APPROVED/NO REDACTIONS NEEDED
THE COURT OF APPEAL
CIVIL
Neutral Citation Number: [2025] IECA 129
Record Number: 2024/275
High Court Record Number: 2021/493JR
Allen J.
Hyland J.
McDonald J.
BETWEEN/
AG
APPLICANT/RESPONDENT
-AND-
A JUDGE OF THE DISTRICT COURT
RESPONDENT
-AND-
(BY ORDER) THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY/APPELLANT
-AND-
PAUL DOLAN, CRAIG GEOGHEGAN, EOIN DALY AND JOHN PAUL COCHIN
NOTICE PARTIES
JUDGMENT of Mr. Justice McDonald delivered on 6th June 2025
1. This is an appeal by the Director of Public Prosecutions ("the DPP") who is a notice party to these proceedings pursuant to an order made by the High Court on 24th July, 2023. By that order, the applicant in these proceedings (the respondent to the appeal) (who I shall refer to as "Mr. G.") was given leave to seek judicial review in respect of a decision of a District Court Judge sitting in Blanchardstown District Court on 10th March 2021 refusing Mr. G.'s application under s. 10 of the Petty Sessions (Ireland) Act, 1851 (as Amended) ("the 1851 Act") to issue a number of summonses against certain officers of An Garda Síochána for the purposes of a private prosecution to be initiated by Mr. G. against those officers.
2. The appeal relates to the judgment and order of the High Court following the substantive hearing of the judicial review application on 18th July, 2024. A written judgment was delivered by the High Court judge on 16th September 2024 ([2024] IEHC 545) in which he came to the conclusion that the decision of the District Court judge in March 2021 did not contain adequate reasons. On that basis, the High Court determined that an order of certiorari should be issued quashing the decision of the District Court judge and remitting the matter to the District Court for a fresh hearing of the application. The High Court order to that effect was subsequently made on 5th November 2024. The appeal by the DPP is from that judgment and order. The DPP argues that the order of 24th July 2023 did not give Mr. G. leave to pursue a challenge against the decision of the District Court judge on the grounds of inadequacy of reasons. The DPP therefore argues that it was not open to the High Court judge to come to the decision which he did in July 2024. The DPP also relies upon a number of other grounds of appeal. These include (a) a contention that the High Court judge erred in law and in fact in substituting his own view for that of the District Court judge, (b) a contention that the High Court judge erred in law and in fact in deciding that there was an adequate basis to issue summonses under s. 10 of the 1851 Act and (c) the case is also made that, in circumstances where it is alleged to be evident that Mr. G. did not have a bona fide desire to invoke the criminal process, the District Court judge acted within jurisdiction in exercising his discretion to refuse Mr. G.'s application under s. 10 of the 1851 Act.
Background
3. In order to understand the issues, it is necessary to describe the background to Mr. G's application to the District Court in some detail. While the facts have yet to be determined by the District Court, it is clear from the affidavit evidence before the High Court that the application made by Mr. G. under the 1851 Act arose in relation to steps taken against him by members of An Garda Síochána following an incident which occurred in the car park of the Liffey Valley Shopping Centre on 25th August 2019. It appears to be the case that, for a time on that day, Mr. G.'s two-year-old child was asleep in the back seat of the family car in the shopping centre car park while Mr. G. was shopping in the company of an older child. A woman who noticed the child in the back of the car became concerned and alerted security personnel at the shopping centre. The Gardaí were then informed and they arrived at the scene. Following an altercation between Mr. G. and the Gardaí, Mr. G. was arrested pursuant to s. 8 of the Criminal Justice (Public Order) Act 1994 and taken to a Garda station. Later that day, Mr. G. was charged with a number of public order offences as follows:
(a) Threatening, abusive or insulting behaviour in a public place, contrary to s. 6 of the Criminal Justice (Public Order) Act, 1994 ("the 1994 Act");
(b) Failure to comply with a direction of a member of An Garda Síochána, contrary to s. 8 of the 1994 Act; and
(c) Refusal to give his name and address, contrary to ss. 24(3) and 24(4) of the 1994 Act.
4. After Mr. G. was charged on 25th August 2019 with these offences, he was bailed to appear at Blanchardstown District Court on 11th September 2019. The matter was then fixed for hearing on 18th March 2020. Because of the COVID-19 pandemic, the hearing did not proceed on that day and, instead, a new hearing date was fixed for 2nd December 2020. Although the prosecution against Mr. G. was ready to proceed with a hearing on that day and had assembled all relevant witnesses, there was no appearance on behalf of Mr. G. In those circumstances a bench warrant was issued. In the course of the proceedings before the High Court, Mr. G. exhibited a letter from his solicitors confirming that the failure to attend was due to an error on their part which they attributed to a breakdown in communications with counsel acting in the matter. A new hearing date was fixed for 11th July, 2021. However, in the intervening period Mr. G. commenced email correspondence with Blanchardstown District Court Office in relation to summonses which he wished to issue against officers of An Garda Síochána under s. 10 of the 1851 Act.
5. In the course of the correspondence with the District Court Office, Mr. G. sent a number of versions of draft summonses to the District Court Office. In his first email to the District Court Office on 24th February 2021, Mr. G. indicated his intention to attend before Blanchardstown District Court on the following day and he asked the District Court Office, in the meantime, to review a draft of the summons that he intended to present to the court. The draft summons was addressed solely to the arresting garda and it was alleged that, on 25th August 2019, the garda in question had, in contravention of the 1994 Act, demanded Mr. G's name and address. It also alleged that the garda had unlawfully arrested and detained Mr. G. and had initiated "3 wrongful prosecutions" against Mr. G. It is clear from the terms of the draft summons that these were the prosecutions described in para. 3 above.
6. The District Court Office sent a response by email early on the following morning informing Mr. G. that they were not in a position to advise him in relation to the proceedings which he proposed to bring and suggesting that he should seek advice from his solicitor. As noted in para. 4 above, there were solicitors on record for Mr. G. in respect of the criminal prosecutions against him. Shortly after noon on that day, Mr. G. sent an email to the Office to say that he would attend Court after lunch. Mr. G. has deposed that he subsequently attended the District Court after lunch on that day with three draft summonses but, as he explains in the affidavit verifying his statement of grounds, the Court had risen by the time he got there.
7. Mr. G. then sent a more detailed email to the District Court Office on Friday, 5th March 2021, in which he complained about an alleged lack of cooperation from the Office and indicated that a civil action would be issued against the addressee of his email pursuant to the European Convention on Human Rights Act 2003 and that a complaint would be made to the Chief Executive Officer of the Courts Service and/or to the Office of the Ombudsman. In the course of his email, he stated that the right to bring a private prosecution under s. 10 of the 1851 Act had been upheld by the Supreme Court in Kelly v. Ryan [2015] IESC 69 (a decision which is addressed in more detail below and which is also reported at [2015] 1 I.R. 360). He also indicated his intention to attend at Blanchardstown District Court in the course of the following week to present a new private prosecution against the arresting garda. The Office replied on Monday 8th March 2021 indicating that Mr. G. could make his application to the Court on Wednesday 10th March 2021 and requesting that he send a copy of his application in advance.
8. In response to the email of 8th March 2021, Mr. G. sent a further email on 9th March 2021 enclosing copies of the three draft summonses he had proposed to present to the Court on the afternoon of 25th February 2021. The first summons was addressed to the arresting garda. In it, Mr. G alleged that the garda was guilty of assault and false imprisonment. In addition to the arresting garda, there was also a draft summons addressed to another garda who had been involved in the incident in which the same allegations were made. There was also a draft summons naming a third garda based in Ronanstown Garda Station but, in his case, the offence alleged was forgery. In the email, Mr. G. indicated that he thought that these summonses were statute barred but that he proposed to work that evening to prepare an additional prosecution which he believed would not be statute barred. An unsworn information was included in respect of each summons. In each case, the information set out Mr. G.'s account of the incident on 25th August 2019 including his arrest. In each case, Mr. G. contended that his arrest was wrongful. In addition, it was alleged that he had been forced to sign a recognizance which gave a former address for him rather than his current address. It was also alleged in each case that, on 26th August 2019, he had telephoned Ronanstown Garda Station to request an explanation for the use of his former address in the recognizance.
9. The reference to 26th August 2019 should be noted. Although s. 10(4) of the 1851 Act prescribes a six-month limitation period in the case of offences of a summary nature, Mr. G. appears to have been proceeding on the basis that there is an 18-month limitation period for the making of an application to the District Court under s. 10 of the 1851 Act. The reference in each unsworn information to his complaint on 26th August 2019 and his attempt to make his application on 25th February 2021 should be seen in that context. It is clear from the transcript of the proceedings before the District Court (described further below) that Mr. G. was operating on the basis that an 18-month limitation period applied. Furthermore, Mr. G. has maintained on affidavit and in submissions delivered in the course of the High Court proceedings that an 18-month limitation period applies by virtue of s. 104 of the Garda Síochána Act 2005 ("the 2005 Act"). However, that provision applies solely to offences reported to the DPP under that Act. Following an amendment made by section 51 of the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act 2015, s. 104 provides that, notwithstanding s. 10(4) of the 1851 Act, summary proceedings in respect of a matter "relating to an offence reported to the Director of Public Prosecutions under this Act may be instituted within 18 months from the date of the offence." (emphasis added). It is clear, therefore, that the 18-month period applied only to offences which are reported to the DPP under the 2005 Act. For example, the Garda Síochána Ombudsman Commission is required to send a copy of a report and investigation file to the DPP where the Commission concludes, after considering a designated officer's report under s. 98 of the 2005 Act, that the conduct of a member of An Garda Síochána may constitute an offence. In circumstances where the 2005 Act was inapplicable, any prosecution at the suit of Mr. G. in respect of offences of a summary nature would continue to be subject to the six-month limitation period prescribed by s. 10(4) of the 1851 Act.
