Supreme Court dismisses appeal against refusal to grant judicial review for bank records order in criminal forgery case.

THE SUPREME COURT

Record No. 288/00

Keane C.J.

Hardiman J.

Fennelly J.

BETWEEN

Patrick Blanchfield

Applicant/Appellant

and

Judge William Harnett, The Director of Public Prosecutions and His Honour Judge C. Kelly

Respondents

JUDGMENT delivered the 16th day of May, 2002, by FENNELLY J.

The Bankers’ Books Evidence Acts, 1879 to 1989 provide for the admission of bank records as evidence of their contents in legal

proceedings. Section 7 of the Act of 1979 provides:

“On the application of any party to a legal proceeding a court or judge may order that such party be at liberty to

inspect and take copies of any entries in a banker’s book for any of the purposes of such proceedings. An order under

this section may be made either with or without summoning the bank or any other party, and shall be served on the

bank three clear days before the same is to be obeyed., unless the court or judge otherwise directs.”

Section 10 of that Act provides:

"The expression "legal proceeding" means any civil or criminal proceeding or inquiry in which evidence is or may be

given, and includes an arbitration;

The expression "the court" means the court, judge, arbitrator, persons or person before whom a legal proceeding is held

or taken;

The expression "a judge" means with respect to England a judge of the High Court of Justice, and with respect to

Scotland a lord ordinary of the Outer House of the Court of Session, and with respect to Ireland a judge of the High

Court of Justice in Ireland;"

Other sections of that Act, as amended, regulate the procedures for proof of entries in bankers’ books.

Orders under the Acts may be made by the Master of the High Court (Order 63, rule 1(17). There is no equivalent rule for the

Circuit Court or the District Court.

Until November 1994, the appellant carried on a financial consultancy business under the name of Abbey Financial Services in

Kilkenny. In the period from November 1994, a large number of complaints were made to the gardaí of financial irregularities

allegedly resulting in significant losses to more than thirty individuals. The first of these related to a single cheque and was

made to Detective Garda J Seymour in November 1994.

On 6th December 1994, the first-named respondent (“the District Judge”) issued a warrant for the arrest of the Appellant on a

charge of forging a cheque drawn on the Ulster Bank at College Green, Dublin, and payable to one Edward Walsh. This was done

on foot of an information sworn by Detective Garda J Seymour. On 19th December 1994, the appellant was arrested, brought

before the District Court and charged with the offence of forgery. On a number of dates between December 1994 and March

1995, the District Judge made about twenty orders pursuant to Bankers’ Books Evidence Acts, all on the application of

Detective Garda J Seymour, permitting the latter to inspect and take copies of entries relating to accounts of or relating to the

appellant in a wide number of banks and building societies. The first of these orders was made on 6th December 1994, the date

of issue of the warrant and, thus, before the appellant was charged. All were entitled as being made in proceedings between

the Director of Public Prosecutions and the appellant.

The appellant appeared initially in the District Court in Kilmainham and then on 29th December 1994 in Kilkenny and the 22nd

December 1994 in Waterford, when he was released on bail. He agreed to attend for interview at Kilkenny Garda Station on 27th

December 1994 and continued to do so until May 1995. From December 1994 to October 1995, the proceedings, still consisting

of the single charge of forgery, in the District Court were adjourned from month to month, in the face of objections on behalf of

the appellant.

During this period, Detective Garda J Seymour was engaged in an investigation significantly broader than that related to the

single offence of forgery, with which the appellant had already been charged. The appellant accepts that he was aware of this.

In total, some thirty nine complaints had been made regarding the appellant’s conduct of his business. The total sums involved

were of the order of one million pounds. Detective Garda J Seymour reported to the DPP in June 1995, though information and

documentation from a number of bank officials was not yet available. As a result of the directions of the DPP a large number of

additional statements had to be obtained. On 24th October 1995, the initial single charge of forgery was withdrawn with, it is

said, liberty to re-enter.

In late January or early February 1996, Detective Garda J Seymour was instructed by the Director of Public Prosecutions to

bring further charges against the appellant. It was necessary, however, for that purpose, to take further statements from three

bank officials, who, in the event, declined to make statements until they had obtained legal advice. The appellant was not

newly charged until 12th September. Detective Garda J Seymour was in touch with the appellant in August 1996 when the final

drafts of the new charges was being completed and asked him to present himself at Kilkenny District Court on 3rd September.

