High Court grants mandamus compelling District Court to allow appeal by case stated regarding FSI certificate validity.

THE HIGH COURT

[2025] IEHC 355

[Record No. 2024 264 JR]

BETWEEN

SHANE WARD

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Ms. Justice Marguerite Bolger delivered on the 20th day of June 2025

1. This is an application for mandamus requiring the District Court Judge to state an appeal by way of case stated, following their refusal to do so at the applicant’s request on

18 January 2024. For the reasons set out below, I grant an order of mandamus.

Background

2. The applicant was charged with possession of a controlled drug contrary to s. 3 of the Misuse of Drugs Act 1977 and possession of a controlled drug for unlawful sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977. In the hearing before the District Court the prosecution had put into evidence a certificate of analysis from Forensic Science Ireland (hereinafter referred to as ‘FSI’) that was issued by Dr. Sarah Martyn, an officer of FSI, pursuant to s. 10 of the Misuse of Drugs Act 1984, as amended. The certificate, which was the main component of the prosecution’s evidence, was issued by Dr. Martyn and was signed as having been certified by Dr. Martyn.

3. Section 10 provides: “In any proceedings for an offence under the Principal Act or section 5 of this Act, the production of a certificate purporting to be signed by an officer of the Forensic Science Laboratory of the Department of Justice and relating to an examination, inspection, test or analysis, as the case may be, specified in the certificate of a controlled drug or other substance, product or preparation so specified shall, until the contrary is proved, be evidence of any fact thereby certified without proof of any signature thereon or that any such signature is that of such an officer.”

4. The applicant’s submissions (at para. 23) asserts there was no evidence that the certificate was provided either by the person carrying out the examination or the person under whose supervision the examination was carried out. The submissions also say that, when cross-examined as to whether any evidence of who examined or supervised the examination of the substance could be provided, both Garda witnesses were unable to provide that evidence. Counsel for the applicant submitted to the District Court Judge that the certificate failed to provide any evidence as to whether the person certifying the contents of the certificate had any involvement in the examination, testing or analysis of the alleged controlled drugs while in the custody of FSI. Reliance was placed on the obiter dictum of the Chief Justice in DPP v. AC [2021] IESC 74 and, in particular, his observation that there must be evidence that such a certificate is provided by either the person who carried out the examination or under whose supervision the examination was carried out. Written submissions on relevant case law were provided to the District Judge who considered them. The District Judge ruled against the application for a direction to dismiss. The applicant contended that an essential proof was missing from the prosecution case, which deprived the District Court of jurisdiction to convict, and his counsel asked the District Court Judge to refer a question of law to the High Court by way of an appeal by case stated. The District Court Judge refused because he considered the application was frivolous, which he later confirmed on 18 January 2024 by way of a signed Certificate of Refusal to State a Case. The applicant was convicted and sentenced to six months with recognisance fixed on his own bond.

Alternative remedy

5. Judicial review generally should not be granted where there is an adequate alternative remedy. The DPP asserted that there was an adequate alternative remedy here; the Circuit Court appeal which the applicant had lodged and to which he bound himself by recognisance. That appeal to the Circuit Court is the alternative of the two statutory appeal options available to the applicant, the other being the appeal by way of case stated to the High Court which he seeks to secure by way of the within application for mandamus. Having invoked a Circuit Court appeal, the DPP says the applicant has, in effect, elected for that appeal and cannot also seek to invoke the alternative option that the law makes available to him because the “starting point” referred to by Phelan J. in DPP v. Dumbrell [2024] IEHC

681 does not exist.

6. Counsel for the applicant made it clear that they do not seek to bring both of the alternative appeal options that were available to the applicant, and that the Circuit Court appeal had only been lodged to avoid the applicant having to serve the sentence to which he had been convicted, pending the appeal by way of case stated that he wishes to bring. The applicant had previously undertaken to Hyland J., who heard the application for leave, not to prosecute the Circuit Court appeal if the appeal by way of case stated was prosecuted. Hyland J. directed the applicant’s solicitor to seek the DPP’s consent to a stay on the District Court committal order. The applicant’s solicitor wrote to the DPP seeking that consent, on foot of which the applicant would withdraw his Circuit Court appeal. No such consent was forthcoming. Counsel for the applicant undertook to this Court that the applicant will withdraw his Circuit Court appeal upon judgment being delivered by this Court, regardless of this Court’s decision.

