The Director of Public Prosecutions v Vasal Kravtsov

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards,McCarthy J,Burns J
• Judgment Date: 11 February 2025
• Neutral Citation: [2025] IECA 28
• Docket Number: Record No: 12/2024

Between/

The Director of Public Prosecutions

Appellant

and

Vasal Kravtsov

Respondent

[2025] IECA 28

Edwards J.

McCarthy J.

Burns J.

Record No: 12/2024

THE COURT OF APPEAL

Judicial review – Extension of time – Order 84, Rule 21(1) of the Rules of the Superior Courts – Appellant seeking an extension of time – Whether the appellant had provided good and sufficient reasons why time should be extended

Facts: The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal against a judgment of the High Court ([2023] IEHC 615) delivered on 8 November 2023, and reflected in a High Court order of 15 November 2023, refusing to grant to the appellant certain reliefs sought by her in an application for judicial review (including, inter alia, an order of certiorari quashing an order of the District Court returning the respondent, Mr Kravtsov, for trial to the Dublin Circuit Criminal Court in respect of various offences, and ancillary relief), on the basis that the said application was not brought within the time specified in Order 84, Rule 21(1) of the Rules of the Superior Courts (RSC), and further refusing an application to extend the time for the bringing of such an application pursuant to Order 84, Rule 21(3) RSC. The costs of the unsuccessful application were awarded to the respondent, and the appeal before the Court of Appeal included an appeal against the award of such costs. The appellant submitted that the public interest to prosecute crime was not given sufficient weight in circumstances where a “simple” human error occurred and where the underlying substantive law was not in dispute. The appellant maintained that there was no evidence that the respondent had suffered any anxiety or other harm or detriment by virtue of the error or the subsequent delay. The appellant stated that the effect of the refusal of the extension of time was that human error, even in circumstances where the impugned order appeared good on its face could never comply with the condition’s precedent in Order 84.

Held by the Court that Order 84, Rule 21 RSC and superior courts jurisprudence in which it had been considered, were most recently comprehensively reviewed and analysed in the Court in Arthropharm (Europe) Ltd v The Health Products Regulatory Authority [2022] IECA 109. The Court held that it agreed with the High Court judge that there had not been adequate or sufficient engagement by the appellant with the dual requirements (i) to provide good and sufficient reasons why the Court should extend time, and (ii) to justify, supported by evidence, the failure to initiate judicial review proceedings in time either on the basis that the circumstances that resulted in such failure were outside the control of the appellant or could not reasonably have been anticipated by her. The Court found no error of principle in the High Court judge’s approach.

The Court considered that the appeal should be dismissed.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT delivered by Mr. Justice Edwards on the 11 ^th day of February, 2025.

Introduction

1 The present appeal has been brought by The Director of Public Prosecutions (i.e., “the appellant” or “the DPP” or “the Director”) against a judgment of the High Court (Phelan J. [2023] IEHC 615) delivered on the 8 ^th of November 2023, and reflected in a High Court Order of the 15 ^th of November 2023 (perfected on the 8 ^th of January 2024) refusing to grant to the appellant certain reliefs sought by her in an application for judicial review (including, inter alia, an Order of Certiorari quashing an Order of the District Court returning the respondent for trial to the Dublin Circuit Criminal Court in respect of various offences, and ancillary relief), on the basis that the said application was not brought within the time specified in Order 84, Rule 21(1) of the Rules of the Superior Courts (“RSC”), and further refusing an application to extend the time for the bringing of such an application pursuant to Order 84, Rule 21(3) RSC. The costs of the unsuccessful application were awarded to the respondent, and the appeal now before us includes an appeal against the award of such costs.

Background to the Proceedings

2 The respondent was charged with 105 offences which are alleged to have arisen as a result of a “Ghost brokering” scheme from the 9 ^th of November 2017 to the 14 ^th of February 2018. Offences charged include offences of deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (57 counts) and money laundering contrary to s. 7(1)(a), s. 7(1)(b) and s. 7(3) of the Criminal Justice (Money Laundering and Terrorist Financing) Act, 2010 (48 counts).

