Tracey v District Judge McCarthy

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 25 February 2019
• Neutral Citation: [2019] IESC 14
• Court: Supreme Court
• Docket Number: [Supreme Court Record No. 135/2016]
• Date: 25 February 2019

Between/

Kevin Tracey

Appellant

-and-

District Judge Aeneas McCarthy

Respondent

-and-

The Director of Public Prosecutions

Notice Party

[2019] IESC 14

[Supreme Court Record No. 135/2016]

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judicial review – Contempt of court – Fair procedures – Appellant seeking judicial review – Whether the appellant was entitled to have a separate hearing

Facts: The appellant, Mr Tracey, on 31 May 2006, appeared before the respondent, District Judge McCarthy, of the District Court on the charge of driving without due care and attention. The judge held Mr Tracey in contempt of court by being abusive to the court and accusing the court of being corrupt contrary to s. 6 of the Summary Jurisdiction (Ireland)(Amendment) Act 1871, and sentenced him to seven days’ imprisonment. On 1 June 2006, the High Court (Herbert J) granted leave to the appellant to seek judicial review and granted bail to Mr Tracey pending the determination of the judicial review. On 6 March 2008, the High Court (McGovern J) dismissed the application for judicial review and Mr Tracey served the balance of the sentence imposed. The order of the High Court was perfected later, but backdated. The effect of the backdating was that, by the time Mr Tracey obtained the order, he was technically out of time to lodge an appeal. Mr Tracey represented himself, and, having sought and been refused consent to an extension of time, did nothing in this regard for almost eight years, until other appeals were being advanced. At that point, he brought an application for leave to appeal to the Supreme Court, together with an extension of time for so doing. Although the appeal was largely moot, the court granted an extension of time to appeal on 10 February 2017, in part because of the unsatisfactory way in which the High Court order had been dealt with. The court directed that the sole issue to be considered on appeal was whether “the manner in which a finding of contempt in the face of the Court was made against [Mr. Tracey] breached his rights under the Irish Constitution, under the European Convention on Human Rights or under European Union law”.

Held by O’Donnell J that there would have been no invalidity in the steps taken if what was concerned here was solely the removal of Mr Tracey from court; he had no right to demand to make a statement, no right to persist in attempting to do so, and no right to make allegations against the Gardaí (if they were indeed the object of his comments) on the occasion in question. However, O’Donnell J noted that when the judge ordered that Mr Tracey be brought back, the situation changed, since it was possible, indeed likely, that punishment could be imposed. O’Donnell J held that, in those circumstances, more elaborate procedures were called for, and a separate hearing was necessary. O’Donnell J held that Mr Tracey was entitled to have a separate hearing, the possibility of obtaining legal assistance, and, if appropriate, legal aid; he should also have been informed of his entitlements in this regard.

O’Donnell J held that, given the importance of both fair procedures and the constitutional value of personal liberty, and notwithstanding the fact that the order was spent, he would grant an order of certiorari quashing the order of the respondent made on 31 May 2006 whereby Mr Tracey was committed to prison.

Appeal allowed.

Judgment of O'Donnell J. delivered on the 25th day of February 2019

1 The facts in this unusual case can be shortly stated. The appellant, Mr. Kevin Tracey, is by now well known to the Irish courts. He contends that he has been the subject of a victimisation by the legal system, the origin of which he traces to a civil dispute which he had with a neighbour who is a member of the judiciary. I do not describe the matter in this way either to disparage Mr. Tracey or his complaints, or give to credence to his allegations. His many complaints must be taken and addressed on their merits in each individual case in which they are raised. It is, however, necessary to set out this matter in outline, because it is an essential background to the particular issue which arises in this case.

