[2016] IEHC 107
THE HIGH COURT
JUDICIAL REVIEW
[2015 No. 613 J.R.]
BETWEEN
JAMES CONNOLLY
PLAINTIFF
AND
DIRECTOR OF PUBLIC PROSECUTIONS
DEFENDANT
JUDGMENT of Mr. Richard Humphreys delivered on the 15th day of February, 2016
1. The present application is the fourth set of judicial review proceedings brought by the applicant in relation to summary prosecutions against him. To resolve, or even understand, this application, it is necessary to set out certain elements of the previous ones.
The first judicial review application
2. On 11th December, 2008, at approximately 10 p.m., the applicant was arrested at the carpark of the Garda Boat Club, Islandbridge, and charged with using threatening, abusive or insulting behaviour in a public place contrary to s. 6 of the Criminal Justice (Public Order) Act 1994.
3. On 4th March, 2009, he was charged with two further offences alleged to have occurred at the time of the previous incident, namely obstructing a peace officer contrary to s. 19(3) and (4) of the Criminal Justice (Public Order) Act 1994, and offending modesty contrary to s. 18 of the Criminal Law (Amendment) Act 1935, as amended by s. 18 of the Criminal Law (Rape) (Amendment) Act 1990.
4. The applicant was convicted by Judge McHugh of all three charges on 14th July, 2010 and received a fine of €500 with 15 days’ imprisonment in default. He never paid this fine.
5. An appeal against conviction was brought to the Circuit Court on 15th November, 2011. That court affirmed the conviction and appears to have varied the time in lieu to a period of 3 days’ imprisonment. The applicant brought a first set of judicial review proceedings to the High Court (2012 No. 77 JR), which was dismissed. He appealed to the Supreme Court (Appeal No. 60/2012), it would appear unsuccessfully.
The second judicial review application
6. Separately from the foregoing matters, the applicant appears to have been charged with an intoxication offence, which allegedly occurred on 4th February, 2010. He says that this charge was struck out but that 19 months later he received a summons in relation to it. Judicial review proceedings were brought alleging abuse of process and undue delay. Ultimately these proceedings were resolved in his favour by order of the Supreme Court which I am told was made on 11th November, 2013. No papers whatever in relation to these proceedings were shown to me.
The third judicial review application
7. On 16th May, 2013, he brought a third judicial review application (2013 No. 381 JR) to have the penal warrant (relating to the offences dealt with in the first judicial review proceedings) deemed out of time due to the delay in its execution. From the Courts Service High Court search facility, leave appears to have been granted on 12th June, 2013.
8. In those proceedings, the prosecution is said to have argued that no penal warrant was ever issued. The applicant said that he had been told by Gardaí that one had been issued dated 13th March, 2012.
9. On 26th July, 2013, judgment was delivered by the High Court (Hogan J.) in Douglas v. D.P.P. [2013] IEHC 343, declaring that other aspects of s. 18 of the Criminal Law Amendment Act 1935 were unconstitutional.
10. On 19th February, 2014, the appeal relating to the conviction for offending modesty was re-entered in the Circuit Court (record no. 2010/ 5192), despite having been previously heard and determined. That conviction was then set aside by order of that court.
11. An order striking out the third judicial review application with no order as to costs appears to have been made on 4th March, 2014.
The fourth judicial review application
12. On 9th April, 2014, after the applicant’s conviction was overturned, Hogan J. gave judgment in McInerney v. D.P.P. and Curtis v. D.P.P. [2014] IEHC 181 (9th April, 2014), declaring s. 18 of the 1935 Act to be unconstitutional.
13. The applicant was represented by a solicitor at the hearing at which his conviction was overturned, but the kernel of his complaint is that he does not understand the circumstances of the making of the order in his favour on 19th February, 2014, and wants to know precisely why this conviction was set aside. He says that he attended court on that day expecting to obtain information as to the existence or otherwise of the penal warrant, and was surprised when the conviction was set aside. One might have thought that this was a gift horse which should not be looked in the mouth, but the applicant insists on his entitlement to know why this order was made.
14. The applicant claims that the reasons for the overturning of the conviction will show that there has been a miscarriage of justice for the purposes of the Criminal Procedure Act 1993 and will apply for a certificate to be issued to him in that regard. This is premised on his argument that the miscarriage of justice machinery is available in relation to a summary conviction.