10. Subsequently, at 9:41 a.m., on 10th March 2021, Mr. G sent a further email to the District Court Office enclosing revised draft summonses accompanied by a number of unsworn informations. One draft summons was addressed to the superintendent of Lucan Garda District office alleging withholding of information contrary to s. 19 of the Criminal Justice Act 2011. There were three draft summonses addressed to the arresting garda. In the first draft summons, the offence alleged was false imprisonment. In the second, the offence alleged was assault causing harm. In the third, the offence alleged was making gain or causing loss by deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001. There were also two draft summonses addressed to the other garda involved in the incident, one alleging assault and the other alleging "complicity of false imprisonment". In each information, the same case was made as had been set out in the earlier versions emailed to the District Court Office in February 2021 but they now also contained additional allegations in respect of the following:
(a) In the case of the superintendent, reference was made to a complaint made by Mr. G. to the Lucan Garda District office on 27th August 2019. Reference was also made to an email of 6th September 2019 from a member of An Garda Síochána attached to that office who confirmed that the office supported the prosecution of charges against Mr. G. at the instigation of the arresting garda. The information also contended that, by return email, Mr. G. had informed the member in question that "he will become an accomplice of malicious prosecution". It was also alleged that, "on 11th September 2020 ...[the arresting garda] supported the DPP in bring (sic) forward the charges described ... above ... before this Honourable Court." The reference to 11th September 2020 would appear to be erroneous. As outlined above, the matter had been before the District Court on 11th September 2019. The reference to events on that date appears to form the basis for Mr. G.'s belief that these summonses would not be statute barred. If an 18-month limitation period applied and if the events on 11th September 2019 could be said to provide an independent basis for the offences alleged, Mr. G. was within such an 18-month period in making an application on 10th March 2021 at least in so far as the events of 11th September 2019 are concerned. However, for the reasons explained in para. 9 above, it would appear that Mr. G. was mistaken in thinking that an 18-month limitation period applied;
(b) Similar additional material was also included in the other unsworn information save that there was no reference made to the email exchange with the garda attached to Lucan District office on 6th September 2020. Again, it would appear that Mr. G. believed that the inclusion of this additional material brought the matter within the 18-month limitation period which he appears to have believed was applicable to his applications under s. 10 of the 1851 Act.
Section 10 of the 1851 Act
11. Before describing the hearing which took place in Blanchardstown District Court, the relevant provisions of s. 10 of the 1851 Act and the District Court Rules should be noted. Insofar as relevant, s. 10 of the 1851 Act provides as follows: -
"10. Whenever information shall be given to any justice that any person has committed or is suspected to have committed any treason, felony, misdemeanour, or other offence, within the limits of the jurisdiction of such justice, for which such person shall be punishable either by indictment or upon a summary conviction... and such person is residing or being... within the limits of the jurisdiction of such justice..., it shall be lawful for such justice to receive such information or complaint, and to proceed in respect of the same, subject to the following provisions:
(1) Whenever it is intended that a summons only shall issue to require the attendance of any person, the information or complaint may be made either with or without oath, and either in writing or not, according as the justice shall see fit;
(2) ...
(3) ...
(4) In all cases of summary jurisdiction the complaint shall be made ... within six months from the time when the cause of complaint shall have arisen, but not otherwise...".
12. As will be seen from its terms, s. 10 is capable of being invoked both in respect of indictable offences and offences which can be tried summarily. Given the extensive statutory interventions in the context of criminal procedure which have taken place since its enactment, it may seem surprising that s. 10 of the 1851 Act continues to survive. Nonetheless, as counsel for the DPP readily acknowledged, the right to bring a private prosecution under s. 10 continues to subsist. This is clear from the decision of the Supreme Court in The State (Ennis) v. Farrell [1966] I.R. 107 where the Court held that the right was not displaced by Art. 30.3 of the Constitution which envisages that all crimes and offences prosecuted in any court (other than a court of summary jurisdiction) shall be prosecuted in the name of the People and at the suit of the Attorney General or some "other person authorised in accordance with law to act for that purpose". Since the creation of the Office of the DPP, she now comes within the category of "other person authorised in accordance with law to act for that purpose".
13. The Supreme Court again considered s. 10 of the 1851 Act in the course of its judgment in Kelly v. Ryan [2015] I I.R. 360. At pp. 382-383 of the report, Clarke J. (as he then was) explained that a summons can only be issued under s. 10 following a judicial determination by a District Court judge. He said:
"But the issue of a criminal summons on the application of a common informer is ... not something which the common informer can do as of right. It requires a judicial determination by a District Judge. In that context, a much closer analogy may be drawn with civil cases in which the leave of the court is required in order to commence proceedings. Judicial review proceedings ... are an excellent example. Such proceedings cannot be commenced without leave."
14. In the same case, Clarke J. very helpfully outlined the changes which have been made to procedural law in the context of the issue of summonses commencing criminal prosecutions. At p. 369, Clarke J. outlined that, since the entry into force of the Courts (No. 3) Act 1986 ("the 1986 Act") two parallel systems for the issue of summonses in criminal matters have co-existed in Irish law. The first system is the common informer system (as it is known) under s. 10 of the 1851 Act. The second arose following the decision of the Supreme Court in The State (Clarke) v. Roche [1986] I.R. 619 which held that the process of issuing a summons on foot of a complaint is a judicial, rather than an administrative act. That decision prompted the enactment of new legislation introducing a new simplified system for the routine issue of summonses on foot of applications by members of the gardaí and other law enforcement personnel duly authorised by statute for that purpose. As introduced by the 1986 Act (as amended by the Civil Liability and Courts Act, 2004) there is now an administrative process in place which does not require consideration of an information or complaint by the issuer of the summons and it provides for applications for summonses by the Attorney General, the DPP, a member of An Garda Síochána, or "any person authorised by or under an enactment to bring and prosecute proceedings for the offence concerned".
15. At pp. 369 - 370, Clarke J. explained that, previously, many prosecutions in the District Court were brought by members of An Garda Síochána as private prosecutions on foot of the common informer system. However, that system was altered by s. 8 of the Garda Síochána Act 2005 which provides that any member of An Garda Síochána may institute prosecutions in a court of summary jurisdiction "but only in the name of the Director of Public Prosecutions". That explains why, as Mr. G. described in each of his unsworn informations, the prosecutions listed in the District Court on 11th September 2019 were in the name of the DPP. Section 8(4) of the 2005 Act envisages that the DPP may give, vary or rescind directions concerning the institution and conduct of prosecutions by members of An Garda Síochána and s. 8(3) provides that, in deciding whether to institute and in instituting or conducting a prosecution, a member of An Garda Síochána "shall comply with any applicable direction (whether of a general or specific nature)" given by the DPP under s. 8(4). Section 8(8) explains that, for the purposes of s. 8, a direction of the DPP is of a general nature if it relates to a class of prosecutions while a direction of the DPP is of a specific nature if it relates to the prosecution of a person for a specific offence. Thus, although members of An Garda Síochána have the right to institute proceedings in the name of the DPP without prior authorisation from her, the DPP still has the ability to control an individual prosecution to the extent that the DPP has issued a general direction applicable to prosecutions of that particular class or where the DPP has given a specific direction in relation to a specifically identified prosecution.
16. Clarke J. also noted (at pp. 370-371) that, unlike the position in the United Kingdom, the DPP has no statutory right to take over any private prosecution. Nonetheless, as a consequence of changes made by the Criminal Justice Act, 1999 (which substantially amended the Criminal Procedure Act, 1967) it is clear that a person may not be sent forward by the District Court for trial on an indictable offence except with the consent of the DPP. If the DPP does not consent, the matter must be struck out but without prejudice to the later institution of proceedings against the accused by the DPP. Furthermore, at pp. 371 - 372, Clarke J. identified that, as a consequence of s. 9 of the Criminal Justice (Administration) Act, 1924, the Prosecution of Offences Act, 1974 and Art. 30.3 of the Constitution, a private prosecution cannot be tried on indictment unless the DPP is prepared to take it over. Clarke J. also highlighted, at pp. 372 - 373 that, in the case of many offences which can also be tried summarily, the consent of the DPP is required if they are to be tried summarily. At p. 373, Clarke J. summarised the position as follows: -
"it is clear that an indictable offence cannot be tried on indictment unless the DPP ... is prepared to take it over. It is also clear that prosecution for an offence such as that which arises in this matter can only be tried summarily with the consent of the DPP".
