High Court dismisses judicial review application to restrain prosecution due to witness death and prosecutorial delay.

APPROVED [2025] IEHC 513

THE HIGH COURT

JUDICIAL REVIEW

2023 1460 JR

BETWEEN

S.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered on 29 September 2025

INTRODUCTION

1. This judgment is delivered in respect of an application to restrain a criminal prosecution on the grounds of prosecutorial delay. It is contended that a fair trial is not now possible in consequence of the death of one of the intended prosecution witnesses. The argument here being that this witness would have been available had the criminal prosecution been brought to trial within a reasonable period.

NO FURTHER REDACTION REQUIRED

2. The criminal prosecution is pending before the Circuit Criminal Court. The applicant for judicial review is one of two co-accused. For ease of exposition, the applicant will be referred to throughout this judgment as “the accused”.

3. The accused stands charged with multiple counts of theft, forgery and using a false instrument, contrary to the Criminal Justice (Theft and Fraud Offences) Act 2001. The accused had been employed by a car dealership as a dealer. The alleged offences relate, in the main, to the onward sale of vehicles which had been traded in as part of the purchase of another vehicle from the car dealership. The prosecution case is that, in certain instances, the fact that the customer had traded in a vehicle was not recorded in the sales contract and the vehicle was, instead, sold privately by the accused at a profit to himself.

4. One of the intended prosecution witnesses died a number of years after the criminal proceedings had commenced. The deceased had been the managing director of the company which operated the car dealership. The accused contends that any actions on his part, which are now alleged to comprise criminal offences, were done with the knowledge of the managing director and that the latter “signed off on everything”.

5. It is contended that the unavailability of the managing director as a witness has two consequences as follows. First, it is pleaded that there is a real and unavoidable risk of an unfair trial by reason of the fact that the accused cannot now cross-examine the managing director through counsel. In particular, it cannot now be put to the managing director in cross-examination that he had been aware of the full particulars of all transactions and had been involved in the paperwork. Second, it is pleaded that the prosecution will not now be able to prove a key element of the offences, i.e. the absence of consent on the part of the car dealership as the owner of the vehicles alleged to have been thieved.

6. To avoid any risk of prejudicing the fairness of the pending criminal prosecution, which is to be heard by a jury, this judgment has been redacted. The name and address of the accused have been omitted, and the circumstances of the alleged offences have been deliberately described in general terms. Neither the name of nor the location of the car dealership has been identified.

REPORTING RESTRICTIONS

7. This judgment is subject to the following reporting restrictions: nothing is to be published or broadcast, when reporting this judgment, which might identify the accused, his co-accused or the car dealership. For the avoidance of doubt, it should be emphasised that the media may report on any detail which is stated in this judgment. The reporting restrictions preclude only the reporting of extrinsic details, such as names, addresses or locations, which are not stated in this judgment. It should be emphasised that the reporting restrictions do not affect reportage of the criminal proceedings themselves, and the parties can be named in that context. The reporting restrictions only relate to the reporting of this judgment.

8. These reporting restrictions have been imposed pursuant to the court’s common law power to ensure the integrity of the criminal trial. (See, generally, Gilchrist v. Sunday Newspapers Ltd [2017] IESC 18, [2017] 2 IR 284). The reporting restrictions seek to strike a balance between the constitutional right to a fair trial and the constitutional imperative that justice should generally be administered in public.

9. To elaborate: this judgment has, of necessity, had to refer to matters—such as, for example, the existence of two different versions of the same sales contract— which may ultimately be ruled inadmissible at the criminal trial. Were these details to be published or broadcast in advance of the trial by reference to the name of the accused, there is a risk that one or more individuals, who are subsequently called upon to serve upon the jury, may have seen this reportage and associate same with the accused. This would have the practical effect that members of the jury may be aware of material which should be excluded from their consideration.

