High Court dismisses judicial review application as criminal proceedings and private tort claims are the proper remedies.

THE HIGH COURT [2025] IEHC 476 RECORD NO: H.JR 2025/1278 BETWEEN:

CILLIAN HARFORD

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT Ex Tempore Judgment of Ms. Justice Emily Egan delivered on the 26th day of August, 2025

1. These proceedings arise out of an incident which occurred on 19th or 20th of August 2025. The applicant maintains that he was observing a large fire on the Luas Line bridge opposite George’s Dock, Dublin 1. As the evening progressed, the Garda cordon was gradually extended and the applicant states that his bicycle was within this cordon. The applicant entered the cordon to retrieve his bicycle. He was informed by a member of An Garda Síochána that he should not be within the cordon and his details were taken down. The applicant alleges that the Garda did not give him a formal direction to leave the area. The applicant states that he continued to remain outside the cordon and picked up a piece of crime scene tape from the ground, which he put in his bag to keep as a souvenir. Shortly after midnight, the applicant was approached by another member of An Garda Síochána who advised him that he was within the cordon. The applicant alleges that when he disputed this, the Garda took down his details before arresting and searching him. Although not averred in his verifying affidavit or referred to in his statement required to ground the application for judicial review, the applicant also informed the court that he was taken to Store Street Garda Station where he spent three hours before being released on bail. The applicant has been charged with an offence under the Public Order Act 1994 and in respect of the crime scene tape, with an offence under the Criminal Justice (Theft and Fraud Offences) Act 2001.

2. The applicant came before this Court on Friday, 22nd of August, seeking leave to apply for judicial review against the Commissioner of an Garda Síochána.

3. The reliefs sought in the statement required to ground the application for judicial review are:

a) A declaration that the applicant's arrest was unlawful and that his personal rights were violated;

b) An order of certiorari or prohibition against the respondent to prevent them prosecuting the applicant for the alleged offences;

c) Compensation for emotional distress as a result of the injustice of unlawful detention and the making of frivolous criminal accusations;

d) An order for costs in bringing the proceedings under Article 40.4 of the Constitution.

4. The applicant requests the court, apparently under Article 40.4 of the Constitution, to inquire into the legality of his arrest and detention and preserve all evidence to support his account of events, including the making of an order for CCTV and bodycam footage.

5. In his verifying affidavit, the applicant, avers that imposing court fees in these proceedings will create an undue financial burden and act as a barrier to justice. The court is therefore requested to waive court fees in order to protect the applicant’s constitutional rights.

6. The applicant also applies by ex parte motion docket for the following:

a) An order declaring that access to the courts is a fundamental right guaranteed under the Constitution and that no impediment including financial barriers should obstruct access to justice

b) An order declaring that the judiciary have a duty to ensure that constitutional rights are upheld

c) An order waiving all fees associated with the applicant's judicial review on the grounds that such fees are unconstitutional in obstructing access to justice concerning the violation of fundamental rights.

7. The issue of the waiver or otherwise of court fees only arises if the applicant succeeds in his application for leave to apply for judicial review.

8. Therefore, the first issue that this court must decide is whether it is appropriate to grant the applicant leave to apply for judicial review.

9. I invited the applicant to indicate the legal basis for either his application for leave to apply for judicial review or for his ex parte application. He addressed the court for a matter of minutes and made no real effort either to expand upon his written materials or to apply the law to his case. His essential argument appears to be that it is inappropriate to charge him with a public order offence for failure to comply with a direction of An Garda Síochána because he was not issued with any such direction.

10. As this application came on for hearing at the end of a very long vacation list, I informed the applicant that I would deliver judgment today, 26th of August.

General legal principles in relation to the judicial review of criminal proceedings

11. The essential relief sought in the applicant’s statement of grounds is an order of prohibition as against his prosecution for the offences with which he has been charged (as described above).

12. Judicial review of criminal proceedings and, in particular an order for prohibition of a criminal process will only be granted in exceptional cases where there is a real and unavoidable risk of an unfair trial. In order to obtain an order for prohibition, a genuine risk of an unavoidably unfair trial must be established, i.e. a risk that cannot be remedied or avoided by appropriate rulings and directions of the trial judge, bearing in mind the primary duty of the trial judge to ensure that the accused receives a fair trial. Prohibition of criminal proceedings is an exceptional remedy.

13. An application for judicial review is required by Order 84 of the Rules of the Superior Courts to specify the grounds upon which relief is being sought. In order to obtain leave to apply for judicial review, the applicant is required to clearly formulate the grounds on which the relief is sought.

14. The test for obtaining leave to apply for judicial review is as set out in G v. DPP [1994]

1 IR 374. In particular, an applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application that, amongst other matters:

a) the facts averred to in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review;

b) that on the facts an arguable case in law can be made that the applicant is entitled to the relief sought and;

c) that the only effective remedy on the facts established by the applicant would be an order by way of judicial review or, that if there is an alternative remedy, that the application by way of judicial review is, on the facts of the case, a more appropriate method of procedure.

15. Where the relief sought is prohibition of criminal proceedings, the leave judge must be satisfied that the case is arguably one where the exceptional remedy of prohibition would be appropriate.

16. Judicial review proceeds by way of a hearing on affidavit and is concerned with the manner in which decisions are made, not with the substance of any decision. The most appropriate remedy in a judicial review is usually to remit the matter to the decision maker so that the decision can be made in a procedurally and legally fair way.

Application of these legal principles to the facts of this case

17. For reasons, I now explain, there is no stateable or arguable ground for a remedy in judicial review in this case (see para.s 14 (a) and (b) above).

18. Judicial review may not be brought during the currency of criminal proceedings save in wholly exceptional cases, where the interests of justice so require. No such interests arise here.

19. The applicant contends that he should never have been arrested. Although the most appropriate remedy in a judicial review is to remit the matter to the decision maker, there is no facility whereby this decision (whether or not to arrest the applicant) can be remitted to the individual members of An Garda Síochána for another decision even if there were a finding of unfairness or illegality.

20. The applicant’s claim that he was wrongfully arrested and falsely imprisoned is a matter in respect of which a remedy is available in law: a plenary hearing in which the applicant seeks damages for false imprisonment. There is no provision for the hearing of allegations such as this by way of judicial review, nor is judicial review the appropriate procedural or substantive remedy.

21. As stated above, the essence of the applicant’s case is that he was not issued with a direction to leave the area before being charged with a public order offence. It goes without saying that the determination of this issue of fact will require oral evidence from the applicant and from the relevant member or members of An Garda Síochána.

22. Such oral evidence will be given in the District Court in the course of the criminal proceedings. I must assume, and do assume, that the applicant’s constitutional rights will be fully respected in the said criminal proceedings.

23. Likewise, as stated above, if the applicant maintains that he was falsely arrested or deprived of his liberty, then he can advance such an allegation in the context of a private law tort action and not a public law action by way of judicial review.

24. In short, adjudication upon the applicant’s allegations necessitates the determination of matters of fact and not a review of the fairness or legality of any decision making process such as might be amenable to judicial review. The core of this case is fact finding and allegations of wrongdoing, rather than assessing the fairness or legality of procedures. In these circumstances, this is not an appropriate case for judicial review or for any of the remedies sought.

25. In any event, the protections which will be afforded to the applicant in the context of any criminal proceedings and the potential availability of a private law tort action demonstrate that there are other remedies more appropriate than judicial review (see para. 14 (c) above).

26. The applicant has therefore failed to meet the test for obtaining leave to apply for judicial review. I therefore refuse to grant the applicant leave to apply for judicial review.