The appellant asked that the matter be dealt with in Waterford rather than Kilkenny. It was agreed that the appellant would

appear in Waterford on 3rd September, but, because of the commitments of the appellant’s solicitor, this had to be postponed

to 12th September. He was charged on that date with eight offences of fraudulent conversion and forgery contrary to the

Larceny Act 1916 and the Forgery Act, 1913 and the Book of Evidence was served. The appellant was sent forward for trial to

the Kilkenny Circuit Court. On the same date also, the District Judge made four further orders under the Bankers Books Evidence

Acts. In respect of the period up to September 1996, Detective Garda J Seymour has sworn that “given the complexity of the

investigation and the number of statements which had to be obtained, the matter was pursued with all due expedition.”

The proceedings were transferred to Dublin Circuit Court in April 1997. The appellant was arraigned in July 1997 and a trial date

fixed for November 1997. Following extensive correspondence in which the appellant’s solicitors required the production of

additional documents a large volume of documents was furnished in November 1997 and the trial date was adjourned to March

1998. An order for the production of further documents was made in February 1998. More than 1,000 pages of additional

documents were produced in April 1998. The trial was again adjourned to July 1998, when difficulty about a witness for the

state led to it being adjourned to October 1998.

On 14th October 1998, the appellant was granted leave by Geoghegan J. in the High Court to apply for judicial review in the

form of the following reliefs:

"(i) An Order of Certiorari by way of an application for judicial review of the Orders of the first named Respondent made

on the 12th day of December 1994 the 3rd January the 10th January the 24th January the 8th February the 14th

February the 7th March 1995 and the 12th September 1996 under the Bankers Books Evidence Act 1879 as amended by

the Bankers Books Evidence (Amendment) Act 1959 The Central Bank Act 1989 and the Building Societies Act 1989

(ii) An Order of Prohibition by way of an application for judicial review directed to the second and third named

Respondents prohibiting them from proceeding with the trial of the Applicant"

The reference to 12th December should read 6th December. The grounds can be summed up as follows so far as the Bankers’

Books Evidence Act orders are concerned:

The orders do not cite the section on which they are based and are thus bad on their face

They are too broad

There is no evidence that the District Judge gave proper consideration to the matters in issue

Some or all of them were made either when there was no proceeding in existence or were broader than any existing

proceeding or charge

They were made without notice to the appellant

Insofar as they may have been made by virtue of the amendment to the Bankers’ Books Evidence Acts by section

131 of the Central Bank Act, 1989, the application was not made by a “member of the Garda Síochána not below

the rank of Superintendent” as required by that provision.

The last ground was added by an amending order to the original order granting leave. The section in question introduces a new

section 7A to the Bankers’ Books Evidence Acts permitting orders to be made to assist the investigation of whether an

indictable offence has been committed, i.e., no proceeding needs to be in being. However, the respondents have said at all

times that the orders were, in fact, made by virtue of section 7 of the Bankers’ Books Evidence Act, 1879 only. Thus, though

Detective Garda J Seymour is not a Superintendent, that is not relevant. It is common ground that there must be a legal

proceeding in being to found jurisdiction to make an order.

The claim for an order of prohibition is based on an allegation of culpable delay by the prosecuting authorities which “must be

presumed to be prejudicial to” the appellant.

The judicial review proceedings came before O’Neill J in the High Court. It was submitted by the appellant and apparently

accepted that the Bankers Books Evidence Act orders could be divided into three categories:

Two orders (refs 7 and 14) which were admittedly relevant to the initial forgery charge; the first is that dated 6th

December 1994;

19 other orders made in January to March 1995;

4 orders made on 12th September 1996.

The learned trial judge recorded that Mr Collins, on behalf of the respondents, accepted that there were no proceedings in

being in the District Court until a charge was laid and that all nineteen orders in the second category were made without

jurisdiction.

Mr Gerard Hogan S.C., on behalf of the appellant argued the grounds mentioned. Specifically, he argued that the orders were in

the nature of orders for discovery and that the appellant should have been put on notice (Haughey and others v Mr Justice

Moriarty and others, Supreme Court, unreported 28th July 1998). It was necessary for the High Court to quash the orders. The

Circuit Court did not possess a judicial review jurisdiction and could not exercise one in a criminal trial. Certain cases, mentioned

below, suggesting that the High Court would not quash orders which were spent were wrongly decided.

