High Court quashes unfair District Court orders, remits for new hearing, and denies damages claim.

[2025] IEHC 457

THE HIGH COURT JUDICIAL REVIEW Record No. 2024/1213 JR

BETWEEN

JEMIMA BURKE Applicant -and-

DISTRICT COURT FOR DISTRICT NO.3 AND THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA PATRICK ANTHONY O’CONNOR)

Respondents

JUDGMENT of Ms Justice Sara Phelan delivered on the 14th day of August 2025

TABLE OF CONTENTS

Introduction .............................................................................................................................. 2

Factual Background................................................................................................................. 2

Procedural Background .......................................................................................................... 3

Discussion.................................................................................................................................. 4

Is a remittal to the District Court appropriate? ....................................................................... 5

Is the awarding of compensatory damages appropriate? ..................................................... 12

Conclusion .............................................................................................................................. 14

Costs ........................................................................................................................................ 14

Introduction

1. This judgment concerns orders made at Ballina District Court on 20 June 2024, in circumstances where the applicant was not afforded fair trial rights, and the judgment primarily addresses whether or not it would be appropriate for the Court, in the particular circumstances of this case – where the second-named respondent, the Director of Public Prosecutions (“the Director”), does not oppose the granting of an order of certiorari quashing certain orders as made by the District Court on

20 June 2024 – to:

i. remit the matter for a re-hearing before a different District Court Judge;

and/or ii. to award compensatory damages to the applicant for a pleaded breach of her constitutional rights.

2. For the reasons set out hereunder, this Court:

i. grants an order of certiorari quashing the orders as made by the District Court on 20 June 2024;

ii. does not consider it appropriate to remit the matter for a re-hearing; and iii. does not consider an award of compensatory damages to the applicant to be necessary, or appropriate, in all the circumstances of the case.

Factual Background

3. Section 6 of the Criminal Justice (Public Order) Act 1994 (as amended) makes it an offence for a person, in a public place, to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned. The applicant was convicted of an offence pursuant to the provisions of s.6 of the Act of 1994 at Ballina District Court on 20 June 2024, with a fine of €350 being imposed and six months to pay, and a second charge (under the same provision)

was taken into consideration.

4. This conviction arose in circumstances where, arising out of events that transpired in the early afternoon of 20 June 2024 in Swinford, Co Mayo, the applicant had been arrested at 13:58 on 20 June 2024 and charged with the offences as set out above at 16:15 on the same date. The applicant was then conveyed to Ballina District Court and when it became apparent to the District Court Judge that the applicant was not prepared – as was her entitlement – to enter into a bail bond, the District Court Judge decided to hear the case immediately (commencing at approximately 17:10 on the same date), without affording the applicant time to prepare her defence, for example, by way of considering whether to:

- engage legal representation;

- request disclosure;

- ascertain if CCTV footage were available;

- review mobile phone footage;

- review the custody record;

- review the Garda notebook/statement;

- ascertain if there were witnesses available, etc.

5. It appears that the District Court Judge was of the view that if he did not hear the matter immediately, the applicant would be remanded in custody pending her trial

– by reason of her unwillingness to enter into a bail bond – and in circumstances where the ultimate penalty was unlikely to have been a custodial sentence equal to or in excess of the time that the applicant would spend in custody on remand, the District Court Judge formed a view that the applicant’s best interests would be served by an immediate hearing. Having heard evidence from Garda Padraig O’Connor and the applicant, and submissions from the applicant, the District Court Judge convicted the applicant as set out at §3 above.