10. Reporting restrictions, in the form of the anonymisation of the parties to the criminal prosecution, are proportionate in that they allow the substance of the judgment to be published whilst safeguarding against the risk that a member of a future jury might be apprised, by way of media report, of material which might not be admissible at trial. The omission of the name of the accused and of the car dealership will make it less likely that a member of the jury will associate the reportage with the trial. Unless otherwise ordered, the reporting restrictions will expire upon the conclusion of the criminal trial.

11. Any bona fide member of the press or broadcast media may apply to this court to lift or vary these reporting restrictions. Any such application should be made on ten days’ notice to the parties to these proceedings.

ROLLED UP OR TELESCOPED HEARING

12. The High Court (Hyland J.) directed that there be a rolled up or telescoped hearing of the leave application and the substantive application. Accordingly, it is necessary for this court to consider, first, whether the threshold for leave to apply for judicial review has been met; if so, the court must go on to determine the substantive application for judicial review.

LEGAL TEST

13. There is a degree of consensus between the parties as to the legal test governing the assessment of whether a criminal trial has been rendered unfair because of the lapse of time and the death of a witness who might have been of assistance to the defence. The key issue to be determined is whether the accused person has lost the real possibility of an obviously useful line of defence. See Director of Public Prosecutions v. C.C. [2019] IESC 94.

14. The parties are in disagreement, however, on the question of the forum before which this assessment should be carried out, i.e. the court of trial or the court of judicial review. This logically anterior question is addressed, by reference to the circumstances of the present case, at paragraphs 33 and onwards below.

15. To place that discussion in context, it is instructive to set out the following passage from the judgment of O’Malley J. in Director of Public Prosecutions v. C.C. [2019] IESC 94 (at paragraph 4):

“In summary, the Chief Justice has said that the task of the

trial judge, when considering an application of this nature,

will involve an assessment of the prosecution case. There

must, of course, be sufficient evidence for a properly

instructed jury to convict the accused, since otherwise he or

she will be entitled to a direction in any event. Assuming

that this threshold is met, the trial judge must next consider

the evidence said to be missing. What is required here, if the

accused is to succeed in the application, is a legitimate basis

on which it can be said to be reasonable to infer that

particular evidence, potentially favourable to the defence,

might have been given had the trial taken place at an earlier

stage. If the prosecution case is very strong, then the

evidence said to be missing would need to be such that there

was a real possibility that it could influence the decision of

the jury notwithstanding the strength of the prosecution case.

A theoretical possibility that the absence of some

tangentially material piece of evidence might render the trial

unfair is not enough. It is necessary to look at the case in the

round, to have regard to the likelihood of evidence

favourable to the defence being genuinely lost by reason of

the lapse of time and also to have regard to the role which

the evidence might reasonably have been expected to play at

the trial, in the light of the prosecution case as it actually

appeared at the trial. The issue to be determined is whether

the accused has lost the real possibility of an obviously

useful line of defence. The task of the trial judge is to

determine whether the trial is fair, rather than whether the

accused is guilty or innocent. The burden in such an

application is on the accused, who may be able to make the

case on the basis of the evidence already adduced by the

prosecution or may need to adduce defence evidence. It may

be necessary to call evidence in absence of jury.”

16. This passage explains the approach to be adopted by the court of trial. It is also germane to the question of whether, in any particular case, the position might be so clear-cut that the court of judicial review would be justified in restraining the trial in advance. This is because, irrespective of the forum, the essential question is the same, namely whether the accused person has lost the real possibility of an obviously useful line of defence. As is apparent from the passage above, it is necessary to look at the prosecution case in the round and to assess both (i) the likelihood of evidence favourable to the defence having been lost by reason of the lapse of time, and (ii) the role which the evidence might reasonably have been expected to play at the trial. An accused person seeking to restrain a criminal prosecution must directly engage with the prosecution case, rather than seek to raise hypothetical issues.

17. O’Donnell J. described the potential consequences of the death of an intended witness as follows (Director of Public Prosecutions v. C.C. at paragraph 28):

“[…] trials are not rendered unfair or unjust simply because

of the absence of a witness whose evidence, although

relevant, is not an essential proof. If it were otherwise, then

the absence of a single witness, or even a co-accused or

accomplice, would mean that any trial was impossible.