Mr Collins’ principal submission was that the orders, having been made and acted upon, were now spent, that the sole purpose

of the application for judicial review was to secure the exclusion of the evidence of entries from Bankers Books at the trial of

the appellant, that the trial judge would have jurisdiction to admit that evidence even if the orders were invalid, furthermore

that the trial judge would fully possess any jurisdiction to rule on the validity of the orders, where necessary for the purpose of

the trial. Accordingly, it would be futile to quash the orders. The High Court should exercise its discretion to refuse any order of

certiorari. He relied on the two High Court decisions of Hamilton J in Byrne v Grey [1988] I.R. 31 and Berkeley v Edwards [1988]

I.R. 217 for the proposition that the court should quash orders which were spent where the sole object was to secure exclusion

of evidence at a criminal trial; he cited Coughlan v District Justice Patwell [1992] I.L.R.M. 808 (“Patwell”) for the proposition

that the Circuit Court would have any necessary jurisdiction to rule that there was illegality involved in the obtaining of

evidence. Furthermore, the authorities showed that the courts did not favour the interruption of criminal proceedings for the

purpose of facilitating the taking of judicial review proceedings (DPP v Special Criminal Court [1999] I.R. 60).

In effect, the learned trial judge accepted the submissions of the respondents. Firstly, he accepted, on the authority of Patwell,

that the trial court must respect constitutional rights and that evidence obtained unlawfully though without infringement of any

constitutional right, is admissible save where the trial judge exercises his discretion to exclude it. He followed Byrne v Grey and

Berkeley v Edwards. Although those cases concerned search warrants issued by Peace Commissioners, they were similar to the

orders of the District Court involved here. As to the absence of a judicial review jurisdiction in the Circuit Court, he considered

that the “trial judge in a criminal trial has his own exclusive jurisdiction ... [and] it may well be that he may be asked to try an

issue of law for the purpose of adjudicating on the admissibility of evidence which in other circumstances would be more usual

or appropriate for the judicial review jurisdiction of the High Court.” He concluded that the trial judge would have “ample

jurisdiction to deal with all questions related to the legality of these orders.”

In the result, the learned trial judge did not determine any of the issues concerning the validity of the orders.

He also rejected, having regard to the nature of the proceedings, the submission that there had been any such delay as would

prejudice the appellant’s right to a fair trial.

THE APPEAL

The appellant, in his notice of appeal, takes issue with the failure of the learned trial judge to hold that the orders were invalid.

More generally, he complains that he had wrongly followed the two decisions of Hamilton J. in the High Court and that he had in

effect held that the Circuit Court had a judicial review jurisdiction. The appellant does not contest the conclusion of the learned

trial judge regarding the function of the trial judge at a criminal trial to protect the constitutional rights of the accused or the

fact that evidence illegally but not unconstitutionally is admissible, subject to the exercise of the discretion of the trial judge to

exclude it. The appellant also challenges the refusal of the learned trial judge to make an order of prohibition on the ground of

delay. There is a cross appeal only on an issue of costs.

The finding that the appellant did not have an interest in quashing the orders in advance of his trial because their purpose had

been spent was the object of Mr Hogan’s principal submission. This turned on two propositions: firstly, that the validity of the

orders will or may affect the decision of the trial judge on whether to admit the evidence (bank entries) obtained as a result of

the order; secondly, that, insofar as it is necessary to rule on the validity of the Bankers’ Books Evidence Acts orders, the

Circuit Court would need to have a judicial review jurisdiction, which it does not have.

Regarding the first branch, Mr Hogan conceded that the fact of the orders being invalid would not render inadmissible the

evidence obtained. As already noted, there is no appeal from this part of the High Court judgment. Nonetheless, it is implicit

that the appellant would wish to submit to a trial judge that he was compelled to draw some conclusions from such a finding of

the High Court (in this case, the Supreme Court). The case of Barry v Fitzpatrick [1996] 1 I.L.R.M. mentioned by the trial judge

was not, it was contended, relevant. In that case, the Supreme Court declined to quash remand orders which had been made

by the District Court without jurisdiction, because it held that their force was spent. Here the prosecution still defends the

orders. In Barry, the real point was that the issue was moot. At the hearing, Mr Hogan cited McSorley and another v Governor

of Mountjoy Prison [1997] 2 I.R. 258. In that case, the Supreme Court declined to make an order for an inquiry into the

detention of the applicant, a person convicted in the District Court, under Article 40 of the Constitution, where his complaint

related to the irregularities of procedure in the District Court. O’Flaherty J. pointed out “that neither the District Judge nor the

Director of Public Prosecutions was given an opportunity of making a case.” He also cited Keating v Governor of Mountjoy

Prison [1991] 1 I.R. 61, where this Court rejected a submission that the District Court should have inquired into the legality of

the detention of the applicant pursuant to section 4 of the Criminal Justice Act, 1994 and released him. The Court held that the

District Court had no such power, that function being reserved to the High Court pursuant to Article 40 of the Constitution.