Procedural Background

6. Following an ex-parte leave hearing on 25 November 2024 (with the ex-parte motion docket being dated 30 September 2024), leave was granted by the High Court on the same date permitting the applicant to apply by way of judicial review for the reliefs as specified in the statement of grounds filed on 30 September 2024, being inter alia an order of certiorari, quashing the order of the District Court made on 20 June 2024 and as more particularly set out at §3 above. The High Court also extended the time, for the bringing of the judicial review application, to 25 November 2024. The applicant affirmed an affidavit on 30 September 2024 in support of the matters set out in the statement of grounds, which said affidavit exhibited the charge sheets, a transcript of the digital audio recording (DAR) of the hearing on 20 June 2024, the orders of the District Court and the notice of appeal (which the applicant had lodged as a fall-back in the event of her application for certiorari being unsuccessful). A further affidavit was also affirmed by the applicant on 30 September 2024 in support of her application to extend time.

7. A statement of opposition was filed by the Director on 16 December 2024, and Garda O’Connor swore an affidavit on the same date in support of the matters set out in the statement of opposition. There then followed three further affidavits, the first affirmed by the applicant on 07 January 2025, an affidavit in reply sworn by Garda O’Connor on 23 January 2025 and the last affidavit affirmed by the applicant on 11 February 2025.

8. Insofar as they are relevant to this judgment, the matters relied upon by the applicant and the Director respectively in the statement of grounds and statement of opposition and grounding affidavits are discussed below.

Discussion

9. It is clear from the statement of opposition that the Director did not contest the granting of an order of certiorari, albeit that it was the Director’s position that this Court had discretion whether or not to grant such an order to the applicant.

10. It cannot be gainsaid that the manner in which the District Court Judge approached the hearing – as set out at §4 above – was peremptory, notwithstanding the wellintentioned rationale behind such approach. Further, and as borne out by the DAR, the District Court Judge approached the matter with a view to protecting the applicant’s interests such that he did not want her to be remanded in custody.

However, the applicant – by her actions – was entitled to choose not to enter into a bail bond, and her right to a fair trial in due course of law in accordance with Article

38 of Bunreacht na hÉireann (“Art 38”) was an absolute right (per O’Malley J in DPP v. Sheehan [2021] IESC 49; [2021] 1 IR 33, at §89). In preferring to not remand her in custody, and thereby conducting the trial on the same day on which the offence allegedly occurred, it is clear that the District Court Judge fell into error.

11. It is also clear that the applicant seeks certiorari of the order of the District Court and the Director does not contest this relief. In circumstances where it is selfevident that the trial did not meet the minimum requirements of a fair trial – given the loss of the factors identified at §4 above – this Court, in exercising its inherent power to supervise the legality, rationality and procedural fairness of the activities of inter alia the District Court (per Donnelly J in Ballyboden Tidy Towns Group v. An Bord Pleanála & ors [2024] IESC 4, at §39), is satisfied to grant an order of certiorari, without the need to rehearse the long-standing jurisprudence concerning an accused’s right to a fair trial in accordance with Art 38 of Bunreacht and the availability of judicial review to an applicant deprived of those rights.

12. In the circumstances, the real issues between the parties are those as set out at §1 above and it is to those two issues that this judgment now turns.

Is a remittal to the District Court appropriate?

13. Order 84, rule 27(4) of the Rules of the Superior Courts 1986 as amended (“RSC”)

provides that:

“Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.”

and thus it is open to this Court, as contended for by the Director, to remit the matter to the District Court for a re-hearing before a different District Court Judge. In submitting that the matter should be remitted back for a fresh hearing, the Director suggested that the applicant’s complaint that she did not receive a fair first instance hearing would be remedied and that a remittal was wholly appropriate. However, the applicant strenuously opposed such remittal.

14. Whether or not a Court should remit a matter for a further re-hearing depends, firstly, on whether or not the District Court Judge acted within or in excess of jurisdiction. Generally speaking, if the District Court acts within jurisdiction, but in so doing falls into error and an order of certiorari is granted by the High Court upon an application for judicial review, the matter should not be remitted since the accused has already been prosecuted for that particular offence and should not be prosecuted again (see, for example, the decision of Barr J in McGonagle v. District Judge for District No 1 [2023] IEHC 207). This approach is based on the general criminal law proposition that an accused should not be prosecuted for the same offence twice and in such circumstances the special plea of either autrefois acquit or autrefois convict is available to an accused – the consequence of the special plea being non-remittal.

