Reilly v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] IEHC 689 |
| Court | High Court |
| Docket Number | 2019 No. 930 J.R. |
[2022] IEHC 689
2019 No. 930 J.R.
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Criminal prosecution – Unfair hearing – Applicant seeking judicial review – Whether certain interventions on the part of the trial judge resulted in the applicant receiving an unfair hearing which could not be corrected by way of an appeal to the Circuit Court
Facts: A criminal prosecution arose out of events said to have occurred on 28 September 2018. It was alleged that, on that date, the applicant, Mr Reilly, had driven a mechanically propelled vehicle under the influence of alcohol. The criminal prosecution ultimately came on for hearing before the District Court on 10 October 2019. The trial judge entered a conviction and imposed a monetary fine of €250 and made a consequential disqualification order declaring the applicant to be disqualified from holding a driving licence for a period of two years. The applicant applied to the High Court seeking judicial review. One of the principal issues for determination was whether certain interventions on the part of the trial judge resulted in the applicant receiving an unfair hearing which could not be corrected by way of an appeal to the Circuit Court. The applicant complained that the interventions of the trial judge were such as to render the hearing before the District Court fundamentally unfair.
Held by the Court that the hearing before the District Court was unsatisfactory. The Court held that the conduct of the trial judge in interrupting the second cross-examination of the garda was such as to give rise to a reasonable apprehension of bias. The Court held that whereas the trial judge was entitled to have the garda recalled, and, if appropriate, to ask questions of the garda himself, the sequence of events was unsatisfactory. The Court held that a reasonable observer might well be left with the impression that the trial judge had undermined the effectiveness of any cross-examination on the part of the solicitor acting for the applicant. The Court held that the trial judge’s interventions were open to the reasonable interpretation that he coached the witness in respect of his answers on what was the crucial issue in the case. The Court held that the trial judge should not have intervened a second time to interrupt the cross-examination, saying that the garda was inexperienced. The Court held that the applicant’s solicitor should have been allowed to carry out his cross-examination unhindered and the presenting officer could then have re-examined the garda; thereafter, if the District Court judge required any matters to be clarified, he could have asked questions himself. The Court held that the trial judge made an intervention at a key point in the cross-examination. The Court held that the matter in dispute was very straightforward, namely whether the information as to the timing of the accident, which in turn disclosed the timing of the driving, had been given voluntarily by the applicant or by way of a response to a question asked by the garda. The Court held that it was inappropriate for the trial judge to suggest that such a straightforward issue could only be understood by an experienced garda or that the prosecuting garda was confused. The Court held that this is one of those truly exceptional cases where judicial review was the appropriate remedy.
The Court held that the hearing before the District Court was fundamentally unfair. The Court held that the conviction would be set aside. Having regard to Part 11 of the Legal Services Regulation Act 2015, the Court’s provisional view was that the applicant, having been entirely successful in the proceedings, was entitled to his costs.
Application granted.
Mark Harty, SC and Breffni Gordon for the applicant instructed by Walter P. Toolan & Sons
Kieran Kelly for the respondent instructed by the Chief Prosecution Solicitor
JUDGMENT of Mr. Justice Garrett Simons delivered on 21 December 2022
These judicial review proceedings relate to a prosecution before the District Court in respect of a road traffic offence. One of the principal issues for determination in this judgment is whether certain interventions on the part of the trial judge resulted in the accused receiving an unfair hearing which cannot be corrected by way of an appeal to the Circuit Court.
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.
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.
The inherent limitations on the High Court's judicial review jurisdiction have been described, in more eloquent terms, by the Supreme Court 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.”
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.
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.”
These, then, are the principles to be followed in deciding whether to grant judicial review in this case.
The criminal prosecution arose out of events said to have occurred on 28 September 2018. It is alleged that, on that date, the applicant (hereinafter “ the accused”) had driven a mechanically propelled vehicle under the influence of alcohol. An alleged offence of this type is often referred to colloquially as “drunken driving”.
The criminal...
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