2 On 31 May 2006, Mr. Tracey appeared before the respondent judge of the District Court on the charge of driving without due care and attention. The case was listed, as with many such cases in the District Court, on the basis that if it was to be contested, it could not proceed on that occasion but would be listed for hearing on another day. In those circumstances, the purpose of the hearing would simply be to ascertain the position of the defendant in the proceedings, whether pleading guilty or not guilty, and in the latter case to fix a date for the hearing. It appears that Mr. Tracey, however, attended court with an associate, Mr. Owen Rice, and had, moreover, taken the unusual step of retaining the services of a stenographer. In the event, it does not appear that the stenographer was present at the time, but again it appears that Mr. Tracey or his associate prepared an account of the brief proceedings, together with some editorial comment. It appears likely that this must have required the use of a recording device, without notice to or permission from the court. However, that matter was not raised in evidence in these proceedings, and since this matter has already generated a number of side issues, it is perhaps desirable not to dwell on this or any other extraneous matter.

3 The “transcript” produced by Mr. Tracey was not seriously challenged, and is accepted to be fundamentally accurate insomuch as it sets out what was said in court. However, some of the matters are clearly matters of comment or description of events, rather than an account of the words used. I do not think that these observations can carry any evidential weight. It will be necessary to identify those matters in due course. Subject to these matters, I am prepared to accept the transcribed account as a broad guide to the relevant events, which are not in dispute.

4 The proceedings commenced with the judge asking Mr. Tracey to identify himself as the person accused. Having ascertained that his intention was to plead not guilty, the judge then sought to proceed to put the case in for a date for hearing. The prosecuting garda sought a date in August. So far, the matter was entirely routine and could have been dealt with in moments. It is well known that District Courts have very lengthy lists of cases to be dealt with, and there is a premium on being able to process routine matters efficiently. However, Mr. Tracey then interjected, ‘I want to make a statement to the court here Judge’.

5 It should be said that no litigant, party, witness, or member of the public has any entitlement to use a courtroom to make statements. Indeed, since what is said in court is normally the subject of absolute privilege, it is important that what is said is directed to the issues before the court, and not to other matters. An important part of any judge's function is to ensure that what is said in court is relevant to the issue before the court. In this case, by the time Mr. Tracey indicated his desire to make a statement, that “issue” was the relatively mundane question of fixing a date for a contested hearing of a minor criminal charge. However, Mr. Tracey said he had asked for a stenographer to be present, which suggested that things were deviating sharply from the simple task of fixing a date. The judge said, ‘I am sorry’ and then, ‘this matter is for mention here today, it's a very simple application to put it in for a date for hearing’. In this regard, the judge was absolutely correct. Mr. Tracey persisted in saying that he wanted to read out a statement and the judge said, again correctly in my view, ‘Ah no, I'm not listening to any statement’.

6 In responding in this way, the judge was not only acting within his jurisdiction, but would probably have had the sympathy and agreement of any neutral observer, and not least those who were waiting patiently to have their own business dealt with in court. However, the matter took a further turn when Mr. Tracey then made a reference to ‘six years of abuse … orchestrated by one of your colleagues’. The judge tried to control matters. However, Mr. Tracey then made reference to the gardaí and said that he had at least ‘twelve summonses, false summonses to court’. He then demanded the name of the person prosecuting. When that prosecutor refused, Mr. Tracey replied, ‘You can't because you're not the DPP’. Again, he stated that he wanted to make a statement, and was handing in a statement.

7 At that point, it appears the judge lost patience, and said, ‘District Court guard remove him from the court please’. In being removed from court, it might be said that Mr. Tracey was receiving somewhat rough justice, but it was justice all the same. He had no right to make a statement, or to seek to commandeer the proceedings to make allegations against persons, some of whom at least were not even present. Insomuch as the case itself was concerned, it was clear that a date would be fixed for hearing at which any relevant matter would be ventilated. Mr. Tracey was not being excluded from participation in that case, or inhibited in any way in the defence of it, by his removal from court on this occasion.

8 However, the proceedings took a further turn when it appears Mr. Tracey was being removed from the court by the prosecuting garda, Garda Deirdre Ryan. Mr. Tracey said, ‘you'll certainly hear about this Judge’. He then repeated that comment. It appears that the garda was trying to pacify Mr. Tracey and said, ‘come on now, forget about it, you've heard the judge’ and later, ‘come on now, next time’. This was wise advice. At that point, however, Mr. Tracey is recorded as saying ‘How crooked! And you think you will get away with this? How crooked you are!’. This...