Generally speaking, the trial process should be robust

enough to handle the absence of witnesses or real evidence

that occurs without fault, unless and until the cumulative

impact is such as to render the trial either impossible or

unfair.”

NATURE OF THE PROSECUTION CASE

18. In order to assess the materiality of the supposedly missing evidence, it is necessary, first, to consider the nature of the prosecution case. It should be emphasised that the purpose of this exercise is simply to put the accused’s application for judicial review in context. It should not be misinterpreted as indicative of any view on the part of this court as to the admissibility of evidence nor as to the underlying merits of the prosecution case. Still less should this judgment be understood as entailing any findings of fact on the part of this court. The accused enjoys the presumption of innocence.

19. The criminal prosecution relates to events which are alleged to have occurred during the period April 2014 to June 2017. No charges were preferred until September 2020. At that time, the accused was charged with false accounting and forgery contrary to section 6, section 10, section 25 and section 26, respectively, of the Criminal Justice (Theft and Fraud Offences) Act 2001.

20. The prosecution case has since reoriented: what is described as an “amended” indictment was served in December 2023. (In fact, this appears to be the only indictment ever served). The accused now stands charged with multiple counts of theft, forgery and using a false instrument, contrary to the Criminal Justice (Theft and Fraud Offences) Act 2001.

21. The gravamen of the prosecution case appears to be that the accused misappropriated the profit due to his former employer in respect of vehicles which had been traded in as part of the purchase of new vehicles. This had been achieved, allegedly, in some instances by the accused improperly recording the trade-in value (which had been allowed to the customer against the price of the new vehicle) as if it were a cash payment made by the customer, i.e. it is not apparent from the sales contract that there had been any trade-in. The implication seems to be that—unbeknownst to his employer—the accused sold the traded-in vehicle himself, possibly at a higher price than the notional tradein value allowed to the customer. In other instances, it is alleged that some tradein vehicles were recorded as having been sold to a trade car buyer when, in fact, they had been disposed of to a private buyer.

22. It is apparent from the book of evidence that the prosecution will seek to prove its case in respect of a number of vehicles by calling oral evidence from individuals on either side of the supposed transaction, i.e. the person who had traded in the vehicle and the person who claims to have subsequently purchased the same vehicle directly from the accused (rather than through the car dealership). By way of illustration only, the book of evidence contains the following witness statements in relation to the supposed trade in and subsequent purchase of a 2008 registered vehicle. (Witnesses 82, 83 and 84). The first witness states that he traded in the 2008 registered vehicle as part of the purchase of a new vehicle in March 2017. The witness further states that he had been allowed €1,250 in respect of the vehicle. A second witness states that he purchased the 2008 registered vehicle in April 2017 from the accused for €3,800. It is alleged that a trade vehicle sales contract records that the 2008 registered vehicle had been purchased by a company, M— Car Sales Ltd (full name redacted), for €1,000. A witness on behalf of that company states that it did not purchase the 2008 registered vehicle.

23. It seems that the prosecution intends to rely, in respect of most, if not all, of the individual counts on the indictment, on the content of a document described as a “SIMI Vehicle Order/Sales Contract”. (The acronym “SIMI” refers to the Society of the Irish Motor Industry). Each of these documents, seemingly, bears a unique reference number and the prosecution will seek to rely on this numbering to connect an individual record with a specific sales transaction.

24. For ease of exposition, these documents will be referred to hereinafter by the shorthand “the sales contracts”. It should be emphasised that this does not entail any finding by this court as to the authenticity or admissibility of these documents.