17. In this case, these observations are potentially relevant because, as I previously mentioned, s. 10(4) of the 1851 Act provides that there is a six-month limitation period for the making of a complaint in respect of cases of a summary nature. For the reasons discussed in para. 9 above, Mr. G. appears to have mistakenly believed that an 18-month limitation period applied. In my view, he was wrong in this view. In the case of a private prosecution in respect of a summary offence under s. 10(4) of the 1851 Act, the six-month limitation period continues to apply. Accordingly, Mr. G. could only have brought an application in March 2021 in respect of the matters complained of by him to the extent that the relevant offences which he sought to prosecute were triable on indictment. In turn, it follows that any private prosecution at the suit of Mr. G. would always be subject to a decision by the DPP as to whether or not to take it over. However, it is unclear whether Mr. G. was alive to the fact that the limitation period in respect of summary offences does not apply to indictable offences. It appears from para. 14 of the judgment of the High Court judge under appeal that Mr. G. was under the impression that the alleged offences which he wished to prosecute were of a summary nature. In that paragraph of his judgment, the High Court judge recorded the submission made by Mr. G. that "under the relevant statutory provisions, a complaint against a garda in relation to the commission of a summary offence had to be made within eighteen months of the date of the alleged offence".
18. The decision in Kelly v. Ryan was concerned with an indictable offence. The judgment of the Supreme Court in that case establishes that, for the purposes of an application under section 10 of the 1851 Act, the District Court judge must be satisfied that there is prima facie evidence of each element of the offences which are alleged to have taken place. In addition, the decision also establishes that a person seeking to bring a private prosecution must have a bona fide desire to invoke the criminal process. While the Supreme Court accepted that animosity on the part of the prosecutor towards the accused person is not per se a reason for finding the prosecution to be an abuse of process, it also held that at least part of the motivation for bringing the prosecution must be a genuine desire to invoke the criminal process. Clarke J. explained the position as follows at pp. 380-381:
"61. ...the mere fact that a person mounting a private prosecution may have some animosity towards a potential accused is not, of itself, a reason for making a finding of abuse of process. As the trial judge rightly pointed out, many private prosecutions have mixed motives.
62. However, it is necessary that at least a material part of the motivation must be a bona fide desire to invoke the criminal process in question. But in order to assess whether that can be so in the circumstances of an individual case it is necessary to have regard to the parameters of the criminal process in question. In the light of the legislative developments which I have sought to analyse it is impossible for a private prosecution commenced under the common informer system to progress to trial (or, indeed, to sentence on a plea of guilty) at all without a positive decision on the part of the DPP. At its height, all it can be said that may be achieved by the initiation, in the context of an indictable offence, of a private prosecution is that it would bring to the attention of the DPP. the possibility that an offence of the type alleged may have been committed. Even if relevant investigative authorities may have chosen either not to investigate or to recommend a prosecution, nonetheless, the fact that a private individual has persuaded a District Judge to issue a summons might be considered of some value in that regard ...
63. However, if the private prosecution is to be, at least in part, motivated by a bona fide desire to invoke the criminal process then it can only be aimed at bringing matters to the attention of the DPP to enable an appropriate decision to be taken. The fact that there was a deliberate and conscious attempt on the part of Mr. Halpin and his advisors to keep the DPP out of the picture in this case seems to me to point heavily against there being a bona fide intention behind the initiation of the proceedings in the first place."
19. The last sentence in that extract explains why the Supreme Court considered the private prosecution in that case to amount to an abuse of process. Notwithstanding the fact that the prosecution of the indictable offence in issue would have to be referred to the DPP for a decision as to whether the prosecution should be taken over by her, Mr. Halpin, the private prosecutor in that case, had done nothing to bring the prosecution to the attention of the DPP. For that reason, the Court concluded that there was insufficient evidence of a bona fide intention to invoke the criminal process. While that was so in that particular case, it is important to keep in mind that there is nothing in the judgment of Clarke J. to suggest that abuse of process is confined to prosecutions of that kind. The question whether a private prosecution amounts to an abuse of process will always depend on the facts and circumstances of an individual case.
The District Court Rules
20. Under O. 15, r.1(1) of the District Court Rules, an application under s. 10 of the 1851 Act is made by means of a complaint to a District Court judge. The Rule further provides that the application may be made in sworn or unsworn form as the District Court judge shall direct. In this case, Mr. G. presented unsworn informations to the District Court judge. There was no direction that they should have been sworn.
21. In turn, O. 15, r.1(3) provides:
"Having received such complaint, the Judge may issue a summons in any case in which that Judge has jurisdiction in the district to which he or she is assigned."
22. In this case, it is clear that the Judge sitting in Blanchardstown District Court had the relevant jurisdiction under O. 15, r. 1(3) to issue the summonses.
The hearing of Mr. G.'s application under s. 10 of the 1851 Act
23. Mr. G. arrived at Blanchardstown District Court at 10:45 a.m. on 10th March 2021, having emailed the District Court office beforehand to explain that he would be a little late. As noted above, Mr. G. had supplied copies of his proposed summonses and the relevant informations on which they were grounded in advance of the sitting. He had also referred in his email of 5th March 2021 to the decision of the Supreme Court in Kelly v. Ryan. In his affidavit verifying his statement of grounds, Mr. G. said that he sought to read his informations to the District Court judge in the course of the hearing but the District Court judge indicated that he had already read them. This is reflected in the transcript of the hearing that was made from the digital audio recording ("the DAR") of the proceedings. It is also clear from the transcript that the judge asked Mr. G. whether the matters complained of in the informations related to the incidents in Ronanstown Garda Station and Liffey Valley Shopping Centre and that he also asked Mr. G. whether they related to the proceedings "presently against you being taken by the gardaí". Mr. G. confirmed that they were. He said that the prosecutions against him were taken "despite me making a complaint bringing those informations." The judge also asked Mr. G. on a number of occasions whether he had anything additional that he wished to bring to the Court's attention. Having made it clear that he had read all of the material forwarded to the District Court Office, the judge asked Mr. G. whether there was "anything else that you want to say". Mr. G. responded that he "just wanted to read out this information into the Court recording, that's what I wanted to do. ..." Given that the judge had already read the papers, it is clear that it was unnecessary to take that step.
24. At the conclusion of the brief hearing, the judge gave a ruling in which he refused the application. In his ruling, the judge said: -
"Very good. Thank you [Mr G] you can take a seat and keep a careful note. I have asked the Director of Public Prosecutions also to take a note, because I think he is ultimately, or she is ultimately, the respondent in this matter. Take a careful note now, sir, settle yourself down there and get out a pen and start writing.
Okay. This is an application brought by [Mr G] seeking an issue of a private summons against certain gardaí at Ronanstown Garda Station in respect of an alleged incident which is supposed to have occurred on August 21st [sic] at Liffey Valley Shopping Centre and later at Ronanstown Garda Station. There is no doubt that private prosecutions have survived the various legislative enactments over the years, but they are extremely rare. The ultimate purpose of a private prosecution is to bring to the attention of the Director of Public Prosecutions some criminal wrongdoing and at that point, the Director of Public Prosecutions would consider taking the proceedings over.
In looking at the unsworn information of [Mr G], which I have had the benefit of reading and considering, and hearing what he has had to say, I note that the subject matter of the - his complaint, relates to certain charges which now are before the courts, brought by the Director of Public Prosecutions at the suit of various gardaí in respect of the alleged events of 21 August 2021 [sic], that is to say the 25th of August 2021 [sic]. Therefore, it can be said as a matter of certainty the Director of Public Prosecutions is aware of the matter.
On looking at the substance of the application brought by [Mr G], the court has considered all that has been written and all that has been said, and I am satisfied in relation to the matter that any further consideration of the substance of the proceedings, they being presently extant before the court, would cause substantial risk of prejudice to those criminal proceedings. in respect of the procedural aspects of the case presently before the court I [Mr G], I consider the application to be premature. I also consider it to be a procedural abuse of the proceedings of the process of the court where criminal proceedings are presently in being and will be determined in due course. For these reasons, I refuse the application. Thank you, next case."
25. It is clear from this ruling that, having read the summonses and informations presented by Mr. G. and bearing in mind the existing criminal proceedings pending against Mr. G., the District Court judge considered that the proposed prosecutions were an abuse of process. The judge stressed that he had read everything. His ruling should therefore be read in that light. It should not be read in isolation. Accordingly, it is necessary to read the ruling in conjunction with the contents of the draft summonses and informations presented by Mr. G. to the court in advance of the hearing of the application. As noted above, the transcript clearly shows that the judge was aware of the existing criminal proceedings and of their relationship to the charges which Mr. G. sought to bring against the officers responsible for his arrest and the other officers named in the summonses. It is also clear that the judge was aware of the principles which emerge from the judgment of Clarke J. in Kelly v. Ryan. This follows from his reference to the purpose of a private prosecution being to "bring to the attention of the Director of Public Prosecutions some criminal wrongdoing and at that point, the Director of Public Prosecutions would consider taking the proceedings over." Those words plainly echo the language of Clarke J. in Kelly v. Ryan at pp. 372-373 addressed in para. 18 above.