15. However, if the District Court acts in excess of jurisdiction, then the hearing – and conviction – is void ab initio and the matter may, subject to other considerations, be remitted for a re-hearing. In this regard, the Supreme Court (in Sweeney v.

Brophy [1993] 2 IR 202, at p.210 per Hederman J) confirmed that a plea of either autrefois acquit or autrefois convict cannot be established on the basis of an adjudication in excess of, or without, jurisdiction because such an adjudication is void ab initio (see also, for example, Stephens v. Connellan [2001] IEHC 221;

[2002] 4 IR 321, at §37 per McKechnie J).

16. It seems to this Court that the actions of the District Court Judge were such as to deprive the applicant of her constitutional right to a fair trial and, that being so, the District Court ought not to have embarked on the hearing on 20 June 2024. In other words, the District Court, whilst having jurisdiction to hear the case, did not have jurisdiction to embark on a peremptory hearing and therefore, the District Court acted in excess of jurisdiction from the outset, leading this Court to the conclusion that the hearing was void ab initio. In such circumstances (i.e., where the hearing was void ab initio), it is not open to the applicant to avail of the special plea of autrefois convict and thus, the option of remitting the matter to the District Court “with a direction to reconsider it” (per RSC O.84, r.27(4)) remains available to this Court.

17. However, the discretion to remit carries with it an entitlement to refuse to remit, thus bringing the proceedings against an accused person to an end. And in exercising this discretion, the Court must consider the justice and fairness of remitting in the context of the particular facts applicable to this case, including the conduct of all the parties involved (Stephens, at §58(7)).

18. The existing jurisprudence suggests that there are a number of relevant factors to be considered by the Court when deciding whether to exercise its discretion to remit and the applicant submitted that the following factors – which apply in the circumstances of this case – have been held to weigh against remittal of a matter for retrial following the granting of an order of certiorari:

a. where the breach of constitutional justice which occurred in the course of the original proceedings is of a fundamental nature (Nevin v. Crowley [2000] IESC 47; [2001] 1 IR 113, at p.119 per Murray J);

b. where the prosecution cannot be acquitted of all blame in the matter and/or could be said to have acquiesced in the breach of constitutional justice or fair procedures which occurred in the original proceedings (Sweeney, at p.211;

Nevin, at pp.118-119; McGonagle, at §45);

c. where the applicant has ‘played his hand’ or revealed his defence by giving evidence at the previous hearing (McGonagle, at §45; DPP v. Feehan [2018] IEHC 149, at §21 per Barrett J);

d. where in the calendar of offences the offence in question is a minor one (Nevin, at p.119; McGonagle, at §45; Sweeney, at p.212; Payne v. Brophy [2006] IEHC 34; [2006] 1 IR 560, per Clarke J at §26);

e. where the applicant could be said to have endured enough in all of the circumstances including the circumstances of the original hearing, the conduct of the parties, the passage of time and any period of sentence already served (Sweeney, at pp.211-212; Nevin, at p.119).

19. This Court does not disagree with the applicant’s characterisation of the foregoing factors and, to a greater or lesser extent, each of them are pertinent to the present case. The rapidity with which, and the circumstances in which, the District Court Judge proceeded with the trial has led to the Director in effect conceding that an order of certiorari is appropriate and the fact that the applicant did not receive a fair trial in due course of law is not in doubt. Thus, this Court is of the view that the breach of constitutional justice which occurred in the course of the original proceedings is of a fundamental nature and the applicant satisfies this criterion (see §18.a. above).

20. I am also of the view that the Director is not absolved of blame in the conduct of the prosecution since it remained open to Garda O’Connor – or Inspector Naomi de Rís, who was the prosecuting member on 20 June 2024 and who cross-examined the applicant – to intervene to request the District Court Judge to adjourn the matter with a view to ensuring that the applicant’s constitutional rights were protected.

