High Court dismisses judicial review where District Court dismissed charge due to lack of video links without specific enquiry.

THE HIGH COURT

JUDICIAL REVIEW [2025] IEHC 620

RECORD NO. 2023 811 JR

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

OWEN DERMODY

RESPONDENT

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 13th day of November, 2025.

INTRODUCTION

1. The net legal issue arising for consideration on this application by way of judicial review is whether the District Court was lawfully entitled to dismiss a summary charge in respect of an offence alleged to have occurred on the 8th of March, 2021, when the matter came before the District Court sitting at Galway Courthouse on the 25th of April, 2023, by reason of the inability of the prosecution to proceed due to the non-availability of video-link facilities.

2. While it is accepted that the District Court has a jurisdiction to dismiss the charge and it is further accepted that this jurisdiction was capable of being lawfully exercised in this case, it is contended that the exercise of a power to dismiss should be preceded by an enquiry sufficient to enable the Court to address relevant considerations and explain how these considerations have been weighed in justifying the decision to dismiss. It is contended on behalf of the Applicant that this did not occur in this case and further that the decision reached was without lawful justification.

BACKGROUND AND CHRONOLOGY

3. The Respondent was charged with assault causing harm, contrary to s. 3 of the Non- Fatal Offences Against the Person Act, 1997 (hereinafter “the 1997 Act”) by summons dated the 4th of October, 2021.

4. The events giving rise to the prosecution occur against a protracted history of poor relations between neighbouring farmers. From the material put in evidence in these proceedings, the thrust of the allegation is that on the 8th of March, 2021, the Respondent struck his neighbour with a stick whereby the injured party received serious injuries to the head requiring stitches. The circumstances in which that alleged assault occurred were expected to be contested during the trial with each party making statements to the Gardaí reflecting a different account of what had occurred.

5. The initial summons was returnable to Clifden District Court in County Galway on the 27th of January, 2022. On that date, consent to summary disposal was communicated and the court accepted jurisdiction in that matter.

6. There followed several subsequent adjournments. Once disclosure was made the case was listed for summary trial on the 26th of May, 2022, almost fifteen months after the alleged offence had occurred. It could not proceed on that date in the absence of the Complainant. The case was adjourned to Clifden District Court on the 26th of January, 2023 (a year after the first return date) in order to facilitate the injured party, the primary prosecution witness, who was absent having been incapacitated in an unrelated incident and was at the time residing at a medical facility, having been transferred from the National Rehabilitation Hospital.

7. When the matter came before the District Court on the 26th of January, 2023, the Complainant was again absent as he remained medically incapacitated. On that date, the District Court sitting at Clifden District Court (Judge Fahy) ordered that the Complainant be given the opportunity to give his evidence to the court via video link. The matter was then specially fixed for hearing on the 25th of April, 2023 (almost a year after it was listed for summary trial on the 26th of May, 2022 and more than two years after the events giving rise to the prosecution), at Galway Courthouse in circumstances where Clifden Courthouse was not equipped with video-link facilities.

8. In advance of the specially fixed hearing date, the prosecuting Garda performed a 'dry run', to ensure that the video link facility could be used to connect the alleged injured party to the impending proceedings using a link provided by the Court Services.

9. On the 25th of April, 2023, the matter duly came before the District Court sitting in Galway City (Judge Keane presiding). It transpired upon arrival at Galway Courthouse on the morning of the 25th of April, 2023, that the two courtrooms equipped with video facilities were in use for other court business (the Circuit Court was sitting and there was also a busy family law list). This meant that by default the specially fixed sitting of Galway District Court had to be allocated to the remaining court room (Court No. 3).

The District Court clerk indicated to the parties that it would not be possible to facilitate a video-link for the purpose of the hearing, as Court No. 3 did not have the capacity to host video-link evidence.

10. A full transcript of the day’s proceedings is available in evidence. It shows that, contrary to what was averred on affidavit on behalf of the Applicant in grounding the within proceedings ex parte, there was no consent on behalf of the Respondent to the adjournment application. Furthermore, also contrary to what the Court was told at ex parte leave stage, the District Court was not advised that the application for an adjournment was on consent. Instead, the transcript shows that the matter was called twice and considered by the District Court Judge on both occasions. It was clear that there was no consent to the adjournment of the proceedings.

11. The transcript discloses that on first call the District Court Judge was immediately made aware by the Respondent’s solicitor that his client was in court and that the matter had been transferred from Clifden Courthouse and was specially listed because the Complainant:

“through no fault of his own and nothing to do with this particular charge, finds himself incapacitated and was to give evidence by videolink on -- by videolink and it was supposed to be set up for today.”