15. He applied to the Circuit Court on 12th May, 2015 for a declaration that a miscarriage of justice had occurred. That court declined jurisdiction.
16. On 22nd August, 2015 the applicant wrote to the Director seeking information as to the basis for the order allowing the appeal, but received an opaque reply dated 2nd September, 2015, stating “I have no information about the issue that you raise and I am therefore not in a position to assist”.
17. He also wrote to the Courts Service on 17th October, 2015 to the same effect and had no reply prior to bringing the present application.
18. He therefore brought the present (fourth) judicial review leave application seeking as a primary relief an order to compel the Director to explain the circumstances in which the order was made. I directed that the application be made on notice, and Ms. Lily Buckley B.L. has appeared for the respondent.
19. On 14th December, 2015, having had the Digital Audio Recording (DAR) taken up and having heard the parties, I ruled ex tempore that I was refusing to grant leave in this case. The applicant subsequently requested a written statement of reasons and the present written judgment is delivered in response to that request.
Why was the applicant’s conviction overturned?
20. Ms. Buckley stated that the issue raised in the second judicial review application was whether there was an abuse of process (in relation to the drunkenness charge, which had been initially struck out and later re-instated). Ms. Buckley stated that the offence in question in that application was similar in nature to the offence at issue in the current proceedings and that this gave rise to confusion. She says the Supreme Court order in in relation to the alleged abuse of process (in connection with the drunkenness charge) was (incorrectly) placed on the District Court file in relation to the charges at issue in the current proceedings. She says this gave rise to a misunderstanding which led to the re-instatement of the applicant’s appeal and to it being allowed. Ms. Buckley argued that, as a result, the applicant benefited from the confusion thus created and as such, there can be no complaint arising from that benefit.
21. Ms. Buckley submitted that it was purely coincidental that some months later, the McInerney and Curtis decision was delivered. The applicant’s appeal was allowed before that decision was even delivered.
22. Mr. Connolly argued that the Director was on notice that s. 18 was under scrutiny in McInerney and Curtis and this should have been acknowledged in his case. Ms. Buckley stated that McInerney and Curtis was not related to anything in the file on Mr. Connolly relating to the original charge. The impact of the first judicial review proceedings on the s. 18 conviction merely arose out the confusion outlined above.
23. As noted above, I directed that the DAR be taken up and I am grateful to the Director for transcribing the recording of the proceedings on 19th February, 2014. This has shed some light on the matter. I allowed this occur as a concession to the applicant in circumstances where Ms. Buckley submits, and I agree, that the application is out of time because the order that the applicant has a difficulty with was made more than three months before the date of the ex parte application. I asked the respondent to facilitate the transcription of the DAR in circumstances where the letter of 2nd September, 2015 from the respondent to the applicant was uninformative, to use a neutral term, and it seemed appropriate to see whether there were any grounds for extending the time for the making of this application.
24. The DAR shows clearly that the appeal was allowed and the conviction overturned on consent of both of the parties, who were both represented on that occasion. While there are aspects of the detail of the affair that remain to some extent capable of further particularisation, the broad thrust of events is now apparent.
25. The reasons for the overturning of the conviction are accordingly clear to me (albeit that the applicant continues to say that they are unclear to him). There was confusion in the system as between the offence which was the subject of the second judicial review and those the subject of the first and third judicial reviews. The applicant benefited from the confusion and in essence his appeal was reinstated and allowed on 19th February, 2014 by mistake. No injustice therefore arises now that the matter has been looked into. There is therefore there is no basis upon which to extend time.
26. I therefore refused the application primarily on the basis that it is made more than three months after the making of the order complained of.
27. In any event, relief No. 1, as applied for (where the applicant seeks reasons for the overturning of his conviction), has been substantially satisfied during the course of this leave application.
28. As regards the request for a certificate of miscarriage of justice, Ms. Buckley submits, and I accept, that the Criminal Procedure Act 1993 does not appear to be designed to have any particular relevance to the trial of offences in a summary matter. The applicant’s ingenious suggestion to the contrary is perhaps not unarguable, but even if he is correct, such a certificate does not seem to be something that can be applied for by way of judicial review in general (as Ms. Buckley correctly submits and indeed as the applicant himself anticipated, in that this relief was sought with the qualification “if this court has the authority”) or the application as it was constituted before me in particular.
29. The application for leave was therefore refused. Sensibly in the circumstances, there was no application for costs by the Director in this case.