Indeed in Nevin, Murray J held at p.118 that “there is an onus also on State prosecuting authorities to proceed with due respect for such right.” Neither Garda O’Connor nor Inspector de Rís (a relatively senior member of An Garda Síochána)

made any such intervention and thereby can be said to have acquiesced in the breach of constitutional justice. That being so, the applicant also satisfies the criterion as set out at §18.b. above.

21. Further, the applicant satisfies the criteria as at out at §18.d. above, together with some of the factors as set out at §18.c. and §18.e., in that:

i. the offence is one of the most minor offences on the statue book;

ii. the applicant undoubtedly gave evidence in the District Court (and, to a certain extent, disclosed her hand when cross-examining Garda O’Connor and giving evidence herself on affirmation, albeit without sufficient time to properly prepare her defence); and iii. the circumstances of the original hearing are such that, in the view of this Court, the applicant should not face a re-trial.

22. What is not necessarily in the applicant’s favour, taking the jurisprudence into account, includes the facts that:

i. the case is a relatively ‘fresh’ one and thus a re-trial would not be tainted by delay;

ii. the applicant has not spent time in custody; and iii. the applicant has not incurred significant costs – albeit that one of the grounds upon which the applicant relied to justify the granting of the reliefs sought was that “[t]he Applicant has incurred substantial costs in this matter”

(statement of grounds, §E.16), such ‘costs’, as set out by the applicant on affidavit, are more properly categorised as outlay and will, by virtue of the reliefs being granted by this Court, be payable by the Director to the applicant (see §40 below).

23. The Director relied inter alia on the decision of the Supreme Court in O’Mahony v. Ballagh [2001] IESC 99; [2002] 2 IR 410 as authority for the proposition that the matter should be remitted to the District Court but in my view, the error in O’Mahony – being the failure of the District Court Judge “to rule on the arguments made in support of the application for a non-suit” (at p.416 per Murphy J) – was of a somewhat less fundamental nature than the error in the present case, in that in the present case the full trial was tainted by reason of such error, and the factual context and the reasoning in O’Mahony are not sufficient to persuade this Court to remit the matter.

24. The Director also relied on the decision of Simons J in Connors v. DPP [2023] IEHC 8 where the High Court held that a Circuit Court Judge’s refusal to afford an accused person a reasonable opportunity to consult with their legal representatives prior to a sentence hearing was a breach of fair procedures such that firstly, the accused was denied a constitutionally fair first instance hearing; secondly, an appeal to the Court of Appeal did not provide a full remedy and thirdly, it was therefore one of the truly exceptional cases where judicial review was the appropriate remedy. Notwithstanding, Simons J remitted the matter for a fresh sentencing hearing. However, the circumstances in Connors are not on ‘all fours’ with the present case. In Connors, the applicant had already pleaded guilty to the offence with which he was charged and had the matter not been remitted, the applicant would have been left in an anomalous position – with a conviction recorded against him but no sentence imposed – whereas in this case, there is no such anomaly.

25. It was further argued, somewhat curiously in the eyes of this Court, on behalf of the Director – both orally and by way of written submissions – that the applicant was, in effect, the author of her own misfortune in not exercising her right to take up bail and that the applicant was “primarily responsible for her trial proceeding in the District Court when it did.” I do not agree with this characterisation by the Director and the applicant was perfectly entitled to refuse to enter into a bail bond and she did so in the knowledge of the consequences, being that she would be remanded in custody pending the hearing. Neither do I agree with the characterisation by the Director that “the District Judge was meticulously fair”

during the course of the trial (statement of opposition, §3) and had this been the case, it is doubtful in the extreme that the Director would not have opposed the granting of an order of certiorari. There is a world of a difference between being ‘meticulously fair’ and being ‘well-intentioned’.

