgment of the Supreme Court in Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260. The Director of Public Prosecutions (‘ the DPP’) opposes the application for judicial review on three principal grounds. First, it is contended that the application for judicial review is inadmissible by reason of delay. It is said that the Applicant failed to comply with the three-month time-limit prescribed under Order 84, rule 21 of the Rules of the Superior Courts. Secondly, it is contended that the order of the Circuit Court striking out the appeal was made within jurisdiction and did not breach constitutional fairness. Thirdly, it is contended that—if and insofar as the Applicant wishes to advance an argument based on unfairness—this is something which must be canvassed before the District Court in the first instance.

6 For the reasons set out herein, I have concluded that this is one of those exceptional cases where the High Court should intervene to restrain the prosecution.

FACTUAL BACKGROUND

7 The Applicant is charged with two road traffic offences, namely driving without insurance and driving without a licence. The alleged offences are said to have occurred on 9 May 2017. Both of the alleged offences are predicated on earlier criminal proceedings which had resulted in the Applicant's conviction before the District Court for driving while under the influence of an intoxicant. More specifically, on 10 February 2016, the District Court had imposed a two-month suspended custodial sentence, and made an order disqualifying the Applicant from driving for four years (‘ the disqualification order’). The District Court conviction has since been set aside, on appeal, by the Circuit Court on 21 March 2018.

8 The criminal prosecution now pending before the District Court is predicated on the fact that—for a period of eleven months prior to the Circuit Court order allowing the appeal—the disqualification order was in force. More specifically, it is alleged that as a result of the existence of the disqualification order (i) the Applicant was guilty of driving without holding a driving licence, and (ii) the Applicant was guilty of driving without insurance in that his employer's policy of insurance for the vehicle (a school bus) was invalidated by his disqualification.

9 I pause here to note that the District Court Rules envisage that the bringing of an appeal to the Circuit Court in criminal cases will generally operate as a stay on the execution of the order appealed against. This is contingent on the convicted person entering recognisances within fourteen days. Order 101, rule 6 of the District Court Rules (as amended) provides as follows.

‘6. On the entering into of a recognisance in accordance with rule 4 of this Order, execution of the order appealed against shall be stayed and the appellant, if in custody, shall be released. In any case where a monetary penalty has been imposed on the appellant, or the appellant has been required to perform a condition, the Court may, not later than six months from the expiration of the time allowed by the order for payment of the penalty, or for performance of the condition, issue the warrant of committal in default of such payment, or in default of such performance, as the case may be, unless the appellant shall have entered into a recognisance.’

10 The Applicant duly lodged an appeal and entered a recognisance, all within fourteen days as required under the District Court Rules. The legal effect of this was that the disqualification order was stayed. But for the events described below, it would have been lawful for the Applicant to continue to drive pending the determination of the appeal to the Circuit Court.

11 The hearing of the Circuit Court appeal was initially fixed for 15 December 2016. The Applicant was notified in writing of this date personally by Trim Circuit Court Office. However, in circumstances where the Applicant's child was sick and in hospital, the Applicant instructed his solicitor to seek an adjournment. The Applicant's solicitor, in turn, contacted the State Solicitor for County Meath, who consented to an adjournment, and, in fact, moved the adjournment application. The hearing of the appeal was rescheduled for...