7. I am satisfied that the applicant lodged an appeal to the Circuit Court solely to preserve his liberty and, had he not done so, he would have had to serve the sentence imposed by the District Court Judge. It is possible that he could have applied for bail, but there is no guarantee it would have been granted. Depending on the outcome of the appeal by way of case stated that I am directing the District Court Judge must refer to the High Court, the applicant may or may not have to deal with that sentence. However, he is entitled to explore the legality of the sentence and to maintain his constitutional right to liberty pending confirmation or clarification from the High Court as to the validity of the District Court’s interpretation and application of section 10. In those circumstances, the Circuit Court appeal is not an adequate alternative remedy to the appeal by way of case stated that the applicant seeks and to which I have determined he is entitled. The applicant is entitled to pursue a remedy by way of judicial review in spite of the existence of his statutory right to appeal to the Circuit Court in circumstances where he lodged that appeal for the reason set out and where the applicant confirmed that the Circuit Court appeal will not be proceeded with regardless of the outcome either of this application or of the appeal by way of case stated to which I have determined he is entitled.

Appeal by way of case stated

8. Section 4 of the Summary Jurisdiction Act 1857 provides: “If the justice or justices be of opinion that the application is merely frivolous, but not otherwise, he or they may refuse to state a case, and shall, on the request of the appellant, sign and deliver to him a certificate of such refusal: Provided, that the justice or justices shall not refuse to state a case where application for that purpose is made to them by or under the direction of Her Majesty's Attorney General for England or Ireland, as the case may be.” In Sports Arena Ltd v. O’Reilly [1987] IR 185, this court followed the decision of State (Turley) v. Ó Floinn [1968] IR 245 in finding it was entitled to form its own opinion as to whether the application was frivolous or not. Blayney J. (in the High Court) found that the application raised “a substantial point of law for consideration” that were “far from simple questions so that an application involving their resolution could not in my opinion be described as being frivolous” (at p. 192). The case was not frivolous and so the applicant was entitled to an order of mandamus compelling the District Judge to state a case.

9. The DPP relied on the following dicta of Hanna J. in State (Reilly) v. District Justice for Clones [1935] IR 908: “…if the District Justice has bona fide applied his mind to the issue of whether the request is one of substance or one that is frivolous, the Court cannot interfere, even though it might have itself come to a different conclusion”. However, that case seems to have been determined on the basis that “[t]he duty of determining whether a request for a Case is frivolous or not has been vested in the District Justice and not in this Court” (as per O’Byrne J. at p. 930). If that was the law, it is no longer given the approach taken by the Supreme Court in the State (Turley) v. Ó Floinn where the Supreme Court held that it was open to the High Court to form its own opinion as to whether an application for a case stated was frivolous or not. This analysis was expressly accepted by the High Court in Dumbrell. In any event, the factual situation in O’Reilly was entirely different in that the issue the applicant wished to appeal by way of case stated was whether the corroborative evidence that was required by the statutory provision had been given. That is either a question of fact or a mixed question of fact and law. In the within case, the issue of the correct interpretation of s. 10 raised by the applicant is undoubtedly a question of law.

Frivolous

10. “Frivolous” sets a very low bar, well short of the “arguable” standard of judicial review. It was described by Phelan J. in Dumbrell as follows (at para. 39): “The Applicant has foregone an automatic right of appeal to the Circuit Court in favour of a statutory right of appeal, in respect of a contended erroneous finding of law which is subject only to a threshold of frivolity. As a limitation on his right of appeal, the threshold for what constitutes a frivolous argument should not, in my view, be elevated in a manner which would frustrate the Applicant pursuing a stateable argument that the evidence in this case was simply so inadequate or weak that it is insufficient as a matter of law to ground a conviction. A threshold of nonfrivolity is not a burdensome threshold and I do not have to be satisfied that it is an issue upon which the Applicant is likely to succeed. To be non-frivolous, it is not required that an argument be more than stateable or arguable.”