26. Separately, and looking once more to the conduct of the hearing in the District Court, as is evident from the various affidavits before the Court, it is clear that the prosecuting Garda was in possession of the applicant’s mobile phone during the course of the hearing in the District Court. Whilst there are differing accounts as to how this mobile phone came to be in Garda O’Connor’s possession, this Court does not need to adjudicate on the veracity of these accounts for the purpose of this judgment and, in any event, in circumstances where neither party had served a Notice of Intention to Cross-Examine pursuant to RSC Order 40, rule 36, this Court could not adjudicate on any contested factual issues.

27. Taking the Director’s case at its height, Garda O’Connor averred by way of affidavit on 23 January 2025 that he observed “the Applicant holding up her mobile phone in close proximity to the coroner and to other persons associated with the Inquest that was being conducted in the courthouse in Swinford on 20th June 2024 wherein she appeared to be filming or recording. However, I did not examine her phone or otherwise look at the contents of her phone. I do not know what, if any, photographs or videos it contains.” The averment of Garda O’Connor that “I do not know what, if any, photographs or videos it contains” is to be contrasted with his evidence to the District Court, as is clear from the DAR, that “[t]he accused, while following and video recording these people, Judge, proceeded to block their path” and at the very least, Garda O’Connor must be presumed to have had a high level knowledge of what was recorded on the applicant’s mobile phone. Further, the applicant put it to Garda O’Connor by way cross examination in the District Court, as is clear from the DAR, that she was filming earlier in the day and that she had evidence of the interaction on camera – “I would remind you at this point that I was filming and I do have this interaction on camera”.

28. Garda O’Connor does not suggest that the mobile phone in his possession was a different mobile phone to the one that the applicant had used earlier in the day to film various individuals and yet, at no stage during the hearing in the District Court did Garda O’Connor bring to the attention of the District Court Judge that he had, at that point in time, the applicant’s mobile phone in his possession – a mobile phone most likely containing footage that may well have been material to the prosecution or the applicant’s defence.

29. Lastly, as mentioned at §6 above, the applicant was granted an extension of time within which to bring these judicial review proceedings and in seeking that extension, the applicant relied upon certain correspondence exchanged by her with the Director and vice versa. That correspondence was exhibited in the applicant’s grounding affidavit to her application to extend time and in the first letter from applicant, dated 02 July 2024, she set out in detail the circumstances in which, and the reasons for which, she claimed that her constitutional right to a fair trial had been disregarded and she “respectfully request[ed] that the DPP agree that the conviction and sentence herein should be quashed”. Further correspondence then followed and the Director, by letter dated 26 August 2024, informed the applicant that “[t]he matter has been considered and the Director does not agree to / consent to the quashing of your conviction and sentence”. The applicant was then left with no alternative but to seek leave to issue judicial review proceedings to include the relief of certiorari, and it was not until the statement of opposition was filed by the Director on 16 December 2024 that the applicant became aware that the Director was no longer opposing the granting of an order of certiorari. This delay of some three and a half months cannot be ignored by the Court.

30. Taking everything into account, this Court respectfully adopts the view of the Supreme Court in Sweeney, where Hederman J held at p.211 that “the proper exercise of the Court’s discretion would require that the matter should not be remitted to the District Court in circumstances where the applicant has endured enough and the prosecution cannot be acquitted of all the blame for some, at least, of what went wrong at the trial” and thus I am not prepared to remit the matter for further hearing.

Is the awarding of compensatory damages appropriate?

31. The one remaining issue then is the consideration of compensatory damages and whether the applicant is entitled to same.

32. In general terms, the proposition that an individual whose constitutional rights have been breached may be awarded compensatory damages is not in dispute (see, for example, Kennedy & anor v. Ireland & anor [1987] IR 587, 593 per Hamilton P;

McDonnell v. Ireland & ors [1998] 1 IR 134, 148 per Barrington J; Simpson v.

Governor of Mountjoy Prison [2019] IESC 81; [2020] 3 IR 113, at §128 and §141 per MacMenamin J; O’Callaghan v. Ireland & anor [2021] IESC 68; [2023] 2 IR 135, from §115 onwards per MacMenamin J).