25. It seems that the prosecution will seek to introduce the sales contracts into evidence as business records. The implication seems to be that each of these documents had been altered by the accused and comprises a “false instrument” within the meaning of section 30 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The book of evidence contains statements from a number of individuals who purport to have purchased a vehicle through the accused, and the implication is that the content of the relevant sales contract does not coincide with the witness’s recollection of the transaction. In some instances, it appears that the prosecution will allege that the content of the sales contract had been altered subsequently, with the consequence that the details recorded in the copy given to the customer are different from those in the copy retained by the car dealership.

26. An affidavit has been sworn in these judicial review proceedings by a detective garda, who in describing the modus operandi alleged against the accused, avers as follows:

“[…] An examination of Sales Invoice Forms retained by

[the car dealership] disclosed that, in some cases, additional

figures and/or other particulars were added to the form after

the copy had been furnished to the customer i.e. – the copy

furnished to the customer differed to the original retained by

[the car dealership]. In many cases, the fact that the customer

had traded-in a car was not recorded on the original form.

Further investigations revealed that the trade-in car had been

sold privately by […] and/or [the accused].”

27. It should be emphasised that the accused categorically denies that any forgery or use of forged documents took place. In his cautioned interview, the accused had stated that “nothing happened without the permission of” the managing director; that he “signed off on everything”; “that he had the “final say” on all deals; and that he initialled all of the sales contracts.

DISCUSSION OF GROUNDS OF JUDICIAL REVIEW

OVERVIEW

28. The managing director died on 3 August 2023. This is some three years after the criminal prosecution had been commenced by the laying of charges. The failure to bring the criminal prosecution on for trial within three years is criticised by the accused. The implication being that this witness would have been available had the criminal prosecution been brought to trial within a reasonable period. A trial date had been fixed on 21 February 2022 but the earliest slot for a six-week trial had been February 2024. (In the event, the trial date was vacated on 19 December 2023, and the case was adjourned with no new trial date fixed).

29. The accused contends that the criminal prosecution should not be permitted to proceed by reason of the fact that the managing director cannot now be a witness at the trial. This contention is advanced by reference to two arguments as follows. The first argument is that the accused has been deprived of the opportunity to raise a reasonable doubt in the minds of a jury as to whether the managing director consented to the transactions now alleged to comprise criminal wrongdoing. It is said that this creates a real risk of an unfair trial as the accused has been deprived of the opportunity to cross-examine a key prosecution witness. In particular, it cannot now be put to the managing director in cross-examination that he had been aware of the full particulars of all transactions and had initialled all of the paperwork. Further, it cannot now be put to the managing director that the making of a criminal complaint to An Garda Síochána had been an act of spite or vengeance on his part, motivated by his finding out that the accused intended to set up a rival car dealership.

30. Having regard to these matters, the accused contends that he is prejudiced in his intended defence of the criminal prosecution on the basis that he had sold the traded-in vehicles in good faith on the understanding that this is what the managing director had wanted him to do.

31. The second argument is that the prosecution will not now be able to prove a key element of the offences, i.e. the absence of consent on the part of the car dealership as the owner of the vehicles alleged to have been thieved. It is said to follow that there is no reasonable prospect of the prosecution securing a conviction.

32. Theft requires proof that property was taken without the consent of its owner. It is a defence that an accused person believes that he or she has the owner’s consent or would have the owner’s consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated.

DISCUSSION

33. It is proposed to address the two arguments in turn. The gravamen of the first argument is that the criminal prosecution should not be permitted to proceed in circumstances where, or so it is alleged, the death of one of the principal prosecution witnesses has rendered a fair trial impossible. Strictly speaking, this objection requires consideration of two questions: first, whether there has been blameworthy prosecutorial delay, and secondly, whether the prejudice alleged to have arisen in consequence of the delay, i.e. the unavailability of the prosecution witness, has created a real and unavoidable risk of an unfair trial.

34. Before embarking upon an assessment of the merits of this objection, it is necessary to address the logically anterior question as to the identity of the correct forum by which this assessment should be undertaken, i.e. the court of trial or the court of judicial review.