3 The respondent, a resident of Co. Kildare, was arrested in Leixlip, Co. Kildare. Under s. 79 of the Courts of Justice Act 1924 (“the Act of 1924”), Leixlip is (for court area purposes) part of the Dublin Metropolitan District, albeit that it is in Co. Kildare. Accordingly, upon arrest he was brought before Blanchardstown District Court which had jurisdiction to hear evidence of arrest, charge and caution and, in circumstances where the matter was not to be dealt with summarily, to return the respondent for trial to whatever Circuit Court would have jurisdiction to try him.

4 Section 53 of the Act of 1924 provides that, in criminal matters, a court has jurisdiction where either:

• a. The offences were committed;

• b. The accused resides, or

• c. The accused was arrested.

5 On the 16 ^th of June 2020 the respondent was sent forward for trial by Blanchardstown District Court to the Dublin Circuit Criminal Court. It is now common case that none of the three criteria specified in s. 53 of the Act of 1924 were satisfied so as to confer jurisdiction on the Dublin Circuit Criminal Court to try the respondent. He should instead have been returned for trial to the next criminal sittings of the Circuit Court for Eastern Circuit and County of Kildare although, seemingly, nobody adverted to this at the time. The difficulty now having been belatedly adverted to; the appellant seeks an order quashing the Return for Trial to the Dublin Circuit Criminal Court together with an order remitting the matter back to Blanchardstown District Court to be further dealt with in accordance with law. It is accepted by the respondent that if the application for Judicial Review had been made in time, it undoubtedly would have resulted in the quashing of the Return for Trial.

6 Order 84, Rule 21(1) RSC requires that an application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose. Further, Order 84, Rule 21(2) RSC provides that where the relief sought is an Order of Certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding. Accordingly, to be within time, the appellant needed to seek leave to apply for judicial review within three months of the date of the return for trial, which was the 16 ^th of June 2020, i.e., she needed to bring her application on or before the 15 ^th of September 2020.

7 Leave to apply for judicial review was not in fact sought until the 14 ^th of November 2022, based on a Statement of Grounds and Grounding Affidavit filed on the 10 ^th of November 2022, and accordingly the appellant was in excess of two years out of time.

8 Order 84, Rule 21 RSC goes on to provide in subrules (3), (4) and (5), respectively, for the possibility of time being extended by the High Court in certain circumstances. These subrules provide:

“ (3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either:

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by the applicant for such extension.

(4) In considering whether good and sufficient reason exists for the purposes of sub-rule (3), the court may have regard to the effect which an extension of the period referred to in that sub-rule might have on a respondent or third party.

(5) An application for an extension referred to in sub-rule (3) shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant's failure to make the application for leave within the period prescribed by sub-rule (1) and shall verify any facts relied on in support of those reasons.”

9 At the time at which the jurisdictional difficulty in this case was first adverted to, the status of the proceedings before the Dublin Circuit Criminal Court was that the respondent's trial was scheduled to take place in the sittings commencing in January 2023. The respondent, who was on bail, had been arraigned and had pleaded “ not guilty”. The matter had a trial date of the 9 ^th of January 2023 and had been called on for six to eight weeks. At a pre-trial listing on the 3 ^rd of November 2022, at which it was proposed to move the start date of the trial by two days to the 11 ^th of January 2023 for administrative reasons, the court was notified by counsel for the prosecution that an unspecified “ issue” had arisen, and that in consequence the DPP was seeking a short adjournment to enable counsel to address the matter further. The court put the pre-trial listing back to the 8 ^th of November 2023, on which date counsel for the DPP informed the court of the jurisdictional issue that had lately been adverted to, and of the DPP's intention to...