The application for judicial review of the decision of the District Court
26. Mr. G. was unhappy with his experience before the District Court judge and, on 24th May 2021, he filed a statement of grounds pursuant to O. 84, r. 20(2)(a) for the purposes of an application for judicial review. He also filed an affidavit verifying his statement of grounds which was affirmed on 24th May 2021. The District Court judge was personally named as a respondent in the proceedings together with "Blanchardstown District Court Office". That was contrary to the requirements of O. 84, r. 22(2A) which makes clear that, in a judicial review application relating to any proceedings before a court, the judge of the Court concerned shall not be named in the title of the proceedings. When Mr. G. made an application to the High Court on 21st June 2021 on an ex parte basis for leave to bring judicial review proceedings, the High Court (Meenan J.) made an order directing that the title of the proceedings should be amended such that the name of the first named respondent should be changed to read "A Judge of the District Court". The Court also directed that the application for leave should be brought on notice to the respondent judge and notice parties and he further gave Mr. G. liberty to take up a transcript of the DAR of the hearing in the District Court on 10th March 2021. An order was also made on that occasion pursuant to s. 45 of the Courts (Supplemental Provisions) Act, 1961 that the publication or broadcast of any matter relating to the proceedings which would or could identify Mr. G. or his minor children be prohibited until the determination of the proceedings
27. Subsequently, the application for leave to bring these proceedings was heard by the High Court (Simons J.) on a number of dates between 21st November 2022 and 20th February 2023 following which a written judgment was given on 27th March 2023 ([2023] IEHC 142). In that judgment, Simons J. noted that the statement of grounds did not comply with the requirements of O. 84, r. 20(3) in that, for the most part, it merely identified the relief sought by Mr. G. but did not set out the grounds and facts on the basis of which such relief was sought. He therefore refused to grant leave save in respect of one ground namely the relief sought at para. 5A(ii) which reads: -
"A. Order of Certiorari ....
...
(ii) in relation to the application for the issuance of Private Prosecution Summons forwarded by email and heard by the first named respondent on the 10.03.2021 and refused on the ground that it would be an abuse of process and they relied on unsworn evidence.
The allowable Grounds for refusal of such application (for the issuance of Private
Prosecution Summons) have been recently highlighted by the Supreme Court in Kelly & anor v Ryan1 as the absence of any of the following: a) 'prima facie and arguable case' §10.2 b) 'a bona fide desire to invoke the criminal process intention to prosecute[.../ it can only be aimed at bringing matters to the attention of the D.P.P. to enable an appropriate decision to be taken. §§9.1 -9.2
This point (b) is set as the definition of 'abuse of process' in common informer system of private criminal prosecution" (underlining in original).
28. In essence, the case made in para. 5A(ii) is that the decision to refuse to issue the summonses did not comply with the principles established in Kelly v Ryan. The basis upon which Simons J. formed the view that it was appropriate to grant leave in respect of this aspect of Mr. G.'s application was explained in para. 31 of his judgment as follows: -
"Insofar as the reliefs sought at paragraph 5A are concerned, however, I am satisfied that there is sufficient in the statement of grounds to identify the gravamen of the case being made in respect of the claim for an order of certiorari setting aside the decision of the District Court on 10 March 2021. The applicant's case is that the decision to refuse to issue the summonses against the members of An Garda Síochána does not comply with the criteria identified by the Supreme Court in Kelly v. Ryan [2015] IESC 69, [2015] 1 I.R. 360. This judgment is expressly cited in the statement of grounds. It is pleaded, variously, that the refusal is in contravention of the Supreme Court judgment, and that the allowable grounds for the refusal to issue a summons are confined to the absence of a prima facie and arguable case and the absence of a bona fide desire to invoke the criminal process."
29. The matter appeared again before the High Court on 17th April, 2023 when Mr. G. intimated that he intended to bring an application to re-open the judgment of 27th March 2023. Directions were given by the judge on that occasion for the exchange of written submissions in relation to that application. Mr. G. did not comply with the time limit fixed for the delivery of his submissions but, by a further order of the High Court made on 22nd May 2023, the time for delivering his submissions was extended to 12th June, 2023 and the matter was adjourned to 19th June 2023. The time for doing so was further extended up to 21st June 2023 by a later order of 19th June 2023. Subsequently, the parties agreed that the application to re-open the judgment could be determined on the basis of the written submissions. At the same time, an application was made by the DPP to be joined to the proceedings as amicus curiae. In a written judgment delivered on 10th July 2023 ([2023] IEHC 386) Simons J. refused the application to revisit his earlier decision. In addition, in the same judgment he addressed the role of the DPP in the proceedings. The judge took the view that it would not be appropriate to join the DPP as amicus curiae and that, instead, the DPP should be joined as a notice party. His reasons for taking that view are explained in para. 54 of his judgment as follows:-
"54. Whereas I can understand the concern expressed on behalf of the Director as to her precise status in the proceedings, I have concluded that it would not be appropriate to characterise her role as that of an amicus curiae. The status of an amicus curiae is normally reserved to entities who are not affected by the outcome of the proceedings. By contrast, the Director may, potentially, be directly affected by the outcome of the present proceedings. The ambition of the proceedings is to have the District Court issue summonses against members of An Garda Síochána and this will then require the Director to make a decision as to whether to pursue a criminal prosecution against them: see Kelly v. Ryan [2015] IESC 69, [2015] 1 I.R. 360. Accordingly, I have concluded that the Director of Public Prosecutions should be afforded the status of a notice party. Given the potential conflict of interest between the Director and the members of An Garda Síochána, it would seem preferable that the latter should have separate legal representation if they are to participate in the proceedings."
30. Following the delivery of that judgment, the matter came before the High Court again on 24th July 2023. On that day Mr. G. applied for the recusal of the High Court judge. That application was refused. The refusal of that application is recorded in the curial part of the order made on that day. The order also gave Mr. G. leave to apply for judicial review for the relief claimed at para. 5A(ii) of the statement of grounds on the grounds set out in that paragraph. The order also records that the application for leave to apply for the balance of the reliefs claimed was refused as was an application for leave to amend the statement of grounds. The order made under s. 45 of the 1961 Act was continued. Subject to a stay pending the determination of the proceedings, an order for costs was made as against Mr. G. in favour of Blanchardstown District Court Office. That office had originally been named as a respondent to the proceedings but was removed. Mr. G. was directed to issue and serve an originating notice of motion within seven days returnable on 14th November 2023. However, that direction was not complied with. By further order made by the High Court in January 2024 the time for taking that step was extended to 13th February 2024. Again, Mr. G. did not comply with that direction. A subsequent order was made on 5th March 2024 further extending the time for issuing and serving the notice of motion to 19th March 2024. The motion was ultimately filed on that date and the application ultimately came on for hearing before the High Court (Barr J.) on 18th July 2024.
31. The history of the proceedings before the High Court therefore shows that there were repeated failures on the part of Mr. G. to comply with directions made by the High Court. Those failures to comply with Court directions led to a delay of many months in the progress of the proceedings before the High Court. I have to say that this is entirely unsatisfactory. All litigants need to be aware that it is essential to comply with directions made by the Court and that non-compliance with such directions can have very serious consequences. The relevant principles governing the consequences of a failure to comply with court directions are addressed in a number of decisions of the Supreme Court and of this Court including Tracey v McDowell [2016] IESC 44, Tracey v Irish Times Limited [2019] IESC 62 and Greenwich Project Holdings Limited v Cronin [2022] IECA 154. It is particularly important that directions of the Court in judicial review proceedings should be complied with. In contrast to private law litigation, judicial review proceedings can have far reaching consequences for parties who are not before the Court. There is an obvious public interest in ensuring that judicial review proceedings are brought to a hearing expeditiously and not unnecessarily delayed. This applies with even greater force in cases involving criminal prosecutions or potential criminal prosecutions. There is a clear and pressing public interest to ensure that such proceedings are not unduly delayed by the existence of judicial review proceedings. This makes it particularly important that time limits fixed by the Court in judicial review proceedings should be complied with.
The substantive decision of the High Court
32. At the commencement of the hearing in the High Court on 18th July 2024, Mr. G. provided written submissions to the Court (in addition to his oral submissions). These had not been served in advance on the DPP. A copy of those submissions was made available to this Court for the purposes of this appeal. The submissions are dated 18th July 2024 and they address matters which go beyond the specific issue in respect of which leave to apply for judicial review was granted by the High Court (namely the relief sought at para. 5A(ii) of the statement of grounds). Among the issues canvassed in the written submissions is an issue which was not raised previously by Mr. G. (and in respect of which no leave to apply for judicial review had been sought or granted) namely an allegation that there had been a failure on the part of the District Court judge to give reasons for his decision. Two authorities were cited for this purpose namely Oates v. Browne [2016] IESC 7 and Doyle v. Banville [2012] IESC 25 subsequently reported at [2018] 1 I.R. 505. The DPP was represented by solicitor and counsel at the hearing of 18th July 2024 but they do not appear to have identified that the written submissions delivered on that morning addressed this additional ground. That is understandable in circumstances where the submissions were not furnished in advance.