With regard to the second branch, Mr Hogan contended that the Circuit Court simply could not rule on the validity of the orders

without being clothed with plenary judicial review jurisdiction. Any antecedent practice or assumption to the contrary and any

view that the Circuit Court could have a collateral jurisdiction was, he contended, an aberration. The function of a trial judge to

rule on the admissibility of evidence could not by a “sort of forensic magnetism” vest in the Circuit Court a judicial review

jurisdiction it did not have. DPP v Special Criminal Court [1999] I.R. 60 was cited for the proposition that judicial review may lie

to quash rulings made in criminal trials.

Mr Hogan relied on the decision of Geoghegan J in the High Court in P.P. v the Director of Public Prosecutions (unreported 15th

October 1999) to support his argument on delay. That was a case where it was alleged that the accused had committed a

number of sexual assaults in 1977, but no complaint had been made to the gardaí until 1995. Geoghegan J found that the

fairness of the applicant’s trial would not have been prejudiced by that delay alone. However, he was highly critical of the

conduct of the investigation by the gardaí thereafter, describing it as “slipshod” and “lackadaisical.” He found it wholly

unacceptable, in particular, that they failed to contact the applicant and interview him. He expressed himself as follows:

“I think that where there has been a long lapse of time as in these prosecutions for sexual offences between the alleged

offences and the date of complaint to the guards, it is of paramount importance, if the accused’s constitutional rights

are to be protected that there be no blameworthy delay on the part of the guards or the D.P.P. If there is such delay,

the Court should not allow the case to proceed and additional prejudice need not be proved.”

Mr Hogan accepted that he could not allege any specific prejudice other than that his client had had the entire matter “hanging

over him.” He said, nonetheless, that there was culpable delay by the gardaí and that, in such a case, he did not have to

allege prejudice.

The respondents, in supporting the High Court decision, argued that the overriding duty of the trial judge at a criminal trial is to

ensure that the accused has a fair trial. It follows that he has power to exclude even admissible evidence, the key question

being whether the interests of justice require that it be admitted. The trial judge is in the best position to make the necessary

assessments. If the appellant contends that the making of an order of certiorari will benefit him in his criminal trial, he is in

effect saying that such an order will at the least influence the trial judge. The correct approach, as appears from cases such as

Clune v the Director of Public Prosecutions [1981] I.L.R.M. 17, is that the superior courts should presume until the contrary is

demonstrated that the proceedings at a criminal trial will be properly and fairly conducted. DPP v Special Criminal Court was,

contrary to the appellant’s submission an authority for the proposition that applications for certiorari in the course of a criminal

trial would be entertained only in the most exceptional circumstances.

The learned trial judge was correct, it was said to rule that it would be futile to quash the orders. The appellant was not

entitled to an order ex debito justitiae (De Róiste v Minister for Defence [2001] 1 I.R. 190).

The delay in this case could not, by any reasonable standards be considered inordinate or inexcusable. The appellant has not

pointed to any specific item of prejudice to demonstrate that he cannot have a fair trial. P.P. -v- the Director of Public

Prosecutions is easily distinguishable.

CONCLUSION

The first point to note about the appeal is that the learned trial judge has not determined whether the orders are valid, even

while recording the effective, and, I think, correct concession by the respondents that the nineteen orders in the second

category were made without jurisdiction. Indeed, it is puzzling that the same view was not taken regarding the order dated 6th

December 1994, which is described in the judgment as “ref. 7” and is in the first category as one admittedly “relevant to the

Walsh cheque,” i.e., the first single forgery charge. That may be so, but the order was made on the date the arrest warrant

was issued and before the appellant was charged.

The learned trial judge did not, however, in relation to the first and third categories rule on any of the grounds of challenge. In

the result, this is not properly a matter before this Court and the Court has been at best partially addressed on the issues.

Nonetheless, the appeal must be approached on the hypothesis that the invalidity of the orders is likely to be established.