Having said this, the Respondent’s solicitor repeated:

“ my client is here, Judge.”

12. The Garda Inspector present on behalf of the Applicant then addressed the Court stating:

“it was assumed that the court downstairs would be free, where there is videolink facilities. Unfortunately, I think the Circuit Court is sitting and there's a Family Law Court sitting. I think they have a massive list in the family law. And I think the suggestion was made it would be -- Thursday may have become free now I think, Judge. I think if that is suitable to all parties, it could be adjourned into Thursday, Thursday coming for the videolink downstairs will be –”

13. At this point, the District Court Judge interjected to observe that she did not think the Respondent’s solicitor would want to be coming from Castlebar. In response, the Respondent’s solicitor confirmed that it would be:

“inconvenient for me, Judge, to come on Thursday.”

The Respondent’s solicitor added:

“it is the fifth if not sixth time it has been in the list, Judge, through no fault of the accused.”

14. This prompted the Judge to ask:

“And what does the matter relate to?”

15. The Respondent’s solicitor advised in response that:

“it’s a section 3 assault, Judge, that’s contested”

16. At that point the Judge stated that she would:

“leave it stand. But I'll come back to you”

She added:

“it does not look very capable at all, Inspector.”

17. Before she moved to the next matter, the Respondent’s solicitor again reminded the judge that the Respondent accused was “here”.

18. Having dealt with other matters, the Court returned at second call to the case against the Respondent. As before, the Respondent’s solicitor opened by reminding the District Court Judge that the Respondent was in court. The Judge enquired as to when the matter had been transferred from Clifden back to Galway. She was advised by the Respondent’s solicitor that it was in Clifden on the 27th of January, 2023, when application was made that it should be transferred into Galway so that the victim could be heard on video-link in circumstances where he was in a wheelchair and would not be able to access the courthouse in Clifden. The Respondent’s solicitor advised that the application to transfer had been “acceded to by my client” (presumably meaning the application was not opposed) and the matter “was specially fixed for today. He's here”.

19. There then ensued an exchange between the District Court Judge, the Garda Inspector and the Respondent’s Solicitor recorded on the transcript as follows:

“JUDGE: Inspector, why are we ... ?

INSPECTOR: Judge, I think the matter was -- it's a Clifden case, Judge, and I believe there's no videolink facilities available in Clifden courthouse. The matter was adjourned into this Court today to avail of the videolink facilities.

At the time, Judge -- the videolink facilities are in the two courtrooms downstairs, but there's a family law case -- Family Law Court sitting today as well as the Circuit Court, Judge. So the specials were put into this court today and unfortunately there's no videolink facilities in this court, Judge.

JUDGE: And the accused and his solicitor are ready to go?

SOLICITOR: Yes, Judge.

INSPECTOR: I'm in your hands, Judge. We'll seek an adjournment. I know Thursday is available. I think the court has come free on Thursday.

JUDGE: And [Solicitor] has indicated that that doesn't suit him.

SOLICITOR: Well, I'd have to make other arrangements. There's a substantial list in Castlebar on Thursday, Judge.”

20. After this exchange, the District Judge refused the prosecution application and dismissed the charge before the court stating:

“JUDGE:·I have to dismiss it. There was adequate opportunity given here and there wasn’t the arrangements … In those circumstances I shall dismiss the charge.

SOLICITOR: Much obliged; Judge.

JUDGE: And have people coming to court ready to go and no facilities been put in place. Thank you.

SOLICITOR: I'm obliged, Judge. Thank you.

th

21. The District Court Order made on the 25 of April, 2023, was signed by a clerk of the th District Court on the 14 of June, 2023. After the usual recitals concerning the details of the court sitting and the nature of the allegations, the curial part of the order states that it was ordered “that said complaint be dismissed.”

PROCEEDINGS

22. A Statement of Grounds and Grounding Affidavit were filed in the Central Office on the 13th of July, 2023. The matter was opened before the High Court (Hyland J.) on the 17th of July, 2023, whereupon an order was made granting liberty to file an Amended Statement of Grounds. The leave application was adjourned to the 9th of October, 2023. On that date, the High Court (Owens J.) gave leave to apply by way of judicial review to challenge the lawfulness of the decision to dismiss the prosecution of the Respondent in respect of the sole charge pursuant to s. 3 of the 1997 Act.