11. “Frivolous” suggests something that is completely devoid of any seriousness or sense. Thus, the test for a District judge to refer an appeal by way of case stated is whether a serious issue has been raised. This does not require an argument to have a likelihood of success, but merely that it raises a serious issue, or does not raise something that is devoid of any seriousness. Satisfying that low bar test does not require an analysis of the issue, but simply requires a determination as to whether the issue is serious or not.

12. The correct interpretation of s. 10 is undoubtedly a serious issue. That, in itself, is not enough. This applicant must show that the interpretation of s. 10 that they presented to the District Judge and the implications that it would have had for the applicant’s conviction, had it been accepted, constitutes a serious issue. The following factors confirm the serious nature of the issue raised by the applicant on the interpretation of section 10.

(i) DPP v. AC

13. In AC, the Supreme Court considered the admissibility of a certificate as evidence under s. 25 of the Non-Fatal Offences Against the Person Act 1997 where the medical practitioner who signed the certificate did not personally perform the examination. The DPP made submissions on what was required for a certificate pursuant to s. 25 of the Non-Fatal Offences Against the Person Act 1997 and compared this with what was required by section

10. They asserted that s. 10 did not require that the certifying person has carried out the examination, inspection, test or analysis, a similar point to that on which the District Court Judge refused to refer an appeal by way of case stated in the within proceedings. The Chief Justice, in a clearly obiter comment, correctly and prudently declined to offer a definitive interpretation of s. 10 as it was not directly at issue in the proceedings. He said, at para. 20 of his decision, that it was “a matter to be addressed in the context of the application of that section in a concrete case”. The Chief Justice clearly considered it was important to comment on the DPP’s argument which he said was not supported by s. 10 and so must have considered it a serious matter that requires clarification or at least comment from the Supreme Court, even if it was on an obiter basis. The Chief Justice gave the following succinct analysis of s. 10:- “Under s. 10 the officers providing the certificate must plainly be in the position to certify the truth of the matters specified in the section. It is, for example, inconceivable that the certificate could be proffered and become evidence in relation to an examination, inspection, test or analysis which was not carried out by Forensic Science Ireland. That section must be read on the basis that it is obviously limited to a certificate in respect of the receipt, handling, transmission or storage, or inspection, test or analysis by Forensic Science Ireland, even though that is not expressly stated in the section. By the same token, in my view, the section here must be read as requiring that the certificate here must be provided either by the person carrying out the examination or under whose supervision the examination was carried out.”

14. The DPP’s written submissions (at para. 20) point to the “marked differences” between the requirements of s. 25 at issue in AC and s. 10 and claims that the obiter dictum comment undermines rather than supports the applicant’s arguments. I think that submission may be based on what the DPP claims is evidence in the certificate that the analysis was carried out by Dr. Martyn because she signed the certificate as certifying its content and because it is a certificate from the FSI. This process differs from the s. 25 certificate that was challenged in AC as a s. 25 certificate must be certified by an individual medical practitioner.

15. I was referred to the decision of Hobbs v. Hurley, a decision of Costello J. of 10 June 1980, where a s. 25 certificate was upheld because of what counsel referred to as a “corporate element” to it. However, any such corporate element was expressly provided for in the s. 25 certificate at issue in that case. The certificate stated “[t]he Medical Bureau of Road Safety certifies that on analysis by the Bureau the specimen to which the above particulars relate contained a concentration of milligrammes of alcohol per 100 millilitres of urine”. The s. 10 certificate at issue here does not make any similar provision for the FSI having certified the content of the certificate. The impugned certificate states that it was issued by Dr. Martyn, being an officer of Forensic Science Ireland, pursuant to section 10 and Dr. Martyn signed the certificate underneath the words “Certified By”.

16. It is not for this Court to determine whether the DPP’s distinguishing of the comments made in AC on the correct analysis of s. 10 is correct or whether the amendments to s. 10, since AC, renders the obiter dictum analysis of the Chief Justice less relevant or even irrelevant to the correct interpretation of section 10 in the circumstances of this case. That will be for the court hearing the appeal by way of case stated. However, I cannot accept that the comments of the Chief Justice in AC are of such little relevance to the correct analysis of s. 10 that the argument made by counsel for the applicant to the District Court Judge in their application for an appeal by way of case stated, was so lacking in any seriousness as to be frivolous.

