T.L. v A Judge of the District Court

• Jurisdiction: Ireland
• Judge: Ms. Justice Miriam O'Regan
• Judgment Date: 01 December 2021
• Neutral Citation: [2021] IEHC 765
• Docket Number: [Record No. 2021/57 JR]
• Year: 2021
• Court: High Court

Between

T.L.

Applicant

and

A Judge of the District Court

and

The Director of Public Prosecutions

Respondents

[2021] IEHC 765

[Record No. 2021/57 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 1st day of December, 2021

Issues

1 The applicant, a litigant in person, obtained leave on 22 March 2021 to maintain the within judicial review proceedings wherein he is seeking an order quashing the decision of the District Court of 22 January 2021, directing that the prosecution of the applicant on charge sheet number 20104849, under s.2 of the Criminal Law Rape Amendment Act 1990 as amended, should proceed.

2 No such order has been furnished to this Court.

3 The applicant also seeks an order of prohibition in respect of the further prosecution of the matter.

4 In the grounds relied upon to secure the relief sought the applicant pleads generally that his constitutional rights have been denied, in particular his right to due process and fair procedures. He also suggests that his right to liberty was denied although there is no evidence that the applicant was incarcerated at any time.

5 Events are outlined as follows:

• (1) On 15 June 2019 the respondent applied for a summons.

• (2) On 24 June 2019 the summons issued, however, in the circumstances issued to a Garda Station other than that which was dealing with the matter.

• (3) On 18 July 2019 the summons was received by the applicant.

• (4) On 2 July 2019 the applicant was arrested and charged on foot of a charge sheet.

• (5) The return date for both the summons and the charge sheet was 8 October 2019.

6 By virtue of the foregoing the applicant complains from 8 October 2019 to 14 January 2020 the charge sheet and the summons were live, and this is said to be unlawful and unconstitutional.

7 In addition to the foregoing it is argued that:

• (a) notwithstanding that an indictable offence was included in the summons, same was statute barred;

• (b) the summons was withdrawn on 14 January 2020 without the applicant's knowledge (in submissions the applicant states that it was 2 March 2020 before he understood that the summons had been withdrawn);

• (c) the applicant relies on the decision of S.M. v. Ireland [2007] IEHC 280, to the effect that the offence is a common law offence and he should have been charged under common law rather than s.2 of the Criminal Law Amendment Act 1990 which comprises a further defect in the summons; and,

• (d) the asserted right or prejudice to the applicant was to the effect that if in advance of withdrawal of the summons on 14 January 2020 (when the respondent was permitted to withdraw the summons) he had been given notice and was in a position to argue the matter, he would have identified the foregoing defects which the applicant asserts are such that the case against him would have been dismissed as opposed to struck out whereupon it would have been impossible for the respondent to proceed on foot of the charge sheet.

Time limits

8 The respondent argues that the within matter is in breach of the provisions of O.84, r.21 of the Rules of the Superior Courts as the applicant delayed between 14 January 2020 and 20 November 2020 before making an application through counsel to reinstate the charge against him. In this regard although the application was made on 20 November 2020 the ruling of the District Court was on 22 January 2021.

9 The applicant states that he became aware of the withdrawal of the summons on 2 March 2020. Thereafter he waited until 20 November 2020 (without explanation for the delay) to seek to have the summons reinstated. The applicant is effectively relying on this delay to extend the period to seek judicial review which appears to me to be wholly unsatisfactory and in breach of the tenor of the Rules of the Superior Courts requiring expedition in relation to public law remedies brought by way of judicial review.

10 I am satisfied that this would comprise a factor to be taken into account in the exercise of my discretion if some one or more of the applicant's arguments are made out.

The summons was out of date

11 This argument is not sustainable based on the judgment of Ms. Justice Macken in DPP (O'Brien) v. Timmons [2004] IEHC 423 where it was held that an indictable offence retained its character as such even when dealt with summarily and was therefore not subject to the time limitations imposed on the prosecution of summary offences by s.10(4) of the Petty Sessions (Ireland) Act 1851.

The...