23. There was no direction for the release of the DAR in relation to the said proceedings at leave stage. The proceedings were grounded upon an affidavit of the Garda Inspector from Galway Garda Station who was in Court at Galway District Court for the hearing on the 25th of April, 2023. He confirmed his recollection and belief that the application for an adjournment had been moved on consent and the prosecution dismissed notwithstanding the District Court Judge being made aware that the application was for a consent adjournment.

24. In a replying affidavit filed on the 13th of November, 2023, the Respondent’s solicitor took issue with the evidence on behalf of the Applicant, confirming that he had neither agreed to the application for an adjournment nor, to his memory, had the Court been advised that he was in agreement. He confirmed that he believed that the DAR would confirm that he had explained to the Court that he could not attend Court in Galway on the 27th of April, 2023, the proposed adjournment date.

The Respondent’s solicitor further confirmed that the Respondent was not legally aided and that he had been privately retained. He did not agree that there had been no consideration given to the application for an adjournment. He said it was clear to the Court that he was objecting to the application to adjourn the matter to the 27th of April, 2023 and that his client and he were there to meet the case.

25. Thereafter a copy of the DAR transcript was obtained and as summarized above, largely corroborated the Respondent’s solicitor’s account of what had occurred and made it clear that the Garda Inspector’s evidence to the effect that the District Court was told the application for an adjournment was by agreement was inaccurate. In a replying affidavit, the Garda Inspector referred to this as “a miss-recollection.”

DISCUSSION AND DECISION

Conflict of Evidence

26. These proceedings were instituted and leave to proceed by way of judicial review was granted on what has transpired to have been an incorrect factual basis. The Applicant now accepts that, contrary to the position confirmed on affidavit in moving the application for leave on an ex parte basis, there was no consent to an adjournment and nor was the District Court informed that the application was on consent.

27. It appears to me that the Applicant’s deponent could only have reached the

conclusion that consent to an adjournment existed, as averred to by him on affidavit, by impermissibly extrapolating consent from the fact that it was not expressly stated by the Respondent’s solicitor in discussions between them that the adjournment application would be resisted or that an application to have the proceedings dismissed would be made instead.

28. Allowing for the fact that the Applicant’s deponent is an Inspector with An Garda Síochána and not a practicing lawyer, nonetheless, whether consent to an action in legal proceedings exists or not is a matter of importance which should be clear to everyone. Indeed, even if the Garda Inspector mistook the Respondent’s lack of vociferous or trenchant objection to wrongly assume consent to his application to adjourn, this does not explain his averment that the District Court was told the application was on consent when this simply never happened. The Applicant’s deponent should have been under no illusions in this regard.

29. I accept that when dealing with a high volume of work without assistance as may typically be the case in the District Court, it can be difficult to maintain an accurate recollection of each interaction. A somewhat mitigating factor in this sorry sequence of events is that in grounding the proceedings it was expressly acknowledged by the Applicant’s deponent that the DAR would be available if evidence as to his belief was challenged as to what had transpired before the District Court. Indeed, there were two references to the DAR in his grounding affidavit in explaining that his evidence was to the best of his belief and recollection, but he would defer to the DAR if he was considered mistaken.

30. The existence or otherwise of consent to the application and whether the District Court Judge was informed of consent are undoubtedly material considerations.

The fact that no such consent existed or was communicated to the court is clearly damaging to the Applicant’s case. The case I must determine on behalf of the Applicant is therefore considerably weaker than it would have been, had the adjournment application been on consent and had the court been made aware of such consent.

31. While I do not condone or excuse the fact that this application was presented ex parte on a misleading basis at leave stage without proper explanation, I do not propose to dwell on this further in circumstances where there is now no dispute as to what happened and these proceedings are being maintained, notwithstanding the now weaker but undisputed factual grounds underpinning the legal complaint made in these proceedings. It falls to me to determine the issues on what are now essentially agreed facts.

Exercise of a Power to Dismiss

32. The contention at the heart of this application is that the proper exercise of a power to dismiss proceedings in a manner which has the effect of irrevocably terminating proceedings must be preceded by enquiry. The purpose of this enquiry into the relevant circumstances is to inform the Court’s consideration of competing interests. It also enables the Court and to explain why, on the Court’s assessment of the relevant factors, the balancing of said interests warranted dismissal of the proceedings.