The principal issue is that the making of an order of certiorari would be futile because the orders are spent. The orders give

liberty to the State to inspect the banking records of an individual, an absolutely necessary power in the armoury of the legal

process. Indeed, the Bankers’ Books Evidence Acts are as likely to play a role in civil as in criminal proceedings. In the latter

case, orders may function as very important protection for the rights of either prosecution or defence wishing to produce

evidence to a court. Nonetheless, the holder of a bank account has an interest in the question of whether his account details

are to be produced. The records, it is true, belong to the bank. However, the account-holder can normally expect the bank to

maintain confidentiality in relation to his affairs. That seems to me to give him an interest in knowing that orders are properly

and regularly made, even if he has a limited further right to prevent their disclosure. There is not, however, any question of a

constitutional right being involved, nor is that suggested in this case. In DPP v McMahon [1986] I.R. 393, this Court ruled that

the entry by members of the Garda Síochána into licensed premises to investigate whether offences against the Gaming and

Lotteries Act, 1956, had been committed did not “constitute any invasion or infringement of any constitutional right.” I do not

think the machinery of the Bankers’ Books Evidence Acts is any different.

In the present case, the appellant wishes to challenge the orders expressly and solely so as to secure the objective of their

exclusion at his trial. Mr Hogan says, in effect, that he must come first to seek judicial review in the High Court, because the

Circuit Court would not have the requisite jurisdiction to rule that the orders were invalid before entering on the question of his

discretion.

It seems to me that there are two parts to this argument. The first is whether Mr Hogan is correct in his argument of principle,

namely that no such jurisdiction resides in the Circuit Court. The second is whether, assuming that the Circuit Court has such

jurisdiction, the High Court should have exercised its discretion to quash the orders.

It is common ground, of course, that, because the trial judge is under a fundamental obligation to ensure the fairness of the

trial, he has wide powers to rule on the admissibility of evidence and even, in the exercise of his discretion to exclude evidence

which is, in principle, admissible. However, no direct authority has been cited on either side casting light on whether the trial

judge has collateral or incidental power to quash or annul decisions or orders which have facilitated the obtaining of evidence.

This absence of authority may be explained by the comparative modernity of developments in the law which enabled otherwise

relevant and probative evidence to be ruled inadmissible because of the infirmity of the circumstances in which it was obtained.

There is, on the other hand a body of law which suggests that there is no rigid universal rule prohibiting courts from entertaining

such arguments. In the first place, our courts have not taken the view that the modern procedures for judicial review provide

an exclusive remedy for complaints of infringements of public law rights. (see O’Donnell v Dun Laoghaire Corporation [1991]

I.L.R.M. 301). Secondly, there is a body of case law in England, even though in that jurisdiction a stricter view has been taken

in that respect (see O’Reilly v Mackman [1983] 2 AC 237), to the effect that a collateral challenge may be made to an

administrative decision at least where it is raised as a matter of defence and the defendant could not choose his forum. In

Wandsworth London Borough Council v Winder [1985] AC 461, the House of Lords decided a civil case which is of some interest.

The council made decisions by resolution increasing rents for local authority tenants. The defendant disputed the increases and

refused to pay. The council sued him for possession in the County Court. He pleaded by way of defence that the decisions

increasing the rents were made ultra vires. The council applied to strike out this plea as an abuse of the process of the court

and relied on O’Reilly v Mackman. The House of Lords held that it was not an abuse for the defendant to raise such a challenge

without resort to judicial review. There is also a line of cases going back as far as Kruse v Johnson [1898] 2 Q.B. 91 and even

beyond to the effect that justices have jurisdiction to inquire into the validity of bye-laws. These were followed by a Divisional

Court in R. v Reading Crown Court [1988] Q.B. 384. It was there held that the justices should have determined the validity of

bye-laws under which protesters at Greenham Common were charged with offences. Lloyd L.J. said in that case (page 394):

“If the validity of a decision of a local authority is an essential element in the proof of the crime alleged, then I see no

reason why it should not be challenged in the magistrates’ court or the Crown Court as the case may be.”

This line of case law has received approval in this jurisdiction. Listowel Urban District Council v McDonagh [1968] I.R. 312 arose

from a District Court conviction for breach of a local authority prohibition on public health grounds of the erection of temporary

dwellings. The defendant, at the hearing of his appeal in the Circuit Court, wished to challenge the validity of the prohibition

order on the grounds, inter alia, of lack of bona fides. The Circuit Court stated a case to the Supreme Court on the question of

his power to entertain this challenge. O’Dalaigh C.J., with whom Walsh and Fitzgerald JJ agreed, referred to a number of

authorities including Kruse v Johnson and stated at page 318:

“ It was ....... suggested on the complainant’s behalf that the defendant’s challenge could not be made in the criminal

matter, but should be by way of certiorari. It cannot be doubted that certiorari would lie, nor could there be any

question of the right of the defendant to litigate the matter by action in the High Court. But what is there to limit the

defendant to these means of redress and preclude him from raising the matter as part of his defence? The matter

arises directly out of the prosecution and I see no reason in principle why the tribunal which is trying the question of the

contravention should not also try the preliminary issue of the validity of the order alleged to have been contravened. No

question of inconvenience can arise here, such as might be suggested if a prosecution for a contravention of the order

could be brought on indictment before a jury.”

