High Court of Ireland Decisions

Judgment Title: Mac Cárthaigh -v- Éire & Ors

Neutral Citation: [2008] IEHC 158


High Court Record Number: 2007 611 JR

Date of Delivery: 30 May 2008

Court: High Court

IDIR
RUAIRI MAC CÁRTHAIGH

JUDGMENT of Mr. Justice Charleton delivered on the 30th day of May, 2008
1. The applicant was given leave ex parte to issue judicial review proceedings by Clarke J. on 27 May 2007. He claims an order restraining his prosecution on a charge related to the drunken driving legislation of refusing to give a sample of his breath in May 2005. The respondents have brought a motion before the court to dismiss the applicant’s claim by reason of his delay in commencing these proceedings. The applicant claims that the rights which he asserts are of such importance that his delay in bringing this application ought to be excused. When the ex parte application was made to Clarke J., in respect of the rights asserted here, no mention was made in the affidavit of the applicant dealing with the issue of delay. The applicant asserts that the burden borne by the respondents in dismissing the case now is a heavy one whereby they must show that the High Court should never have granted leave for him to commence these judicial review proceedings. The respondents, on the other hand, assert that since the issue of delay was never considered at the ex parte stage, the matter should now be considered afresh by this Court, as if this application were being made for the first time.
2. In order to commence a judicial review application under O. 84 of the Rules of the Superior Courts, an applicant need only show an arguable ground for seeking the remedy; G v. D.P.P. [1994] 1 I.R. 374. This has been rightly referred to as a modest standard; Denham J. at p 381. It is one which contrasts markedly with that of demonstrating substantial grounds which applies under the Planning and Development Act 2000; Keane v. An Bord Pleanala [1997] 1 I.R. 184. The standard requiring an applicant for judicial review to establish substantial grounds, before leave to bring a judicial review application could be granted by the court, was first introduced by the Local Government (Planning and Development) Act 1992. This test of substantial grounds requires an applicant to show an argument to the court that is not trivial or tenuous but which is weighty. This test has been reproduced, since that time, in other legislation, most notably in challenges to decisions in respect of those who have failed before the statutory bodies under the Refugee Act 1996, to establish that they are refugees, and in respect of other applications under the Immigration Act 1999; see the Illegal Immigrants (Trafficking) Act 2000, section 5.
3. The test for the granting of leave to commence judicial review proceedings is on the lesser standard in this case; whether the applicant can show, if the facts asserted are accurate, that his submission of law in support of the remedy could arguably be correct. It is only appropriate for the High Court, at leave stage, to consider the affidavit of an applicant as correct and then to consider whether the argument advanced on the law may potentially be correct; O’Reilly v. Judge John Cassidy [1995] 1 I.L.R.M. 306 at 308. It follows that it is not proper at leave stage for the High Court to express any view as to whether the grounds advanced are strong or weak, provided they are arguable.
4. Prior to the initiation of the new Rules of the Superior Courts and, in particular, O. 84, which deals with applications for judicial review, an applicant seeking the remedy of certiorari, prohibition or mandamus had, in practice, to establish a case to a higher standard than that which now prevails. That was because under the previous Rules of the Superior Courts, the court would grant a conditional order in respect of these remedies, as opposed to merely giving leave to commence an application, as is now the case under O. 84 r.20 of the current rules.
5. The granting of leave to commence a judicial review application can have a profound effects on the administration of justice. If the issue, for instance, is as to the validity of a decision by the Director of Public Prosecutions to proceed in prosecuting an old case of rape or sexual abuse, the matter may take years to be disposed of. In consequence, the right of the community to have a reasonably speedy disposal of a criminal prosecution can be markedly interfered with. Since the issue in such delay cases is that of delay itself, it is a proceeding which adds to the wrong complained of, though sometimes justifiably. Where the issue is one in a recent case as to whether an issue about a witness or an exhibit and the effect of this issue on a fair trial, the effective result can be the delay of justice over many years. Article 6 of the European Convention on Human Rights provides for a fair and impartial trial within a reasonable period. This obligation is cast on the State, on administrative officials and on those who seek to prevent litigation taking place; see s. 3 of the European Convention on Human Rights Act 2003.
6. Those approaching the issue of judicial review should therefore do so in a serious way which is cognisant of the effect which the remedy can have on the ordinary administration of justice. An applicant is required not to misrepresent the facts on which he or she seeks to rely. No issue arises in this respect against this applicant. Further, an applicant is required to move with expedition. Under O. 84, r. 21(1):-
“Is go pras a dhéanfar iarratas ar chead chun athbhreithniú breithiúnach a iarraidh agus, in aon chás, laistigh de thrí mhí ón dáta a d’éirigh na forais le haghaidh an iarratais den chéad uair, nó laistigh de shé mhí nuair is certiorari an faoiseamh a lorgaítear, mura dóigh leis an gCúirt cúis mhaith a bheith ann chun an tréímhse a fhadú ar laistigh di a dhéanfar an t-iarratas.”
7. Even within the time limits set out, it is clearly established that a delay which has the effect of undermining third party rights can be a ground for refusing judicial review at the substantive stage. In addition, the fact that there has been delay can be a ground, at the substantive stage, for refusing the remedy sought on the basis of the discretion of the court to refuse a judicial review remedy if it does not meet the justice of the case or on the grounds of misconduct.
8. The matter of extending the time within which to bring a judicial review application because of “cúis mhaith a bheith ann chun an tréímhse a fhadú” was comprehensively reviewed by Costello J., in O’Donnell v. Dún Laoghaire Corporation [1991] I.L.R.M. 301. It seems to me that there are good reasons why the Rules Committee decided that the administration of criminal justice should be protected against considerable delay. The common good requires that the administration of criminal business should be conducted with dispatch. The distress which the commission of a crime causes, and the fact that a crime is an attack on the community, requires applicants to move with the utmost dispatch if the effect of their actions is to delay a criminal trial. Often the issue is as to whether a fair trial is possible in the circumstances alleged by an applicant. In that regard, the trial judge is as much bound to administer justice in accordance with constitutional justice as is this court to declare a breach, or potential breach, of the rights of an accused. In making this observation, I am mindful that persons accused of crime are presumed to be innocent. The test as to whether the prosecution have sufficient proof to show beyond reasonable doubt that an accused person committed a crime is of the essence of the conduct of criminal business once the case has been commenced.