33. I am referred on behalf of the Applicant to cases such as D.P.P. v. District Judge Brennan and Ors. [1991] 2 LR. 233; Shannon v. District Judge Oliver Mc Guinness and others [1997] IEHC 54, [1999] 3 I.R. 274; D.P.P. v. Paget [2016] IEHC 559; D.P.P. v. Ní Chondúin [2007] IEHC 321, [2008] 3 I.R. 498;

Minister for Employment Affairs and Social Protection v. OCS Operations Ltd. (in liquidation) [2019] IEHC 569; Richards v. His Honour Judge James O'Donoghue [2016] IESC 74, [2017] 2 I.R. 157. These cases were identified as supportive of the contention that while the District Court undoubtedly enjoys an exceptional jurisdiction to dismiss, it is established that this jurisdiction must be exercised judicially and be based on rational considerations.

34. It is argued by the Applicant that the District Court Judge exceeded her jurisdiction in this instance by dismissing the prosecution without due enquiry or rational justification. In making the case that the charge should not have been dismissed, the Applicant contends that the order dismissing the prosecution because of a lack of remote hearing facilities within the courtroom was irrational in so far as it seemed to attribute the situation to prosecutorial misconduct or neglect. It is pointed out on behalf of the Applicant that there is distinction between the functions and duties of the Courts, and particularly the Courts Service – who allocate judges and/or courtrooms – and the prosecution. The Applicant emphasizes in submissions that the nonavailability of the courtroom with necessary facilities on the assigned hearing date was not something which the prosecution could control.

35. It is further contended that insofar as the inconvenience to the Respondent’s solicitor was a factor in the decision, this should not have outweighed the significant and weighty considerations of ‘justice being done’ by having a case heard. In this context, it is urged that the rights of the victim in respect of the criminal proceedings are an important factor. It is further argued that the Director of Public Prosecutions, as for any litigant, is entitled to have her case heard.

Indeed, I am asked to consider what the position might be were an appellant/accused to have their appeal struck out, because a suitable courtroom was not available on the day the appeal was scheduled to be heard through no fault of the appellant’s own.

36. It is submitted that the constitutional requirement that justice be administered does not appear to be adequately vindicated when an otherwise stateable case is nonsuited because of considerations which are outside the control of the litigant whose case is thereby concluded without being heard.

37. Reliance is placed on the fact that the District Court Judge had other options when confronted with the fact that the prosecution could not proceed on the day. I am referred to Order 23 of the District Court Rules which states that:

“(5). Where the accused (or his or her representative) is present at the required time and place and the prosecutor (or his or her representative) is not present, the Court may strike out, dismiss without prejudice or adjourn the hearing of the complaint.”

38. I am further referred to Order 38 which provides that:

"(4) Where the Court is of opinion that the complaint before it discloses no offence at law, or if neither the prosecutor nor accused appears, it may if it or thinks fit strike out the complaint with or without awarding costs."

39. The distinction between a prosecution being ‘struck out’ - in which case it may be re-entered without undue difficulty - and a prosecution being ‘dismissed’ simpliciter and therefore finally determined, is highlighted with particular focus on the fact that the power to dismiss simpliciter is not referred to in the Rules. Notwithstanding that it is conceded that the jurisdiction to dismiss undoubtedly exists, it is submitted that the powers instanced in the District Court Rules provide for a means of addressing shortfalls in the state of readiness to proceed, without a final and absolute termination of the underlying prosecution and are powers which could more properly have been used in this case.

40. For his part, the Respondent relies on a series of cases including the Supreme Court decision of Cleary v. D.P.P. [2011] IESC 43, [2013] 2 I.R. 48 and D.P.P. v Ní Chondúin [2007] IEHC 321, [2008] 3 I.R. 498, the latter described as a particularly “important authority” in favour of the Respondent’s position.

41. The importance which the Respondent attaches to the decision in Ní Chondúin rests primarily on the fact that there the District Court dismissed charges against two defendants in circumstances where the prosecution could not proceed on the second hearing date (like the instant case). The D.P.P. sought to quash the

decision as being irrational due to the absence of delay. In both cases the delay was less than one year. In his decision, MacMenamin J cited authority for the proposition that “the jurisdiction of a District Court Judge may include a dismiss in circumstances where there has not been a formal adjudication on the merits”

(§70) and for the proposition that “[a] Judge may, within jurisdiction reasonably exercised, dismiss a case finally if the prosecution cannot proceed” (§67).