35. The modern case law indicates that the assessment of whether there is a real or serious risk that an accused person, by reason of prosecutorial delay, would not obtain a fair trial is quintessentially a matter for the court of trial. The court of judicial review should only intervene in very clear-cut cases in which any potential unfairness will not be affected by the development of the evidence at the trial. This approach is explained as follows in Director of Public Prosecutions v. C.C. [2019] IESC 94 (per O’Donnell J. at paragraph 44):

“The logic underlying this recent approach of the courts is

that the assessment of the overall fairness of the proceedings

is best carried out at the trial, rather than in advance on the

basis of affidavit evidence professionally drafted and

speculation as to what might transpire at a trial. The courts

came to require that applicants at least directly engage with

the case, rather than seek to raise hypothetical issues.

Moreover, the place that any lost evidence, whether real or

oral, might play in a case was best assessed in the context of

the case itself, and the manner in which it proceeded.”

36. In the present proceedings, the court of trial will be better placed than the court of judicial review to assess overall fairness. The two principal reasons for this are as follows.

37. First, the materiality or significance of the unavailability of the managing director of the car dealership as a witness will depend on the extent to which he had been the controlling mind of the company. It is apparent from even the limited papers in the judicial review proceedings that this is a matter of controversy between the parties. On the one side, the accused contends that the managing director had been kept apprised of all cars traded in for onward sale. On the other, the witness statement of one of two surviving directors is to the effect that the accused’s co-accused, in his capacity as the “dealer principal”, had overall responsibility for every sale that took place at the car dealership and would have signed off on the allowance a purchaser would receive for a tradein. This disputed factual issue is one which can only be properly resolved by way of oral evidence at the trial.

38. Second, the assessment of whether the unavailability of the witness might reasonably be said to prejudice the accused in his defence necessitates an engagement with the prosecution case with a view to identifying how the lost evidence might have assisted in defending the charges. Save in a clear-cut case, where the significance of the deceased witness is obvious and not in controversy, the court of judicial review will not be best placed to perform this assessment.

39. Here, it is not at all obvious as to how the loss of a prosecution witness redounds to the prejudice of the accused. The accused has not engaged in a specific way with the prosecution case with a view to establishing any reasonable basis for the assertion that the managing director might have been expected to give evidence of assistance to the defence. The most that the accused has done, to date, is to imply that any actions taken by him were done with the approval of, or at least the tacit consent of, the managing director. The accused has not, to date, provided any detail as to what actions he is referring to. Moreover, the accused has not addressed the witness statements which indicate that the duplicate copy of certain sales contracts, which had been retained by the car dealership, may have been altered so as to remove any reference to a vehicle having been traded in as part of the transaction. In the absence of any explanation having been provided, it is difficult to understand what possible benefit there would have been to the car dealership in making such alterations to the records. This, in turn, makes it difficult to understand why the managing director of the car dealership might have approved or consented to such alterations.

40. The case law requires that an accused person must demonstrate the “real possibility” of a loss of an obviously useful line of defence. This entails an assessment of the role which the missing evidence might reasonably have been expected to play at the trial, in the light of the prosecution case. Applied to the circumstances of the present proceedings, this indicates that there must be a “real possibility” that the unavailable witness would have given evidence which would assist the defence.

41. To date, the accused has failed to reach this threshold. The current state of play is that the managing director had given a witness statement which expressly stated that he had not consented to the actions of the accused. Had the managing director given evidence at trial in accordance with his witness statement, this would have been of assistance to the prosecution, not the defence. It would go to the issue of whether the vehicles had been appropriated without the consent of the owner: see section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The offence of theft requires proof of dishonesty. “Dishonestly” is defined as meaning “without a claim of right made in good faith”. It is also a defence that an accused person believes that he or she has the owner’s consent or would have the owner’s consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated.

42. It would, of course, have been open to the accused to challenge the version of events as outlined in the witness statement, by way of cross-examination, had the managing director not died but remained available to give evidence at the trial. On this counterfactual scenario, the managing director’s credibility might have been undermined by such cross-examination. Indeed, the managing director might even have recanted his witness statement. Such outcomes would have been theoretically possible. However, the case law emphasises that an accused person, who seeks to restrain a criminal prosecution, must directly engage with the prosecution case, rather than seek to raise hypothetical issues.