(ii) Previous Approach of District Court and DPP

17. The obiter dictum comments of the Chief Justice are not the only basis on which I find the application for an appeal by way of case stated was not frivolous. There is also the manner in which the same, or broadly similar, argument had been addressed previously by the District Court and by the DPP. In his affidavit grounding the application for judicial review, the applicant’s solicitor sets out the following, none of which was challenged by the DPP’s replying affidavits: “9. The impugned District Court proceedings were heard after several months of adjournments by Judge John Hughes of any cases proceeding to hearing involving drugs and certificates issued by Forensic Science Ireland. This was by reason of the fact that the Director of Public Prosecutions had lodged a Notice of Application to Appeal by way of Case Stated a decision of Judge Paula Murphy in June 2023 while sitting in Court 3 Criminal Courts of Justice in relation to the same arguments made in the impugned proceedings.

10. In that case, Judge Murphy had held with the Defence and held that the FSI certificate was inadmissible for being documentary hearsay and dismissed the charges.

11. The Director of Public Prosecutions subsequently did not proceed with her Appeal by way of Case Stated and the dismissal of the case by Judge Paula Murphy was left to stand.

12. In January 2024, Declan Keating, the Head of the District Court Division of the Director of Public Prosecutions informed Judge John Hughes that the Director of Public Prosecutions had withdrawn her Notice of Application to Appeal by way of Case Stated and Judge Hughes proceeded to begin rehearing cases, the subject matter of which involved controlled drugs and where FSI certificates were to be tendered into evidence by the prosecution.”

18. Counsel for the applicant described what was going on when all drug prosecutions were put on hold pending the DPP’s appeal by way of case stated as “huge”. Not only did another District Court Judge accept a similar argument in relation to s. 10 as the applicant sought to make, but even more significantly, the DPP viewed the issue as sufficiently serious to merit seeking an appeal by way of case stated (for which the DPP is not required to establish that the matter was not frivolous). The issue was seen as sufficiently serious to delay many other drug prosecutions before the DPP decided against proceeding with the appeal by way of case stated, the result of which was that the within applicant’s case was able to proceed. This is more than simply different views being taken by different District Court judges, which may have been due to different facts and circumstances.

Decision

19. It is not for this Court, in the within application for judicial review, to endorse one interpretation of s. 10 over another. This Court is tasked only with determining whether the issues raised around the interpretation of the section are so devoid of seriousness that they satisfy the test for refusing an appeal by way of case stated as “frivolous”. On the basis of how the issues have been addressed by the Chief Justice in his obiter dictum comments in AC, by another District Court Judge and by the DPP in instituting an appeal by way of case stated and by the adjourning “of any cases proceeding to hearing involving drugs and certificates issued by Forensic Science Ireland” (Mr. Quinn’s affidavit at para. 9) as per the unchallenged averment of Mr. Quinn, the applicant’s solicitor, I am satisfied that the issues raised were not frivolous.

20. This Court has jurisdiction to decide if the application for an appeal by way of case stated was frivolous or not. The applicant lodged a Circuit Court appeal to preserve his liberty. He will not be proceeding with that appeal once this judgment is delivered, having stated his intention to withdraw his appeal regardless of the outcome of the within application for mandamus. That alternative appeal does not preclude this Court from exercising its discretion to grant mandamus.

21. The issues raised by the applicant and the basis for his application for an appeal by way of case stated were not frivolous, both on the merits of the argument made on the interpretation of s. 10 and having regard to how the issue has been treated previously by the Chief Justice in obiter dictum comments in AC. The earlier version of s. 10 involved in that case is not so different as to render the issues frivolous.

22. I have also had regard to how the issue has been treated in the District Court since June 2023 when an FSI certificate was deemed inadequate and the DPP moved to appeal the decision by way of case stated as a result of which other drug prosecutions involving FSI certificates (including this one) were adjourned until the DPP withdrew the appeal and the District Court recommenced hearing the case.

23. I, therefore, grant mandamus directing the District Court to allow the applicant’s appeal by way of case stated.

24. I will put the matter in at 10.00am on 10 July 2025 to consider any submissions the parties wish to make in relation to the final orders that should be made.

Counsel for the applicant: Michael O’Higgins SC, Gregory Murphy BL Counsel for the respondent: Kieran Kelly BL