42. In refusing in Ní Chondúin to order certiorari of a dismissal order made in a case following a number of adjournments at the instance of the prosecution, McMenamin J. found that where a District Court Judge reasonably inferred that the basis for any further adjournment application was inadequate, there lay within the jurisdiction of that court and within the constitutional duty of fairness, the power to ensure that justice was administered expeditiously and finally by dismissing the charge. He further found that notwithstanding the absence of evidence of prejudice, either actual or presumptive, a District Court Judge was obliged to prevent an invasion of the constitutional rights of an accused and could, in certain circumstances, accede to a request not to allow a trial to proceed. He found that even in a case where prosecutorial delay was not in issue but rather one where the prosecution did not have its witnesses in court, a judge might, within jurisdiction reasonably exercised, dismiss a case finally. McMenamin J. reasoned that the constitutional duty to observe fair procedures included a power to dismiss if the prosecution could not proceed as the public interest in ensuring that crime was prosecuted must be balanced by the public interest in ensuring that justice was concluded.

43. The decision of McMenamin J. in Ní Chondúin was cited with approval by

Hardiman J. in delivering the majority judgment of the Supreme Court in the later

decision in Cleary (at §53), also relied upon on behalf of the Respondent before me. In Cleary, the D.P.P. prosecuted the applicant summarily for assault causing harm. On the hearing date, there was no appearance by the prosecution, and the case was dismissed. Subsequently, the D.P.P. sought to prosecute the applicant on indictment for the same offence even though no steps had been taken to set aside the order of dismissal. In a prohibition action, the D.P.P. contended that the District Court order was made without jurisdiction having regard to the District Court rules and could effectively be ignored. This was rejected by the Supreme Court which held the order of dismiss was a valid order made by a court of competent jurisdiction.

44. In seeking to stand over the decision of the District Court Judge in this case, the Respondent relies on the fact that Hardiman J made detailed comments to the effect that the order of dismiss was intra vires in Cleary. It must be acknowledged, however, that as no challenge was brought in respect of the order dismissing proceedings, the question of the lawfulness of that order was not the issue directly before the Supreme Court and these comments were necessarily obiter.

Accordingly, statements to the effect that the order was intra vires require to be understood in the light of the fact that this was not a finding in respect of a contested manner, but obiter observations made in circumstances where there had been no challenge to the vires of the order.

45. In submissions in response to the D.P.P.’s reliance on cases such as Brennan v.

D.P.P., Shannon v. McGuinness, and Paget v. D.P.P., the Respondent sought to distinguish Brennan and Paget and contended that Shannon was not, in fact, helpful to the Applicant’s position.

46. In Brennan, the defendants appeared before the District Court charged with burglary and criminal damage. They indicated an intention to plead guilty. Their solicitor arrived late and said he objected to the process by which the defendants were brought to court which rendered the detention unlawful. The judge dismissed the charges. This dismissal was subsequently quashed by order of certiorari. Of course, the situation in Brennan is entirely different to the situation in this case because the District Court was effectively determining the case on the merits on a preliminary basis and based on an assertion that the process was rendered unlawful. In contrast, the circumstances of this case were that the prosecution was unable to proceed on a second hearing date, specially fixed.

47. Similarly, the decision in Shannon v. McGuinness relied upon by the Applicant, does not advance its case. In Shannon, it was confirmed that the court had jurisdiction to dismiss the charges (albeit in different circumstances to those in this case), despite not hearing evidence. It was found that “hearing” the complaint did not require the court to have heard testimony. The decision appears to confirm the power of the District Court Judge to make the order she did in the instant case.

48. As for the Applicant’s reliance on Paget v. D.P.P., it is pointed out that this case related to a decision to strike out proceedings at pre-trial stage when the prosecution have failed to comply with disclosure requirements and before a

decision on jurisdiction in respect of the underlying offence had been made. It was not a case where the proceedings had been at least twice listed for hearing without the prosecution being able to proceed.

49. It is further recalled that in D.P.P. v. Paget, where the order dismissing proceedings was quashed, this occurred in circumstances where the matter was at pre-trial stage and the jurisdiction of the District Court to deal with the substantive matter had not been established. Nonetheless, it was recognized in Paget that in an appropriate case, the District Court enjoyed a jurisdiction to dismiss for want of prosecution in respect of a case where the prosecution cannot proceed in a previously fixed summary trial.

50. As found in Paget, in exercising this jurisdiction, the District Court should weigh or balance the position of the accused against that of the prosecution.

On the authority of D.P.P. v. Paget, the lawful exercise of a power to dismiss requires the District Court Judge to conduct an exercise in considering the public interest in ensuring that crime is prosecuted and to weigh it against the accused’s rights including the right to a decision in accordance with law without undue delay.

