High Court of Ireland Decisions

1. This matter comes before the Court pursuant to Order of Geoghegan J., dated the 10th May 1999 whereby the Applicant was given leave to apply for an Order of Certiorari and Prohibition against the Respondents.

2. The nature of the relief sought can best be appreciated by a short recite of the facts.

3. The Applicant is the holder of an ordinary seven day licence, a full restaurant licence and a public dance hall licence in respect of premises known as Liberties Nightclub, Buncrana, Co. Donegal. These licenses have been the subject matter of objections raised by residents from time to time and the first named Respondent decided, apparently, that he would deal with these problems by granting the Applicant a public dance hall licence in the month of February 1998 on condition that an independent observer namely . Hugh O’Hara an ex member of An Garda Siochana was appointed to supervise the manner in which the Plaintiffs were conducted and to furnish reports for the information of Judge O’Donnell whenever these were required. The Applicant consented to the appointment of Mr. O’Hara as also did the objectors. Another condition was attached to the granting of that licence and that was that Mr. Desmond Walsh, another retired member of An Garda Siochana, was to be appointed to take charge of security outside the premises. This public dance licence granted in February 1998 was on a trial basis until May of

4. On the 10th September 1998 the Applicant had four applications before the Court namely a renewal of his ordinary seven day public house licence, an application for the renewal of his public dance hall licence, an application for a renewal of his restaurant certificate and an application for a special exemption. In addition to these applications there were six prosecutions before the Court against the Applicant alleging breaches of the liquor licensing laws on various dates between May and July 1998. Each prosecution was initiated by way of summonses. These matters were adjourned to 12th November 1998.

5. The dates upon which the alleged offences are alleged to have occurred are as follows:

6. On that date I am satisfied that the Applicant’s solicitor Mr. Dorian subjected the Guards to a thorough cross examination.

7. I am satisfied that Mr. Dorian, on behalf of the Applicant tendered a plea in respect of three of the six prosecutions before the Court namely B, C and D referred to above. In the other three cases Mr. Dorian relied on the fact that the Gardaí involved in these cases were not in uniform, by way of defence. In those cases no plea was

8. In one case that was contested namely, Case A above the summons was heard and the Applicant was found guilty and convicted of the offence. The other two cases having been adjourned were subsequently met by pleas of guilty by the Accused. These two cases stand adjourned at the present time.

9. The reliefs which the Applicant seeks are firstly an Order of Prohibition to prevent the First Named Respondent from dealing with the two outstanding cases and secondly an Order of Certiorari seeking to set aside the Orders already made and the penalties imposed in the four cases which have been dealt with by the First Named Respondent.

10. The basis upon which these reliefs are sought is that it is alleged that the First Named Respondent took into account matters other than the evidence before him namely the report of Mr. O’Hara.

11. There is an issue of fact on the extent to which the First Named Respondent read and considered this report. He has said, and I unreservedly accept, that he read no more than part of it and that part was not of relevance. The case is made on behalf of the Applicant on the basis that he did read the report and in any case even if he did not that the manner in which the prosecution was dealt with gave the appearance of having read the report and being influenced by matters other than the evidence before the court.

12. On behalf of the Respondents it is submitted by Counsel, Miss Egan that the appointment of Mr. O’Hara was made certainly without objection and probably with the consent of the Solicitor for the Applicant and accordingly it is now not available to the Applicant to object to the use of the report at the hearing.

13. I am satisfied that at the hearing of a prosecution there is a clear obligation upon the Trial Judge to not only confine his considerations to the matters actually before the court but to ensure that no reason is given to promote a belief that matters extraneous to the actual prosecution are being taken into account in reaching his decision. To allow an Accused person genuinely to believe that the report of a third party is being used for the purpose of determining the issues before the court where that third party does not give evidence and is not available for cross examination constitutes objective bias and renders the procedures flawed.

14. In these circumstances the decisions which have been reached in the series of cases are flawed and must be set aside.

15. There have been pleas of guilty in offence A and the two offences which are awaiting sentence that is cases 2 and 7. These pleas of

16. It follows from the view that I take of this case that it would be improper for the First Named Defendant to consider the penalty to be imposed on the two outstanding cases.

17. Accordingly I will grant the Applicant the reliefs sought.

18. The cases will be sent back to the District Court for further hearing and/or imposition of penalty.