33. And in the more recent decision of the Supreme Court in Dillon v. Irish Life Assurance Plc [2025] IESC 37, Murray J held at §26 (albeit in respect of entirely distinct legal and factual issues), that the purpose of compensatory damages is to “recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience or other harmful effects of a wrongful act (Conway v.

Irish National Teachers Organisation [1991] 2 IR 305, 317 per Finlay CJ).”

34. However, that is not to say that compensatory damages lie for every breach of a constitutional right. Whilst the applicant relied on the decision of the Supreme Court in O’Callaghan as authority for the recovery of damages for the infringement of the constitutional right to a fair trial, it seems to this Court that the circumstances pertaining in O’Callaghan were very different to the circumstances pertaining to the present case and indeed the Supreme Court only entertained an appeal in O’Callaghan on the issue of systemic delay, rather than on the wider issue of damages for an unfair trial (see O’Callaghan v. Ireland & anor [2021] IESCDET 5).

35. The issue in O’Callaghan concerned a delay in determining an appeal before the Court of Criminal Appeal. That appeal related to a criminal conviction which was ultimately overturned by the Court of Criminal Appeal and by the time the Court of Criminal Appeal ordered the plaintiff’s release, the plaintiff had spent over 23 months in custody, solely in respect of the quashed conviction. The Supreme Court (per MacMenamin J at inter alia §85 and §112) held that the right to a trial in due course of law under Art 38 necessarily included a right to a trial or appeal within a reasonable time, and the existence of a right to damages for systemic delay was clearly established in that case.

36. O’Callaghan was very much a case decided on its own facts (it was a case “without a precedent” per MacMenamin J at §112) and I do not consider that it has any application to the present case. Indeed there is no established precedent that damages lie for an unfair trial per se, absent, for example, a malicious prosecution or a miscarriage of justice, and much less so when the conviction has been rendered void ab initio for the reasons as set out earlier in this judgment. In this regard, this Court respectfully adopts the views of the Court of Appeal in O’Callaghan v.

Ireland & anor [2020] IECA 180, where Ní Raifeartaigh J, in upholding the

decision of the High Court, held at §53 that “there is no cause of action entitling a person to damages for a “miscarriage of justice” which exists outside and independently of the Criminal Procedure Act, 1993 and which stems from the common law or the Constitution.”

37. The applicant did not contend that there was a malicious prosecution in the present case and although a miscarriage of justice was one of the grounds upon which the applicant sought relief (statement of grounds, §E.15), and the applicant averred that she was “the victim of a serious miscarriage of justice” by way of affidavit affirmed on 30 September 2024, the applicant did not elaborate upon this claim by way of oral or written submissions to this Court. Further, the averment that she was “the victim of a serious miscarriage of justice” was primarily relied upon by the applicant to argue against remittal, not to ground an award of compensatory damages and, in any event, the applicant did not contend at any stage that she came within the provisions of the Criminal Procedure Act 1993.

38. Thus, and in all the circumstances of this case, I am of the view that the applicant is not entitled to an award of compensatory damages.

Conclusion

39. Thus, this Court will make the following orders:

i. an order of certiorari quashing the orders as made by the District Court on

20 June 2024;

ii. an order prohibiting any further prosecution of the applicant in the District Court.

Costs

40. Pursuant to the provisions of s.169 of the Legal Services Regulation Act 2015, costs should follow the event “unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties”. In circumstances where the applicant has largely succeeded in her application, and there is nothing of note concerning the particular nature and circumstances of the case, or the conduct of the proceedings by the parties such as would warrant a departure from the parameters set out in s.169, the

Court is inclined to award the applicant, as a litigant in person, her expenses and outlay in respect of the application.

41. However, it is open to the parties to contend for the making of a different form of costs order and these judicial review proceedings will be listed for 10:30 on 14 October 2025 when I will hear the parties in relation to the precise form of costs order to be made.