51. From the authorities referred to and the arguments rehearsed before me, I am quite satisfied that the District Court Judge has a power to dismiss proceedings without hearing evidence when the prosecution is not able to proceed on the assigned hearing date (D.P.P v. Ní Chondúin). It seems to me that the power to dismiss in circumstances where facilities adequate to allow a case to proceed are not available is a necessary part of the Court’s armoury in ensuring fair process and in providing a remedy in cases of delay of a nature that undermines rights of due process and inimical to the proper administration of justice. This is so whether the fault lies with the Court Services in failing to schedule the sitting in a court with video-link facilities, the D.P.P. in failing to communicate effectively as to the facilities required to enable appeal to proceed or the State in failing to adequately fund the provision of necessary infrastructure. The fact that the prosecution cannot proceed is the material consideration, with the reason for this being of less importance.

52. The primary focus of the Applicant’s case before me, in clear reliance on Paget, was that in deciding to dismiss the prosecution in this case, the District Court Judge failed to make due enquiry and properly conduct a balancing exercise to determine whether due process and the proper administration of justice required the dismissal of the proceedings notwithstanding the public interest in ensuring that crime is prosecuted.

53. I have not been persuaded that the Applicant has established on the facts of this case, however, that there was a failure to duly enquire. This is clearly not a case in which there was no enquiry by the District Court Judge for the purpose of assessing whether to dismiss. Indeed, while it is conceded that there was some enquiry conducted in this case, it is contended that it was inadequate.

54. From the transcript, I am satisfied to conclude that the following was apparent to the District Court Judge before she refused to adjourn the trial listed for hearing before her and dismissed the matter, namely:

I. the Respondent was not agreeing to the adjournment application and the Court was aware that there was no consent to an adjournment;

II. the offence was a contested s. 3 assault being tried summarily;

III. the matter had been before the court on 5 or 6 occasions, including a previously fixed hearing date, and had not been able to proceed because the Complainant was incapacitated;

IV. the matter had last been before the Court in January, 2023 – some three months previously when the Complainant was unable to attend to give evidence and the matter was transferred to Galway;

V. the matter had been specially fixed for hearing in Galway to afford the complainant an opportunity to give evidence via video link but those facilities were not available on the assigned date notwithstanding a period of some three months’ notice;

VI. the Respondent was in court and present with his solicitor, privately retained (and therefore at considerable expense), ready to meet the case against him;

VII. both the Respondent and his solicitor had travelled for the hearing in order to facilitate the conduct of proceedings using video-link facilities;

VIII. there was no suggestion that any of the passage of time or failure to proceed was attributable to the conduct of the Respondent;

IX. the proposed date later that week was inconvenient to the Respondent’s solicitor due to prior court commitments which meant that an early and fair opportunity to conclude the case had not been identified, despite the matter being put to second call.

55. The foregoing were relevant considerations each of which informed the balancing exercise conducted by the Judge. It is suggested that the District Court Judge should have made further enquiry in relation to the seriousness of the injuries sustained but it cannot be gainsaid that the Judge knew the matter was being tried summarily and there was no impediment placed on the Applicant’s representative in court bringing any additional details considered relevant to the attention of the Court.

56. The Applicant contended in submissions that the District Court Judge erred in attributing blame to the Prosecution when the Applicant’s position was that the failure to make available video-link facilities was outside the Applicant’s control. While the District Court Judge observed that the failure to ensure that facilities were available did not appear “capable” and this might be construed as critical of the Applicant in failing to properly communicate its requirements, it could equally be considered critical of the Courts Service in failing to arrange court business in a manner which ensured the availability of video-link facilities for some portion of the day.

57. In my view, the fact that the District Court Judge expressed herself to be less than impressed by the failure to ensure that facilities were available for a specially fixed matter does not mean that her decision to dismiss was an improper reflection of a dissatisfaction with the efforts made on behalf of the D.P.P. She was fully entitled to take a dim view of an accused person being summonsed to attend before the Court repeatedly without the matter being able to proceed, regardless of where the fault lay, that is so long as it did not lie with the Respondent.

58. Notably, insofar as criticism of the Prosecution might be inferred, the Applicant’s representative in court did not avail of the opportunity to explain what efforts had been made and why it could not fairly be concluded that there was a want of capability or competence on the part of the Applicant in the

conclusion of the prosecution or that adequate opportunity had not yet been afforded for the prosecution of the case. Indeed, he told the Court that it was “assumed” that video-link facilities would be available. It is not clear who assumed this and what enquiry, if any, was made or what communication there had been to ensure that facilities would be available.

59. While the Court was not informed as to the efforts made by the Applicant to ensure that video link facilities were available and was not informed that a trial of the facilities had been undertaken, this was not through any want of opportunity afforded to the Applicant to bring relevant matters to her attention.