Both the Listowel Urban District Council case and the Wandsworth London Borough Council case were considered in the

judgment of Keane C.J. in Slattery’s Limited v Commissioner of Valuation and his Honour Judge Liam Devalley (Unreported 13th

July 2001). The Court there held that the District Court, in the course of hearing a civil claim for the recovery of rates, and, by

extension the Circuit Court on appeal, could not have jurisdiction to set aside a determination made by the Commissioner of

Valuation as to the amount of remission to which the Applicant was entitled. This was for two reasons: firstly, those courts had

no such jurisdiction; secondly, the Commissioner was not a party. For the latter reason, the two cited cases were

distinguishable.

None of these authorities were opened to the Court in this case. It is not desirable, for that reason, to pronounce conclusively

upon them. It is true that the Slattery’s Limited case adopts a stricter view, but it was not, of course, a criminal case. Keane

C.J., in the judgment which he has just delivered, has further explained the special considerations which affect claims for

recovery of rates. On any view, the argument for the appellant is a far-reaching one. It seeks to establish procedural

exclusivity for judicial review even in the case of criminal trials. It says that the Circuit Court, as a matter of clear principle,

could not consider the validity of the orders. Where it appears that there are well-established cases in which alternative

avenues may be pursued, the Court cannot close its eyes to their existence. It appears, in reality, that there are many

situations in which courts trying criminal charges may inquire into the validity of at least some types of orders or decisions

which bear on the criminal proceedings.

Comforted by the existence of the jurisprudence to which I have referred, I can turn to this case. May the Circuit Court, at the

trial of the appellant, pronounce on the validity of the orders?

The overwhelming responsibility reposed by the law and the constitution on the trial judge is to ensure the fairness of the trial.

An exceptionally important aspect of this function is to adjudicate on the evidence which should be placed before the jury. It is,

in my view, inherent in that function that the trial judge be clothed with the power to judge the validity of legal procedures

taken in order to extract, collect or gather evidence.

In the case of evidence, in particular inculpatory statements, gathered while the accused has been in garda custody, the trial

judge will frequently have to adjudicate on the validity of orders authorising his detention. Analogous considerations may affect

search warrants and other forms of authority for the invasion of the person or property of a suspect.

Where it is alleged that constitutional rights have been infringed, evidence must be excluded unless there are extraordinary

excusatory circumstances (People (Attorney General) v O’Brien 1965 I.R. 142.) If a search warrant is authorised by the District

Court in circumstances of knowing and conscious breach of the constitutional rights of the accused, any evidence gathered on

foot of it will, in the absence of the established exceptional circumstances, be excluded. The trial judge, in such a case, must

necessarily have the power to inquire into and to rule on the validity of such an order of the District Court. Without that power,

he would be inadequately equipped to exercise his constitutional function.

1I do not find any support, in the authorities cited for the proposition that the trial judge at a criminal trial, especially, as Mr

Hogan says, if he be a judge of the Circuit Court, does not possess the authority to pass judgment on the validity of orders or

warrants which authorise the collection of evidence.

1 The decision in Keating v Governor of Mountjoy , cited for that proposition, tends rather to the contrary. The Supreme Court,

in that case, undoubtedly decided that the District Court had no jurisdiction to inquire into the lawfulness of the detention of a

person charged before it, for the purpose of ordering that person's release from custody. Such jurisdiction was confined, under

Article 40 of the Constitution, to the High Court. However,the jurisdiction claimed for the District Court in that case was a

primary one to order release, not a merely incidental one. The judgments of McCarthy and O’Flaherty J.J. make an important

distinction between that type of jurisdiction and the power of the court of trial to rule on the admissibility of evidence. As

McCarthy J. said,: “In the course of a hearing a justice of the District Court or a judge of the Circuit Court, in an appropriate

case, is bound to enquire into the circumstances under which particular evidence was obtained and may rule against the

admission of such evidence if satisfied that it was obtained in circumstances involving a breach of constitutional rights such as

to taint the evidence itself.”