33. After hearing argument in relation to the substantive matter (and also in relation to a separate application made by Mr. G. to the High Court judge to recuse himself, which was refused) the High Court judge reserved judgment. As noted earlier, judgment was subsequently delivered on 16th September 2024. In his judgment, the High Court judge carefully considered the decision of the Supreme Court in Kelly v Ryan. The judge noted that, in that case, the Supreme Court held that, on an application under s. 10 of the 1851 Act, there must be prima facie evidence of each element of the offences which the applicant seeks to bring forward and the District Court judge hearing the application must be satisfied that the applicant has a bona fide desire to invoke the criminal process against the persons sought to be charged in the private prosecution. He also noted that, in Kelly v Ryan, the Supreme Court had found that the mere fact that a person mounting a private prosecution may have some animosity towards a potential accused person is not, of itself, a reason for making a finding of abuse of process. A material part of the motivation must, nonetheless, be a bona fide desire to invoke the criminal process in the case in question. The High Court judge further observed that the matters to be considered by a District Court judge, when considering whether a s. 10 application constitutes an abuse of process, are not limited to a consideration of the matters discussed in Kelly v Ryan.
34. The High Court judge then turned to consider the decision given by the District Court judge in this case. He noted that the legislature has not expressly precluded an applicant from applying for the prosecution of a member of An Garda Síochána who also happens to be conducting a prosecution against the applicant pursuant to the powers conferred on members of An Garda Síochána by s. 8 of the 2005 Act. The High Court judge observed that, if the District Court judge had reached his decision solely on the basis that the proposed respondents to the private prosecution were prosecuting Mr. G. for an offence under the public order legislation, such a decision would have been outside the jurisdiction of the District Court judge. However, at the same time, the High Court judge appears to have formed the view that the District Court judge had given his decision on that very basis. In para. 29 of his judgment, he stated that the essence of the decision revolved around the proposition that, because Mr. G. was facing prosecution by the gardaí against whom he wishes to issue summonses, "his application was, therefore, ipso facto premature and an abuse of process" (emphasis added). On the issue of prematurity, the High Court judge observed that the ruling of the District Court judge did not say why the application was premature and did not explain why the judge was of opinion that it could not properly have been brought. There is, however, nothing in the terms of para. 5A(ii) of the statement of grounds which raises any issue in relation to prematurity. In para. 24 of his judgment, the High Court judge also observed that the information provided by Mr. G. in the present case contained prima facie evidence of the necessary elements required to ground the offences alleged against the members of An Garda Síochána "being assault and false imprisonment". However, those were not the only offences alleged in the draft summonses presented by Mr. G. As noted in para. 10 above, a number of the draft summonses forwarded by Mr. G. to the District Court office also included additional allegations including withholding of information contrary to s. 19 of the Criminal Justice Act 2011 and making gain or causing loss by deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
35. In paras. 32 to 37 of his judgment, the High Court judge came to the conclusion that the ruling of the District Court judge did not contain adequate reasons for the decision to refuse to allow the summonses to be issued. The High Court judge said: -
"32. It is well settled at law that courts and other statutory bodies must give adequate reasons for their decisions. I am satisfied that in the present case, while the
learned District Court judge, clearly read all the papers that had been put before him and listened carefully to the submissions made by the applicant, he did not give any reasons as to why the application was deemed to be premature, or why it constituted an abuse of process. There was merely a statement that he considered the application to be premature. He then went on to say simply that he considered it to be a procedural abuse of the proceedings of the process of the court where criminal
proceedings are in being and will be determined in due course. If that amounts to an assertion that a person against whom criminal prosecutions are pending can never seek the issuance of summonses against the gardai who were involved in his arrest and detention, that would appear to go well beyond the provisions of the legislation,
as it currently stands.
33. In Kelly v Ryan, the argument was made that the Oireachtas had by necessary implication, abolished the private prosecution procedure provided for under the 1851 Act, when it abolished the preliminary' examination procedure in the District Court in the 1999 Act. It was held in both the High Court and the Supreme Court, that a statutory right that had existed for so long, could not be abolished by implication. It would need clear language to abolish such rights.
34. Similarly, the statute does not provide that persons facing prosecution, cannot avail of the right to seek the issuance of a summons against the prosecuting gardai. One cannot read in such a blanket restriction on the right, on grounds of public policy. To do so, would involve the courts trespassing into the legislative domain and amending the legislation. That is something that the courts cannot do.
35. If the District Court judge was of opinion that in the circumstances of this case, he or she should exercise the discretion against issuing such summonses because that would amount to an abuse of process, they must state clearly why they reached that conclusion.
36. That is all the more important where a refusal at this stage, may mean that the applicant would be out of time to issue any summons against the gardai alleging the commission of a summary offence; thereby barring his right in perpetuity.
37. Accordingly, on the grounds that the ruling of the District Court judge does not contain adequate reasons, I will quash the Ruling of the District Court judge made on 10 March 2021 and will remit the matter back to the District Court for a fresh hearing of the application."
36. These paragraphs suggest that the sole ground on which Mr. G. succeeded in the High Court was on the basis of this finding by the High Court judge that there was a failure on the part of the District Court judge to provide adequate reasons for his decision to refuse to permit Mr. G. to pursue his proposed private prosecutions under s. 10 of the 1851 Act. However, as noted in para. 34 above, paragraph 29 of the judgment suggests that the High Court judge had reached a conclusion as to the essence of the decision given by the District Court judge. As further noted in the same paragraph, the High Court judge also stated, in para. 24 of his judgment, that the informations provided by Mr. G. in the present case contained prima facie evidence of the necessary elements required to ground the offences alleged against the members of An Garda Síochána. These findings are relevant to the DPP's grounds of appeal.
The appeal by the DPP
37. As noted in para. 2 above, the DPP relies upon a number of grounds of appeal. In the first place, it is contended that failure to give reasons was not a ground on which Mr. G. had been granted leave to seek judicial review. It was also contended that the High Court judge erred in law and in fact in substituting his own view for that of the District Court judge. It is further contended that the District Court judge was correct in law and in fact and acted within his jurisdiction in determining, in the exercise of his discretion, that the application under s. 10 was an abuse of process where the proposed summonses were sought against members of An Garda Síochána who were involved in a criminal prosecution against Mr. G. that was then pending before the District Court and "where it was evident that ... Mr. ... G. did not have a bona fide desire to invoke the criminal process against the Gardaí in question as they were themselves prosecution witnesses in a pending criminal prosecution against Mr. ... G. which arose out of the same incident."
38. For completeness, it should be noted that there were other grounds of appeal set out in the DPP's notice of appeal but it is unnecessary to consider them individually. For the reasons discussed below, the appeal can be resolved on the basis of grounds summarised in para. 37 above.
Mr. G's cross-appeal and respondent's notice
39. It should also be noted that Mr. G. has cross-appealed on the basis that the High Court was in error in not addressing Mr. G.'s application to review or revisit his decision. No sufficient basis has been put forward to support that contention. Although Mr. G.'s written submissions (produced at the commencement of the hearing of the appeal) mention the well-known decision of the Supreme Court in Nash v. DPP [2017] IESC 51, no attempt is made to apply the test laid down in that judgment to any relevant facts. In the circumstances, it is unnecessary to address this issue any further. Those submissions also canvass a wide range of other legal principles (ranging from the right to a good name to the topic of effective remedies) which are not relevant to the grounds of challenge in these proceedings and, for that reason, are not addressed in this judgment.
40. Mr. G. also contended that the High Court judge erred in relation to the manner in which he addressed the issue of costs. Essentially, the High Court judge made no order as to costs notwithstanding Mr. G.'s success before the High Court in these proceedings. This was done in circumstances where Mr. G. failed to succeed in a separate set of judicial review proceedings. Notwithstanding that Mr. G. had failed in those proceedings, the High Court made no order as to costs against him. The High Court appears to have taken the view that the fairest way to deal with the costs of both sets of proceedings was that, in lieu of making individual orders for costs in favour of the winning party in both sets of proceedings, Mr. G's success in one set of proceedings should be set off against his failure in the second set of proceedings with the result that the High Court judge made no order as to costs in either proceedings. In this context, it should be noted that, as a matter of practicality, Mr. G., who is self-represented, was better off under the order made by the High Court judge in relation to costs. As a self-represented litigant, the most that Mr. G. could ever recover on foot of an order for costs in his favour is an order in respect of his outlays and expenses. A self-represented litigant will not recover the equivalent of the professional fee that a legally represented party will recover. This is clear from the decision of the Supreme Court in Tracey v McDowell [2021] IESC 38. For that reason, had the usual order for costs been made with an order in his favour in these proceedings and an order in favour of the legally represented respondents or notice parties in the second set of proceedings, Mr. G. would have been worse off in light of the likelihood that the costs recoverable by the successful respondents or notice parties in the other set of proceedings would have exceeded the outlay and expenses recoverable by Mr. G., as a self-represented litigant, in these proceedings. In any event, the issue which Mr. G. has raised in his respondent's notice in relation to costs will only be relevant in the event that the DPP fails in this appeal. If the DPP succeeds in the appeal, it would ordinarily follow that Mr. G. would lose the prima facie entitlement to costs that arises following success in court proceedings.