Indeed, the evidence before me goes no further than to confirm that there was a trial or “dry-run” of the video link which in itself is not particularly illuminating. There is no record of any communication with the Courts Service to ensure that the matter was listed in a court room with video-link facilities and no detail is provided in relation to the circumstances in which the dry run was organized and so it seems that there was little the Applicant could urge that was not known to the District Court.

60. Crucially, no matter how cursory or terse the enquiry conducted may have appeared, the Applicant’s representative in court was afforded every opportunity to make such representations as he wished. While seeking an adjournment it is apparent from the transcript that he did not press his application strongly, did not refer to the dry-run carried out and indicated that he was in the hands of the court in a manner that acknowledged that the Court had a range of options open which included the adjournment suggested on behalf of the Applicant but also, self-evidently, included a power to strike out or dismiss.

61. On the other hand, the clear inference from the representations made in court on behalf of the Respondent was that it was being gently urged on the court that the charge should be dismissed. This was the import of repeatedly reminding the District Court Judge that the Respondent was “here” and pointing out that the matter had been before the court on five or six occasions, the Respondent was blameless in delay, the matter was specially fixed and the transfer application to facilitate the prosecution had been “acceded to”.

62. It is obvious that these factors were being urged because they were supportive of a decision to dismiss. It also seems to me that the Applicant’s representative in court either understood this reality or should have understood this reality.

63. The Learned District Court Judge concluded that adequate opportunity had been provided to prosecute the charge against the Respondent following an enquiry into the circumstances of the case. During this enquiry a range of relevant factors were identified and the District Court Judge afforded an opportunity to the parties present to be heard in respect of the fact that the matter was again not able to proceed and the Court was considering the options open to it in those circumstances.

64. While the consideration given was not prolonged or elaborate, based on the factors outlined at para. 54 above as elicited by the District Court Judge on enquiry before making her decision, I am nonetheless satisfied that the Judge considered whether and to what degree weight ought to have been accorded to the public interest in ensuring that crime is prosecuted. This much is clear from her reference to “adequate opportunity” having been afforded.

65. Ultimately, it falls to the District Court Judge to administer justice and no matter what the reason for an inability to proceed, the fact remains that the Respondent had been caused to attend on multiple occasions in Court on a summary charge (albeit arising from a relatively serious incident) without the prosecution against him being concluded. This was through no fault of his and in circumstances where he was ready to answer the case. Where the rights of the individual accused will, of necessity, enjoy primacy in such situations and where a balancing process need not be prolonged or elaborate, it seems to me that a balancing exercise took place in this case which was adequate in all the circumstances.

66. I have concluded that the Applicant has not established that there was a failure to consider the public interest in ensuring that crime is prosecuted and in deciding the correct balance to be struck between competing rights on the facts of each case in this instance. A range of relevant factors were established by the District Court Judge upon enquiry before she exercised a jurisdiction to dismiss such that I do not find that the Applicant has discharged the burden of establishing that the jurisdiction to dismiss was unlawfully exercised by reason of a failure to properly enquire into the circumstances and consider the application for an adjournment before refusing it and dismissing the proceedings.

67. As for the rationality of the decision, it is noteworthy that the delay in this case is more significant than in Ní Chondúin, albeit that the precise length of delay (a period then already exceeding two years) was not referenced in the exchange before the District Court Judge or in her ruling in this case. The position here differs only in that the prosecution could not proceed because of factors which it is claimed were beyond the control of the prosecution and for which they cannot be held responsible, namely the availability of video-link facilities. It should be recalled, however, that the availability of video-link facilities is part of the infrastructure of the court system, enabling the administration of justice in circumstances where a witness is unable to attend in court. If facilities are not available, for whatever reason, it is undermining of the public interest in ensuring that justice is concluded in a timely manner and may be reasonably relied upon in conjunction with the consideration of the other facts and circumstances of a case in dismissing a prosecution.

68. I am not persuaded that the fact that it was not the role of the D.P.P. to provide video-link facilities is material when the objective of a Judge is dismissing a case which has on at least two occasions not been in a position to proceed, through no fault of the Respondent who presents with his solicitor to answer the case on each occasion, is ensuring that justice is concluded. It is not a feature of the case-law that the D.P.P. must be responsible for the fact that the case cannot proceed if a dismissal of proceedings is to be rationally justified.

The critical consideration is that the case cannot proceed and while in exercising a discretion a court may well consider why this is, the existence of a reason outside the control of the prosecution is not an answer.