He clarified the distinction between the powers of the District Court to order the release of persons in custody, which might

infringe the reserved constitutional function of the High Court under Article 40, and the powers of any trial court to rule on the

admissibility of evidence, stating that where “an issue is raised as to the validity of detention in gárda custody of a person

brought before a District Justice, such issue touching, not upon the admissibility of evidence, but upon the actual validity of

detention, the proper course for the District Justice is, as was done here, to remand the person concerned, thus enabling him

to make such application to the High Court as he may be advised.”

McCarthy J, in the course of his judgment, cited the judgment of Walsh J in The People (Attorney General) v Lynch, which

contains the following passage:

“It is important to recall that the District Court and the Circuit Court, which deal with the great bulk of criminal trials in

the State, are courts set up under the Constitution. Like their brethren in the Supreme Court and in the High Court,

each judge of the Circuit Court and of the District Court is obliged by Article 34, s. 5, of the Constitution to make and

subscribe in open court to the solemn and sincere promise that he will uphold the Constitution and the laws. Therefore,

the judges of the District Court and judges of the Circuit Court are not dispensed from, or expected to overlook, their

constitutional obligation to uphold the Constitution in the discharge of their constitutional and legal function of

administering justice. It would be most incongruous if they were to apply a general test of basic fairness because the

Constitution requires it, and not to rule on questions of the admissibility of evidence obtained as a result of breaches of

the constitutional rights of the accused. The judicial obligation is to uphold all of the Constitution."

I see no reason in principle, in the light of these authorities, to deprive courts of trial of such powers as are inherent in the

process of deciding on the legality of steps taken to enable the prosecuting authorities of the State to gather evidence for the

case. Those authorities exercise a wide range of powers enabling them to gather evidence. Relevant enabling orders or

decisions may be made, depending on the subject-matter, by judges of the District Court, Justices of the Peace or Gárda

Superintendents. All orders or decisions of that type directly concern the individual who is or who later becomes the accused at

a criminal trial. I can identify no principle which should withhold from the trial judge the power to rule, for the purposes of the

trial, on the legality of such measures insofar as may be relevant to the admissibility or the exercise of discretion to exclude

evidence gathered in the course of such procedures.

The judge, it must be remembered, is charged only with the task of assuring the fair conduct of a criminal trial. Where, for that

purpose, he rules that evidence is inadmissible because, for example, an invalid search warrant has permitted it to be found, he

makes no order in respect of the search warrant. His ruling does not prejudge the validity of the act in question in other

proceedings. I would adopt, with necessary adaptation, the reasoning of Webster J in Portsmouth City Council v Quetlynn

[1988] QB 114: “...although justices sometimes, for the purpose of the case immediately before them, have to rule upon the

validity of a bye-law or the decision of a local authority, that ruling is binding in no other case and it could not be suggested

that justices or the Crown Court are a competent authority to strike down any such decision in the sense of declaring it invalid

for all purposes.”

Typically only the State and the accused are directly concerned. Dicta in cases such as McSorley are based not so much on

the need to protect the individual rights to notice of the individual State authorities as with establishing that there has been a

true departure from obligatory standards of fairness and justice. In my view, the learned High Court judge was correct when he

said that the trial judge would have “ample jurisdiction to deal with all questions related to the legality of these orders.”

Measures of a more generally applicable or normative character will usually enjoy a different status. The trial court should not

have to decide issues affecting the rights of non-parties to the criminal trial. The extreme case is that of a statute whose

constitutionality may only be raised in the High Court. Intermediate cases will deserve special consideration which does not

arise here.

It is sufficient to say that, in a case such as the present, the Circuit Court would have the power to adjudicate on the validity

of the orders made under the Bankers Books Evidence Acts to the extent that it considers it necessary for the purpose of ruling

on whether to admit evidence.

My reason for treating this issue at such length is to show that it is not necessary for a party placed as the appellant is to

apply by way of judicial review in advance of his trial to have the relevant orders quashed. The need for the court of trial to

have any jurisdiction appropriate for the disposal of such problems is underlined by the long-recognised undesirability of

interrupting criminal trials to enable judicial review applications to be made. O’Dalaigh C.J. said in The People (Attorney General)

v McGlynn [1967] I.R. 232 at p 239:

"The nature of a criminal trial by jury is that, once it starts, it continues right through until discharge or verdict. It has

the unity and continuity of a play. It is something unknown to the criminal law for a jury to be recessed in the middle of

a trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a

criminal trial by jury."