41. In his notice, Mr. G. also made the case that the DPP had no entitlement to appeal the High Court's decision. This is plainly wrong. The DPP was joined as a notice party to the proceedings by order of the High Court. It is well established that, in judicial review proceedings, a notice party has the same right of appeal as a respondent. The extensive rights available to a notice party in judicial review proceedings has recently been reaffirmed by the Supreme Court in Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4.
42. In addition, it is alleged by Mr. G. in his notice that the High Court judge erred by not making a finding in relation to the limitation period for the issuing of summonses against members of An Garda Síochána. That issue was not covered by para. 5A(ii) of Mr. G's statement of grounds and, accordingly, the High Court judge was not in error in not addressing it.
43. In his notice, Mr. G. further contended that the High Court judge erred by not indicating which applications were to be remitted to the District Court. That issue will only arise in the event that the DPP does not succeed in her appeal. If the DPP succeeds in her appeal, there will be no question of remitting any matter to the District Court and this issue will fall away.
44. I turn now to consider the relevant grounds of appeal raised by the DPP.
The ground of appeal relating to the ambit of the judicial review proceedings
45. It is well settled that, in judicial review proceedings, the only issues that can be addressed by the Court are those which are raised in the statement of grounds and which the Court has given leave to pursue. This principle is now encapsulated in O. 84, r. 23(1) RSC which provides as follows: -
"23. (1) A copy of the statement in support of an application for leave under rule 20, together with a copy of the verifying affidavit must be served with the notice of motion or summons and subject to sub-rule (2), no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement." (Emphasis added)
46. Order 84, r. 23(2) permits the court, on the substantive hearing of the judicial review application, to allow an amendment to the statement of grounds but this, in turn, is subject to O. 84, r. 23(3) which provides that, where the applicant intends to apply for leave to amend a statement of grounds, notice of the intention to make that application must be given to all other parties. In this case, no such notice was given by Mr. G. to the DPP and no application was made by him to amend the statement of grounds. Thus, the allegation that there was a failure on the part of the District Judge to provide adequate reasons for his decision was not part of the case which Mr. G. had been given leave to pursue and could not form the basis for the grant of relief by the High Court.
47. This was the position even prior to the enactment of the current version of O. 84, r. 23. In A.P. v. Director of Public Prosecutions [2011] 1 IR 729, the Supreme Court held that, unless the Court permitted an amendment to the grounds, the High Court, on the substantive hearing of the judicial review proceedings, is limited to the grounds for review as provided for in the order granting leave to bring judicial review proceedings. At pp. 734 - 735, Denham J. (as she then was) explained the position as follows:
"[17] When an applicant seeks leave to apply for judicial review he does so on specific grounds stated in the statement required. On the ex parte application for leave the High Court Judge may grant leave on all, or some, of the grounds sought or may refuse to grant leave. The order of the High Court determines the parameters of the grounds upon which the application proceeds. The process requires the applicant to set out precisely the grounds upon which the application is to be advanced. On any such application the High Court has jurisdiction to allow an amendment of the statement of grounds, if it thinks fit. Once an application for leave to appeal has been granted the basis for the review by the court is established.
[18] In this case the ground upon which the relief was sought is as set out previously. This then is the scope of the review to be made by the court.
[19] The High Court, in a wide ranging judgment, refused the application. In the analysis by the High Court Judge he addressed issues outside the grounds granted for the judicial review, in the absence of any order, or consent, to amend the statement of grounds. In this he fell into error. A court, including this court, is limited in a judicial review to the grounds ordered for the review on the initial application, unless the grounds have been amended. In this case the grounds for review are limited, essentially that a fourth trial would be an abuse and unfair, and were not amended."
48. In the same case, Hardiman J. referred to the fact that, in the course of the proceedings in the High Court, the applicant's solicitor had filed an affidavit raising, for the first time, an issue of delay in the prosecution of the applicant. The issue had not been raised in the statement of grounds and no leave had been given to pursue judicial review on that ground. At pp. 738 - 739 Hardiman J. dealt with the issue as follows: -
"[41] Although the question of delay and of the letter was raised by the applicant's solicitor in his affidavit, neither question is reflected in the grounds on which leave to seek judicial review was sought. Furthermore, after the facts had been deposed to on affidavit by Mr. Burke, no attempt was made to amend or extend those grounds.
[42] In the argument on the hearing of this appeal, counsel for the applicant (who did not appear in the High Court or at the criminal trials) submitted that the material in relation to delay and the letter was in fact before the court and might be considered in the interest of doing justice between the parties. Counsel for the respondent said that her side was not on notice of any intention to rely on these matters and no attempt had been made to bring them properly into the case.
[43] In too many judicial review cases, it will be found that little attention has been paid to the absolute necessity for a precise defining of the grounds on which relief is sought until the case is actually before the court. In my view, this case furnishes an extreme example of this unfortunate tendency. The delay in the case and the consequent anxiety to the defendant are an obvious feature but they are not relied upon at all in the grounds and are only developed in the solicitor's replying affidavit. There is no attempt to define the precise level of anxiety and the effect, if any, on other family members, as was done in D.S. v. Judges of the Cork Circuit Court [2008] IESC 37, [2008] 4 IR 379.
[44] If delay was an obvious feature of the case, the letter demanding money was the most dramatic feature of the case. But this was not mentioned either until the solicitor's replying affidavit and does not feature at all in the statement of grounds. There is clearly scope to argue that such a development may affect the prosecution's ability to proceed to a further trial: see M.G. v. Director of Public Prosecutions [2007] IESC 4, [2007] 2 IR 738. The defendant was aware of this letter some years prior to the first trial and one must assume that his legal advisers were aware of it also. Nothing was done to bring it into the case in a proper way and put the other side on proper notice of it."
49. Similar observations were made by Fennelly J. at p. 745 where he said: -
"[65] The application for judicial review is thus very narrowly based. It claims in essence that it is inherently unfair to put the applicant on trial on a fourth occasion. It is notable that neither the original grounding affidavit nor the statement of grounds makes any mention of delay or of the letter demanding money of November, 2002. I am satisfied that the applicant should not be allowed to argue either of these matters on the present appeal. No leave was granted to rely upon them. Delay is, in many cases, a legitimate element of background. For example, where there is prosecutorial delay, it is well established that the fact of pre-existing long delay in making a complaint may be a relevant factor. However, there is no complaint of prosecutorial delay in the present case. Insofar as long delay may, in itself, be a ground for restraining a prosecution, it will be necessary to establish that the delay itself has led to the existence of a real and serious risk to the fairness of the trial (see S.H. v. Director of Public Prosecutions [2006] IESC 55, [2006] 3 IR 575). No leave was obtained from the High Court to argue delay as a ground."
50. The approach taken in A.P. v Director of Public Prosecutions has been reiterated in a number of decisions of the Supreme Court which address the current version of Order 84, r. 23. For example, in Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC 28, Murray J. emphasised that an applicant in judicial review proceedings is confined to the particular grounds which are pleaded in the statement of grounds in respect of which leave has been given to pursue the relief claimed. In paras. 41 to 43 of his judgment he stated: -
"41. ... The governing principles can hardly be in doubt. The Statement of Grounds required to initiate an application for leave to seek judicial review must identify the relief sought, and the 'particular grounds upon which each such relief is sought' (O. 84 R. 20(2)(ii)). It is not sufficient for these purposes to give as a ground 'an assertion in general terms of the ground concerned', but must 'state precisely each such ground' (O. 84 R. 20(3)). A Statement of Grounds may be amended both at the time of the leave application (O. 84 R. 20(4)) or thereafter (O. 84 R. 23(2)), but absent such an amendment the Rules are emphatic in their stipulation that 'no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement' (O. 84 R. 23(1)). It is because of these provisions that it has been stressed that judicial review is a procedure in which 'leave must be sought in relation to specific reliefs aimed at specific decisions, on specific grounds' (Khashaba v. Medical Council [2016] IESC 10 (per O'Malley J. at para. 56).
42. It is thus to be expected that both the importance of the manner in which a claim is pleaded, and the strictness with which that requirement will be enforced, has been consistently stated and restated (Casey v. Minister for Housing, Planning and Local Government [2021] IESC 42 at paras. 29-32 per Baker J.). Whatever flexibility may be demanded by the interests of justice in a particular case, it is axiomatic - and indeed the Trial Judge rightly framed the matter in these terms - that the power of the Court to grant reliefs that are not specifically claimed is conditioned by and must (at least unless the affected parties agree otherwise) be exercised within the contours of the case as defined by the pleaded grounds. ...