69. In exercising a power to dismiss, I do not construe the decision of the District Court as importing culpability to the D.P.P. as apprehended on behalf of the Applicant. Rather the Court relied on the incontrovertible fact that, due to the lack of video facilities, the prosecution could not proceed, yet again, despite the case having been specially fixed. While there was an explanation for the unavailability of the prosecution witness, this does not change the fact that the necessary prosecution evidence was not available to the court on the assigned hearing date. It is significant that this was not the first time the prosecution could not proceed on the same basis. These facts, regardless of blame or culpability, were sufficient in my view to provide grounds for the decision made.

70. While the District Court had other options such as striking the case out or adjourning it, the Court also had an option to strike out the charge or dismiss the prosecution. The mere fact that the court within jurisdiction elected to make the more final of these orders or indeed that another judge might have reached a different decision on the same or similar facts does not render the decision properly amenable to a quashing order in judicial review proceedings. Nor is the fact that the rules do not speak of the making of an order of dismiss in these circumstances determinative because that would be to ignore the dicta in both Ní Chondúin and Cleary where it was held that a District Court was entitled to dismiss a charge without hearing evidence when the prosecution was not able to proceed.

71. A judge must weigh competing public interests which include but are not limited to the public interest in prosecution. The Court is entitled to dismiss where a prosecution does not proceed due to the unavailability of courtroom facilities in like manner to other factors such as the unavailability of a witness through nonappearance. The District Court Judge had jurisdiction to make any order necessary for the fulfilment of the constitutional obligations of fair trial and fair procedures, including an order dismissing proceedings. The matter was one for judicial discretion applied judicially and rationally.

72. In circumstances where an enquiry was conducted with a view to deciding on the appropriate response to the fact that the prosecution could not proceed and a balancing exercise carried out, I am satisfied that where the matter had been listed on several occasions, had previously not proceeded to hearing due to the absence by reason of incapacity of the complainant, had been specially fixed and could not proceed on the assigned hearing date because necessary video-link facilities were not available to permit the evidence of the complainant to be taken, then the

decision to dismiss the proceedings was one which it was open to the District Court Judge to make and was sufficiently justified in all the circumstances. The reason given by the Judge in making her dismissal order was clearly centred on the fact that the prosecution could not proceed on that date, against a particular background as made known to the judge.

73. A basis for the exercise of a power to refuse an adjournment and dismiss a charge existed in this case. It has not been established that the District Court Judge acted in excess of jurisdiction in so doing or that the exercise of the power to dismiss fails a rationality test.

Final Observations

74. While it is unclear whether the summons was available to the District Court Judge on the Court file when making her ruling such that it cannot be concluded that she had regard to the extent of delay in this case, it is a fact that more than two years had already passed from the events giving rise to the prosecution. By the time the matter came on before me, more than four and a half years had passed.

75. I do not know whether efforts were made to expedite these proceedings, but sight should not be lost of the fact that the underlying proceedings are summary in nature and should normally be prosecuted with expedition. Over the course of 18 months after the service of a summons on him the Respondent was available at all material times to meet the charges, but the prosecution case could not proceed for a variety of reasons. It is therefore a matter of concern and relevant to the exercise of a discretionary power to grant relief by way of judicial review, that the relief sought in these proceedings must be for the purpose of continuing with the prosecution of a summary offence which occurred nearly five years ago as at the date of the hearing before me and this

decision. Such a long period of time clearly raises an issue as to whether a trial at this remove could be in accordance with the requirements of constitutional justice in this case.

76. As I am satisfied that the dismissal order made was within jurisdiction, it has not been necessary for me to decide whether it would be appropriate to exercise discretion to grant relief for the purpose of continuing with the prosecution of a summary offence which occurred nearly five years ago had the Applicant established that the Order made was ultra vires in this case.

Where the parties did not address me on the discretionary nature of my jurisdiction and expressly left over the question of remittal pending my

decision in the first instance on the question of certiorari, it is neither appropriate nor necessary for me to say anything further beyond signaling that delays of this nature will rarely be acceptable.

CONCLUSION

77. For the reasons set out above, I have concluded that the Applicant has not established an entitlement to the relief sought and this application by way of judicial review should be dismissed. On the facts of this case, it cannot be concluded that the Applicant has discharged the burden of establishing that the District Court Judge erred as to her jurisdiction by failing to conduct an enquiry and carry out a balancing exercise weighing competing interests in reaching her decision. Nor can I conclude that the power to dismiss was unreasonably exercised. I am satisfied that it was an option properly open to the Judge in circumstances made known to her and that she adequately explained her decision.