43. In the absence of the accused engaging with the other witness statements in the book of evidence, by offering an explanation as to why the managing director might have consented to the alteration of sales records in the absence of any apparent benefit to him or his company, it cannot be said, at this point, that there is a “real possibility” that the managing director’s evidence would have been of assistance in defending the charges. It remains open to the accused to provide such an explanation at trial. For present purposes, the point is that the court of judicial review is not well placed to address the question of prejudice having regard to the limited evidence before the court at this time.

44. For similar reasons, the question of whether there has been culpable or blameworthy prosecutorial delay is one which is also best left to the court of trial. It is apparent from the extensive number of witness statements (running to in excess of one hundred) that this was a complex investigation. It is also apparent from the inter partes correspondence that extensive disclosure has been required and that the vacation of the trial date in December 2023 has been attributed to the need to address disclosure. Having regard to these headline factors, it cannot be said that this is a clear-cut instance of culpable or blameworthy delay. The court of judicial review is not well placed, on the basis of the very limited affidavit evidence, to assess whether the time expended in the Garda investigation and in progressing the criminal prosecution was reasonable, or, whether, alternatively, it involved culpable or blameworthy delay.

45. Turning to the second argument, namely that the prosecution will not now be able to prove a key element of the offences, this too is an argument for the court of trial. The argument is predicated on the assumption that the prosecutor will not be able to establish, beyond a reasonable doubt, that no one on behalf of the car dealership had consented to the private sale of traded-in vehicles. The court of judicial review is not in a position to make any meaningful assessment as to the reasonableness or otherwise of this assumption. A proper assessment would require consideration of oral testimony by the surviving directors of the car dealership and consideration of any admissible business records. This assessment can only be carried out by the court of trial. If the prosecutor has failed to make out the necessary proofs, the court of trial can direct that there is insufficient evidence to allow the charges go to the jury and direct an acquittal.

CONCLUSION

46. The grounds upon which the accused contends that the pending criminal trial has been rendered unfair are all ones which the court of trial is best placed to adjudicate upon. Any assessment of whether the delay has been culpable and/or blameworthy, and of whether the death of a witness entails the “real possibility” of a loss of an obviously useful line of defence, can only be properly performed by reference to evidence. It will be necessary, for example, to consider the pace of the criminal investigation by reference to evidence from the Gardaí involved. It will also be necessary to consider the extent to which the managing director of the car dealership had been involved in approving individual transactions (as contended for by the accused) and as to whether he would have had any plausible reason to approve the (alleged) alteration of the sales contracts. None of this can be meaningfully assessed by reference to the limited affidavit evidence before the court of judicial review. It can only be done by the court of trial by reference to the run of the evidence.

47. Similarly, the argument that the prosecution will not now be able to prove a key element of the offences is also an argument for the court of trial.

48. Accordingly, the substantive application for judicial review must be dismissed. In circumstances where the case comes before the court by way of a rolled up or telescoped hearing, the formal order will record that leave to apply for judicial review has been granted. The grounds pleaded meet the modest threshold of arguability, which governs a leave application, but have ultimately been dismissed for the reasons explained.

49. Finally, it does not trespass upon the pivotal role of the court of trial in assessing delay to offer the following observations. It is now more than a decade since the first of the events, which are alleged to have involved criminal wrongdoing, took place. It is unsatisfactory, to put it neutrally, that the criminal trial has not yet taken place. It is in the interests of justice that a hearing date be fixed for the criminal trial as soon as possible.

50. These proceedings will be listed for submissions on costs on 14 October 2025.

Appearances

Colman Fitzgerald SC and Craig Phillips for the applicant instructed by Powderly Solicitors LLP David Staunton for the respondent instructed by the Chief Prosecution Solicitor