43. The Appellant was in error in suggesting that it was an answer to these basic features of proceedings by way of judicial review to propose that matters that were not pleaded could, notwithstanding that default, be relied upon to ground relief because they "arose in the course of debate in the High Court". It was also wrong in saying that in some sense the pleading objection raised against it dissolved because the notice party had said it was not obliged to make an application under SI 456/2011 and that this excused it from bringing "a challenge to a hypothetical process". The parties are expected to identify the alleged legal frailties in a challenged decision before they seek leave for judicial review and, where they have not done so in some respect and the justice of the case so requires, the Court may in certain circumstances enable the pleadings to be amended (the Appellant has never applied to either amend its pleadings, or to seek permission to argue new points on appeal). The purpose of proceedings by way of judicial review is thus to enable a party who has identified a legal error in a decision of, or process undertaken by, a public body to challenge the legality of that decision on the basis thus identified. The grant of leave is the extension of a permission to pursue that ground of challenge, not the opening of an investigation into whether the decision or process is unlawful on any grounds that might subsequently present themselves in the course of the ultimate hearing of the matter."
51. It is clear from the approach taken by the Supreme Court in that case that a party cannot rely on the fact that an issue may have been debated in the High Court. Unless the issue has been properly raised in the statement of grounds, it is not an issue which falls for consideration by the High Court in judicial review proceedings. Mr. G. was, accordingly, confined to the specific ground stated in para. 5A(ii) of his statement of grounds. That was the only ground in respect of which he had been given leave to pursue a claim in these proceedings. He was therefore plainly not entitled to rely on the plethora of grounds which he sought to ventilate in his written submissions presented to the High Court on the morning of the hearing. These include his attempt to rely on what he described as the "law on effective remedy even against persons acting in an official capacity" and the extensive submissions he made in relation to what he described as "requirement of a reasoned decision v arbitrary decisions & denial of justice" or "absence of due process & fair hearing" or "risk of prejudice" or "applications premature". None of those matters could be said to fall within the ambit of para. 5A(ii) of the statement of grounds. Nor was Mr. G. entitled to proceed in the manner suggested in para. 7 of his written submissions to the High Court in which he stated that he proposed to make submissions as if para. 5A(ii) of his statement of grounds read as follows: -
"In relation to the application for the issuance of Private Prosecution Summons forwarded by email and heard by the first named respondent on the 10.03.2021 and refused on the ground that –
(i) there was a risk of prejudice;
(ii) those applications were premature;
(iii) those applications were an abuse of process".
52. The Supreme Court authorities demonstrate very clearly that Mr. G. was not entitled to proceed in this way. It is, nonetheless, striking that, even in his purported reformulation of para. 5A(ii) of the statement of grounds, he did not identify that lack of reasons fell within the ambit of the claim that he sought to make in that paragraph (albeit that he sought to raise the alleged lack of reasons in a later part of his written submissions). It is equally striking that inadequacy of reasons was not a complaint made by Mr. G. when he launched these judicial review proceedings on 24th May 2021 at a time when the ruling given by the District Court judge was still fresh in his mind.
53. In light of the approach taken by the Supreme Court in A.P. v. Director of Public Prosecutions, and, more recently, in Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála, it is very clear that, in the absence of an order expressly expanding the grounds for judicial review, the High Court is limited, on the hearing of a judicial review application to those grounds in respect of which leave has been given under the terms of the order granting leave to pursue the judicial review proceedings. It is equally clear in this case that the order of the High Court giving Mr. G. leave to bring judicial review proceedings did not extend to any allegation that the District Court judge had failed to provide adequate reasons for his decision to refuse the relief sought by Mr. G. under s. 10 of the 1851 Act. As noted in para. 27 above, the sole ground on which Mr. G. was given leave to pursue these judicial review proceedings was that set out in para. 5A(ii) (which is replicated in full in para. 27 above). There is no reference to insufficiency or inadequacy of reasons in that paragraph. At the hearing on 18th July 2024, there was accordingly no basis on which Mr. G. was entitled, in his oral or written submissions, to make any argument as to inadequacy of reasons.
54. The fact that Mr. G. was representing himself in the proceedings without the benefit of solicitor or counsel does not alter the position. As O'Donnell C.J. observed in Munnelly v. Hassett [2023] IESC 29, at para. 41: -
"... any litigant whether represented or unrepresented must obey the same fundamental rules, and a self-representing litigant must adhere to the same principles as are applicable to proceedings in which the parties are represented by lawyers. The Court is entitled to seek precision and clarity from all parties, as that is essential if the court is to be in a position to best perform its function and administer justice between them ..."
55. I am therefore of the view that the High Court judge fell into error in granting an order of certiorari on the ground that the District Court Judge failed to give adequate reasons for his decision. That was not part of the case which Mr. G. was entitled to argue. For completeness, it is unclear whether this formed part of his oral argument on the day of the hearing in July 2024. It is true that it was raised in his written submissions that were handed into court on the morning of the hearing in the High Court. The fact that such a submission was made is recorded in para. 13 of the judgment of the High Court judge. However, as noted in para. 32 above, these were not served in advance on the DPP who appears to have been under the impression that the matter had not been addressed at all by Mr. G. in his High Court submissions. This is reflected in ground 3 of her notice of appeal where the DPP contended that the alleged failure to give reasons was not a ground expressly included in the statement of grounds and it is also alleged that Mr. G. did not argue the point at the hearing of the matter in the High Court. Furthermore, in his grounds of opposition in this Court, as set out in his respondent's notice, Mr. G. did not allege that he had argued the matter in the High Court. Instead, in para. 3 of his respondent's notice, he contended that the ground had been implicitly included in para. 5A(ii). However, he did not explain how it could be said to have been implicitly included. Nor did he do so at the hearing of this appeal. That is unsurprising in circumstances where, as noted above, there is nothing in para. 5A(ii) of the statement of grounds which raises any issue about adequacy of reasons. As a consequence, Mr. G. was not entitled to pursue that issue in his submissions (whether oral or written) in the High Court.
56. Even if the reasons issue had been debated in the course of the High Court hearing, that would not alter the position. That was made abundantly clear by Murray J. in para. 43 of his judgment in Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála quoted in para. 50 above.
57. It follows that the appeal of the DPP on this ground must be allowed.
The remaining grounds of appeal
58. Having regard to the terms of paras. 32 to 37 of the judgment of the High Court, it appears that the High Court judge intended to base his decision solely on the grounds that the ruling of the District Court judge does not contain adequate reasons. However, as noted in para. 34 above, the High Court judge went further. In para. 29 of his judgment, he held that the essence of the decision given by the District Court judge was to the effect that "because the applicant is facing prosecution by the gardaí against whom he wishes to issue summonses, his application was, therefore ipso facto premature and an abuse of process" (emphasis added). This clearly suggests that the finding of abuse of process by the District Court judge was based solely on the fact that Mr. G. was facing prosecution by the members of An Garda Síochána whom he wished to prosecute. Had the District Court judge made a finding purely on that basis, it might suggest that the initiation of such a prosecution, without more, was sufficient to constitute an abuse of process. Had the District Court judge made a finding to that effect it would open his decision up to argument of the type made in para. 5A(ii) of the statement of grounds as to whether his decision complied with the principles established in Kelly v Ryan.
59. As further noted in para. 34 above, the High Court judge also went so far as to hold, in para. 24 of his judgment, that the information provided by Mr. G. in this case contained prima facie evidence of the necessary elements required to ground the offences alleged against the members of An Garda Síochána. That was not an issue that was addressed in the finding of the District Court judge. It was unnecessary to do so in circumstances where he found that Mr. G.'s proposed prosecutions constituted an abuse of process.
60. Both of these findings are relevant to the additional grounds of appeal identified in para. 37 above (i.e. the additional grounds over and above the ground relating to adequacy of reasons). In addition, the finding in relation to the essence of the judgment of the District Court is relevant to the sole ground on which Mr. G. was given leave to seek judicial review. In these circumstances, I believe that it is appropriate that I should address these additional grounds of appeal in this judgment.
The finding made in paragraph 29 of the High Court judge
61. As noted in para. 34 above, the High Court judge stated, in para. 29 of his judgment, that the essence of the decision of the District Court judge revolved around the proposition that, because Mr. G. was facing prosecution by the gardaí against whom he wished to issue summonses, "his application was, therefore, ipso facto premature and an abuse of process" (emphasis added). That finding clearly suggests that the existence of the pending prosecution against Mr. G. was the sole basis for the conclusion reached by the District Court judge that Mr. G.'s proposed prosecutions were an abuse of process.
62. I believe that this finding by the High Court judge is based on a misreading of the decision of the District Court judge. While it is true that, in giving his reasons for refusing the application, the District Court judge expressly referred to the pending proceedings against Mr. G., I do not believe that it is right to conclude that the District Court judge based his decision solely on the basis that, because Mr. G. was facing prosecution by members of An Garda Síochána against whom he wished to issue summonses, his application was ipso facto an abuse of process. As I have sought to emphasise in para. 25 above, the ruling of the District Court judge must not be read in isolation. It requires to be read in light of the contents of the draft summonses and informations presented by Mr. G. to the District Court in advance of the hearing of the application which the District Court judge stressed, in his ruling, that he had fully considered.