9. This application was to prohibit this trial was brought two years after the alleged offence. As to whether there is good reason for extending the time within which to bring judicial review depends on the objective circumstances before the court. An applicant must show that there are both reasons which explain why the delay has occurred and reasons which show that there is a justifiable excuse for the occurrence of the delay. It follows from the decision of Costello J. in the Dún Laoghaire Corporation case that the longer the delay is before commencing judicial review proceedings, the heavier is the onus which rests on an applicant in both explaining the delay and affording an excuse.
10. It is central to the argument of the applicant that since he has a very strong case, that his delay should be excused. I turn therefore to the facts.
11. The applicant is an Irish speaker who received his schooling through our national language and attempts, to the best of his ability, to use the language in his everyday life and in his dealings with State authorities. In addition, he has asserted his language rights and has achieved some success, in that regard, before the courts. On 5th May, 2005, more than three years ago, the applicant was stopped while driving a motor vehicle near Tullamore. After observation, he was brought by Garda Daniel O’Connor to Tullamore Garda Station where a statutory demand was made of him for a sample of his breath. This all occurred in the context of s. 13 of the Road Traffic Act 1994, as amended, and s. 49(8) of the Road Traffic Act 1961, as amended. In short form, and in the result, the applicant has been charged with failing to give a sample of his breath for the purpose of testing as to drunken driving, having been lawfully required so to do by members of An Garda Síochána. The issues which will arise at that trial concern the validity of the requirements made of the applicant and the facts surrounding his refusal, if there ever was a refusal. It may be the case that some argument can be validly advanced as to the validity of the summons based upon the Rules of the District Court, but I do not know.
12. A summons was issued, in the Irish language, against the applicant requiring him to appear before Tullamore District Court on 21st December, 2005. The applicant’s solicitors requested copies of the relevant witness statements in Irish, and they got them. Then the applicant’s solicitors then requested the same statement in English. A hearing date was set before Judge McGuinness, on 20th November, 2006. The applicant claimed to be sick on that day and did not appear in court. A medical certificate, in that regard, had been left in the District Court office prior to the commencement of the case. Upon the execution of a bench warrant on 20th December, 2006, another trial date was set for 29th May, 2007. On that day the applicant, for the first time, announced to the court that he wished to apply for judicial review and that this had been moved before the High Court. The delay, in this case, was one of two years from the date of the offence and over eighteen months from the date of the issue of the summons.
13. This delay is explained by the applicant on the basis that in the days immediately before the second trial date fixed in respect of his case, in May 2007, he had changed solicitors for the purpose of asserting his rights to have Irish translations in respect of some twenty amendments to the District Court Rules. A list of the relevant amendments, by way of statutory instrument, is given in para. 6 of the affidavit of the applicant’s solicitor.
14. What was absent from any argument adduced before this Court was how any of these rules could have been of any real relevance to the case which the applicant wished to conduct in Irish, and was constitutionally so entitled. Court cases can be a matter of technicality but they are, more often, the application of law to a set of facts as found by the judge. Because this list of statutory instruments was not available in Irish at that time does not mean that there could not have been a constitutional trial in Irish of the applicant. The applicant is entitled to the relevant law in Irish in respect of a charge; Ó Beoláin v. Fahy [2001] 2 IR 279. The applicant is entitled to other rights as well under the Official Languages Act 2003; and see Ó Gríbín v An Chomhairle Mhúinteoireachta [2007] 454. The applicant has an obligation, which is of the utmost importance, to commence his proceedings promptly and this he has not done. In advancing an argument that his right to conduct a trial in Irish significantly outweighs any delay that has occurred in this case, I am obliged to see whether any argument has been advanced which shows the relevance in a material, as opposed to a tangential sense, of the translated statutory instruments the applicant required from the respondents. I can find none at all.
15. The applicant has correctly argued that in seeking to overturn leave given to commence judicial review proceedings, a respondent bears a heavy burden. It seems to me that I should not consider that principle in this context because it is not applicable. Clarke J., never extended the time for the commencement of these judicial review proceedings when he granted leave at the ex parte stage. No material was put before him whereby the long delay in this case could be explained or excused. As the material is now before me I am entitled to consider this application de novo as if I were now considering extending the time for commencing a judicial review proceedings on an application ex parte. In reality that is what I am doing. In so doing I am looking to the issue of the length of the delay and the absence of any explanation and of any excusing circumstances.
16. The delay has not been explained. There is nothing in the request by the applicant of the respondents for the statutory instruments sought which shows their relevance to this case. There is nothing to explain why the delay could not have been ameliorated by the request being made earlier. The fact that the applicant first sent in a sick certificate on the date of his first trial, scheduled to be heard in Irish, and then commenced a judicial review proceeding during the month of the second trial date set in respect of this matter, again scheduled to be heard in Irish, in no way affords a justifiable excuse for the delay in this case.
17. I would add that were this to be the substantive hearing of the matter, I would dismiss the application on the basis of my discretion to refuse a final order because of the culpable delay in this case.