O’Flaherty J, in the Director of Public Prosecutions v Special Criminal Court cited this paragraph with approval and continued:

"While this statement applies to criminal trials with a jury, it should be regarded as a precept that should, as far as

practicable, be followed in respect of all criminal trials subject to the jurisdiction of courts to grant cases stated on

occasion.

However, the situation that prevailed here is that while counsel for the prosecution had been invited by the court to "open"

the case, this was purely for the purpose of giving the members of the court an idea of what the case was about. Essentially,

the ruling that was sought and given was by way of preliminary ruling before the trial was embarked upon.

I would endorse everything that Carney J. said about the undesirability of people repairing to the High Court for judicial

review in relation to criminal trials at any stage (and certainly not during their currency) but, in the exceptional

circumstances of this case, and having regard to the importance that there should be a definitive ruling on this matter

of informer privilege, it was right that Carney J. should have entertained the application at first instance and for us to

hear it on appeal.”

Mr. Hogan, of course, relies on this decision for the proposition that judicial review is an available remedy which permits

challenge to decisions made in the course of a criminal trial. Clearly, it is available in principle but only in the most exceptional

cases. What emerges, therefore, is that, while decisions of a court of trial may be the subject of certiorari, this will scarcely

ever occur during the course of the trial. I have already explained my view that the court of trial has the necessary power in

cases concerning discrete orders affecting the accused, though not necessarily in the cases of measures of a more general

normative character.

There remains the issue of whether the Court should, in this case, in fact quash the order. I am satisfied that the orders

actually affect the appellant. The fact that they are spent does not affect that conclusion. They were made in relation to the

accounts of the appellant. That gives him, in my view, sufficient interest to have them quashed. I believe that this conclusion is

in accordance with the views expressed in my judgment in De Róiste. It follows that the only remaining issue is whether the

learned trial judge correctly exercised his discretion to refuse certiorari.

At this point, it is appropriate to consider the two decisions of Hamilton J in Berkeley v Edwards and Byrne v Grey. In the first

of these cases, the learned judge found support in the statement of Gannon J. in The State (Glover and Mulligan) v District

Justice McCarthy at page 51:

“It seems to me that the principal factor which would guide the Court in the exercise of its discretion in a case where

the alternatives of certiorari and appeal lie is the objective of achieving a just solution of the matters in issue with

minimal inconvenience consistent with regularity of judicial procedures."

I believe that dictum can be adapted, mutatis mutandis, to a case such as the present. In DPP v Special Criminal Court, this

Court found justification in the exceptional circumstances of the case for intervention at the preliminary stage of a criminal trial

and where the Court considered that the decision of the Special Criminal Court was not fair to the accused. Once the judge at

trial possesses any necessary powers and once, as in Clune, it must be presumed that he will exercise those powers fairly and

justly, there is no need for the High Court to intervene. It is usually preferable to allow the trial judge to hear evidence

concerning all the elements bearing on the issue of whether evidence should be admitted than to take one issue such as the

validity of an order to be dealt with in isolation. It should also be borne in mind that the illegality of such an order is not, in any

event, determinative of the issue of admissibility. Taking the issue out of its proper context may create a misleading impression

as to its impact. I do not accept that the two decisions of Hamilton J were incorrect. They correctly applied the principles

relevant to the exercise of discretion.

I believe that the learned trial judge acted within the scope of his discretion on this issue. This is not to say that, in an

appropriate case, the court will not grant judicial review. The objective will always be to find a just solution to the particular

problem.

I also believe that the learned trial judge was correct to reject the appellant’s claim for an order of prohibition on the ground of

delay. The delay period in the present case was not to any degree comparable with what occurred in any of the cases in which

prohibition has been granted. In particular, there is no basis for comparing it with the case of P.P. v DPP. In that case, very

many years had elapsed between the dates of the alleged offences and the making of the first complaint to the gardaí. That

has not occurred in this case. Moreover, Geoghegan J. found in that case that there had been culpable delay on the part of the

gardaí. Although Mr Hogan alleges culpable delay in the present case, I do not think the complaint is warranted. The matters

being investigated by Detective Garda J Seymour were not limited to the single matter of the offence of forgery with which the

appellant was charged at the end of 1994. They ranged over complaints made by more than thirty people and related to

transactions put through a number of financial institutions. Hence, it was essential for the gardaí to have the co-operation of

those institutions. That was not always forthcoming, at least not immediately. Some of the officials, possibly reasonably from

their point of view, required time to obtain legal advice. In any event, I do not find the delay which the appellant describes as

culpable, particularly from February to early September 1996 to be either significant or culpable.

In all these circumstances, I would dismiss the appeal.