63. Thus, in the present case, one has to consider not only the text of the ruling given by the District Court judge but the entire proceedings before the District Court including the documents which Mr. G. had submitted in advance to the District Court and which (as the transcript makes very clear) the District Judge had read prior to the hearing of the application. One also has to keep in mind the Kelly v. Ryan test for abuse of process in this context and the fact that, as noted in para. 7 above, Mr. G. had himself referred the District Court to that authority in his email of 5th March 2021. Mr. G. was therefore aware of the test. It follows that, when the judge ruled that the applications constituted an abuse of process, this meant that the judge had concluded, on the basis of "all that has been written and ... said", that Mr. G. did not have a genuine desire to invoke the criminal process. Given Mr. G.'s familiarity with the decision in Kelly v. Ryan, it is reasonable to conclude that he should also have understood that this was the basis for the finding of abuse of process. A finding to that effect seems to me to have been one that was plainly open to the District Court judge on the basis of the documents presented by Mr. G. in advance of making his application under s. 10 of the 1851 Act. A consideration of those documents suggests that a bona fide desire to invoke the criminal process was not a material element of his motivation for prosecuting the members of An Garda Síochána in question.
64. There are a number of features of the material presented by Mr. G. to the District Court that underscore that conclusion. In the first place, it is clear from the draft summonses and the underlying informations that the prosecutions which Mr. G. wished to commence in February and March 2021 had their origin in the incidents which occurred in Liffey Valley Shopping Centre in August 2019 and which were already the subject of prosecutions against Mr. G. which had been before the District Court since 11th September 2019 and which had previously been listed for hearing on 2nd December 2020. While it was recognised in Kelly v. Ryan that animosity on the part of a private prosecutor against the party sought to be prosecuted will not necessarily render the prosecution abusive, Mr. G.'s proposed prosecutions had all the hallmarks of an act of retaliation for the prosecutions already pending against him rather than a genuine attempt to invoke the criminal process. On reading the material presented by Mr. G. to the District Court, one is immediately struck that the applications were not brought forward at a time more proximate to the events of August 2019. It is striking that, when these applications were made on 10th March 2021, not only was this 18 months after the incident in the Liffey Valley Shopping Centre but it was 12 months after the first hearing date in March 2020 (which had to be postponed because of the COVID-19 pandemic). It was four months after the hearing date in December 2020 which had to be aborted and it was four months before the scheduled hearing date in July 2021 (which had been fixed following the abortive hearing in December 2020 when Mr. G. did not attend). The timing of the applications strongly suggests that his motivation was to strike back at those involved in the prosecution against him rather than any genuine desire to invoke the criminal process.
65. The tactical nature of Mr. G's applications under s. 10 of the 1851 Act is also evident from the way in which he has subsequently described them in the proceedings before the High Court. As noted by the High Court judge in para. 13 of his judgment, Mr. G. submitted in the course of the High Court hearing that "the summonses which he wished to issue against the gardaí, were more in the nature of a counterclaim that would be brought by a defendant in a civil action." (emphasis added). This is consistent with the written submissions delivered by Mr. G. on the morning of the hearing in July 2024. On p. 10 of those submissions, he drew a parallel with civil proceedings and submitted that, in civil proceedings, the existence of a counterclaim "has never been seen as an abuse of process". Given that this submission long post-dates the decision of the District Judge in this case, it cannot be taken into account in considering the legality of that decision. But it does illustrate Mr. G.'s mistaken belief that a criminal prosecution can, properly, be deployed for tactical purposes.
66. A second very striking feature of the documents submitted by Mr. G. is the casual way in which he believed that he could magically extend the 18-month limitation period for the making of his application (which he mistakenly believed was applicable) by simply adding some new allegation (no matter how inconsequential) to the information which happened to occur within an 18-month period prior to the date of making his application. An obvious example is the addition of the reference in the information described in para. 8 above to the allegation that he had telephoned Ronanstown Garda Station on 26th August 2019 to request an explanation for having to sign a recognizance on the previous day which gave a former address rather than his then current address. That allegation was made at a time when he hoped to make an application to the District Court on 25th February 2021 (which would have been the last day of an 18-month period commencing on 26th August 2019). As noted in para. 9 above, that was plainly an attempt to get around the fact that his first application was outside the 18-month limitation period which he believed was applicable. The same casual approach is evident in his email to the District Court office on 9th March 2021 suggesting that he would add a new allegation to his complaint to circumvent the limitation period. This was not an approach that suggested that Mr. G. had a genuine desire to invoke the criminal process.
67. Third, some of the allegations made by Mr. G. were manifestly unfounded on the basis of the material contained in the informations. In this context, it should be noted that the High Court judge appears to have proceeded on the basis that the only alleged offences in issue were those of assault and false imprisonment. This appears from what he said in both para. 1 and para. 24 of his judgment. However, Mr. G. also included a number of other alleged offences without providing any detail in his informations dealing with the individual elements of the alleged offences in question. For example, in the case of the arresting garda, one of the proposed summonses alleged that he had committed an offence of making gains or causing loss by deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001. Yet, the relevant information accompanying that summons contained no material whatever that could be said to be relevant to that very serious complaint which is an indictable offence under s. 6(2) of that Act punishable by up to 5 years imprisonment. This plainly suggested that Mr. G. was prepared to put forward wholly unsustainable complaints of a very serious nature without any material to support them. Again, this does not suggest any genuine desire to invoke the criminal process. Instead, it strongly suggests that Mr. G. was intent on using the prosecutions for tactical reasons and that, for that purpose, he was prepared to pursue a fantastical allegation of this kind.
68. Taken together, the features outlined in paras. 64, 66 and 67 above, provide a clear basis on which to conclude that the proposed prosecutions at the suit of Mr. G. were not motivated by a bona fide intention to invoke the criminal process. Accordingly, there was ample material to entitle the District Court judge, in the very particular circumstances of this case, to hold that the proposed prosecutions at the suit of Mr. G. constituted an abuse of process. As a consequence, there is no basis to suggest that the decision of the District Court judge was contrary to the principles established in Kelly v. Ryan. In turn, it follows that the case made in para. 5A(ii) of Mr. G's statement of grounds must fail and the finding made in para. 29 of the judgment of the High Court judge must be set aside.
The finding made in paragraph 24 of the judgment of the High Court judge
69. As noted in para. 34 above, the High Court judge, also observed, in para. 24 of his judgment, that the informations presented by Mr. G. to the District Court contained prima facie evidence of the necessary elements required to ground the offences alleged against the members of An Garda Síochána "being assault and false imprisonment". I suspect that the High Court judge may not have intended to go so far as to make a finding to that effect. However, para. 24, on its face, contains such a finding and one of the grounds of appeal on the part of the DPP is that the High Court judge erred in law and in fact in so finding. In those circumstances, it is necessary to address it in this judgment.
70. In my view, it was not necessary for the High Court judge to make this finding. As I have previously mentioned, the District Court judge did not address the issue in his ruling. It was unnecessary for him to do so in circumstances where he concluded that Mr. G.'s application should be refused on the ground of abuse of process. Furthermore, for the reasons outlined in para. 67 above, it is clear that not all of informations presented by Mr. G. addressed each element of the relevant offences. Contrary to the understanding of the High Court judge, the offences alleged were not confined to assault and false imprisonment. As I have already outlined, they also included additional allegations including withholding of information contrary to s. 19 of the Criminal Justice Act 2011 and making gain or causing loss by deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001. Taking the latter as an example, it is clear, for all of the reasons outlined in para. 67 above, that the informations presented by Mr. G. did not address every element of that alleged offence and provided no detail to enable a court to conclude that the prima facie requirement was satisfied. In those circumstances, it seems to me that the DPP is entitled to succeed on this ground and that the finding made in para. 24 of the judgment of the High Court should be set aside.
Conclusion
71. For all of the reasons discussed in paras. 45 to 57 above, I am of the view that it was not open to the High Court judge to hold that the decision of the District Court judge was vitiated by an absence of sufficient reasons to explain his decision. In those circumstances, the appeal of the DPP must be allowed on that ground and the decision of the High Court set aside.
72. Furthermore, for all of the reasons discussed in paras. 61 to 68 above, I am also of the view that, in the particular circumstances of this case, there was ample material before the District Court judge to entitle him, in accordance with the principles established in Kelly v. Ryan, to reach the view that the proposed prosecutions at the suit of Mr. G. constituted an abuse of process. It follows that the relief claimed by Mr. G. in para. 5A(ii) of his statement of grounds should be refused and the finding made in para. 29 of the judgment of the High Court judge should be set aside. In turn, it follows that Mr. G.'s application for judicial review should be dismissed.
73. In addition, for all of the reasons discussed in paras. 69 to 70 above, the finding made in para. 24 of the judgment of the High Court judge should also be set aside.
74. In light of these conclusions, my preliminary view is that the DPP, having been wholly successful in this appeal, should be entitled to an order for costs against Mr. G. in respect both of this appeal and the proceedings in the High Court. If Mr. G. wishes to contend for a different form of order, he will need to deliver written submissions of not more than 1,500 words to the solicitor for the DPP (copied to the Court) within 14 days from the date of electronic delivery of this judgment, in which case, the DPP will have a similar period of 14 days from the date of delivery of those submissions in which to deliver replying submissions following which the Court will give a ruling on costs electronically.
75. As this judgment is being delivered electronically, Allen and Hyland JJ. have authorised me to record that they agree with it and with the orders proposed above.
Result: Appeal allowed.