High Court refuses remittal for retrial where autrefois acquit plea bars new trial due to trial impropriety.

THE HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 764

RECORD NUMBER: 2023 / 322 JR

BETWEEN

ALLAN MCCARTHY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Ms Justice Denise Brett delivered on the 4th day of December 2025.

Application:

1. This is an application for judicial review seeking Orders of Certiorari quashing convictions and sentences imposed on the applicant by Swords District Court on the 6th of March 2023, following prosecution by the respondent for offences under the Road Traffic Acts.

2. The respondent conceded that Orders of Certiorari were appropriate but invited the Court to remit the matter back to the District Court for full retrial. No opposition papers have been filed in respect of the applicant’s claim. Any remittal however was strongly contested by the applicant, who argued he was entitled to avail of the special plea of autrefois acquit and there should be no new hearing. As an Order of Certiorari is no longer in issue, this judgment concerns itself only with that single issue - whether or not to remit the matter to the District Court for full retrial.

3. For the reasons which follow, I have concluded that the applicant’s trial was conducted otherwise than in due course of law and that the applicant was in peril of conviction in his trial such that the special plea of autrefois acquit is available to him. This acts as a bar to remittal. I therefore decline to remit the matter to the District Court for retrial. If I am wrong in this conclusion, in the alternative, I decline to remit the matter for rehearing in the exercise of the Court’s discretion, in all the circumstances of the case.

Background:

4. From the uncontested papers filed in the application, it emerges that the applicant is a serving member of An Garda Siochana who was prosecuted in Swords District Court on the 6th of March 2023 on foot of 3 summonses for offenses under the Road Traffic Acts, namely:

(a) dangerous driving: s.53 of the Road Traffic Act 1961 (“the 1961 Act”);

(b) driving under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle he was driving: s.4 (1) of the Road Traffic Act, 2010 (“the 2010 Act”); and

(c) exceeding the permitted concentration of alcohol in the urine: s.4 (3) of the 2010 Act.

5. The offences were said to have been committed on the 14th November 2021, when the applicant was on duty, driving an unmarked official garda car which was involved in a road traffic accident on the off ramp of the M1.

The Trial in the District Court:

6. At trial, the applicant pleaded not guilty to all charges.

7. This Court has had the benefit of seeing the documents furnished by the prosecution to the defendant in advance of the trial, exhibited in the applicant’s grounding affidavit. These included the statements of the various intended witnesses and photographs of the scene. Eight witnesses gave evidence for the prosecution at trial and were cross examined by Counsel for the applicant. An overview of their evidence was set out in the Statement of Grounds in these proceedings, to give context to the legal submissions made before the District Court. This included evidence by four civilian witnesses, three of whom gave their view as to the circumstances of the accident, the applicant’s driving and his presentation at the time. The fourth was the ambulance attendant whose evidence dealt with the condition of the applicant after the accident, together with confirming he was unable to leave with the applicant for hospital while awaiting the arrival of technical specimen-collecting equipment. Four Garda witnesses gave evidence, including the prosecuting sergeant. All four had attended at the scene of the accident. They were involved in collating evidence grounding potential offences, including taking a preliminary breath specimen to test for alcohol limits and arranging for an oral fluid specimen in order to test for the presence of drugs. One accompanied the applicant in the ambulance to the hospital.

8. At the conclusion of the prosecution case, Counsel on behalf of the applicant made a number of lengthy submissions, seeking a direction of ‘no case to answer’. The submissions contained both legal or technical arguments and assertions of evidential shortcomings or omissions. Briefly synopsizing, they included contentions of:

• A failure to serve a fixed penalty notice which a person is entitled to receive in advance of any prosecution under s. 4 (3) RTA 2010 (at (c) above in respect of the applicant). This absence was conceded by the respondent and the charge ultimately struck out by the trial judge.

• Erroneously treating the applicant as a “specified driver” (within the meaning of the 2010 Act) such that lower limits of concentration applied for testing at the scene.

• Inadequate invocation by the relevant garda witnesses of the statutory basis for requiring preliminary samples under s. 9 of the 2010 Act.

• Unlawful detention at the scene without the applicant being arrested or told he was no longer at liberty.

• Conflict of evidence as between the prosecution witnesses themselves, in particular as between the fire brigade officer and the civilian witnesses.

• Inadmissible hearsay regarding conversations on consent for the taking of the necessary specimen (blood or urine) under s. 14 of the 2010 Act.

• Whether, in the absence of legal assistance at the scene, there is an obligation on a garda sergeant to outline the nature and consequences of providing different samples for testing (blood or urine).

• As the s. 4 (3) was conceded by the DPP, the facts and sample underlying that charge ought not be used to ground the s. 4 (1) charge. As the applicant had been acquitted on the s.4 (3) charge, he was entitled to plead autrefois acquit in respect of the same facts and sample also going to ground the s. 4 (1) charge.

• The absence of proof that a complaint was made within 6 months of the offence to ground the summons, as required by the Petty Sessions (Ireland) Act 1851.

9. While the charge under s.4(3), at (c) above, was conceded, the remaining submissions were all challenged in full by the respondent.

10. It is common case that, at the conclusion of the applicant’s application for a direction, the trial judge enquired as to whether the applicant had any previous convictions (the applicant had none), and what disqualification applied, before proceeding directly to dismiss the s. 4 (3) charge, convict the applicant of both of the remaining offences and impose sentences of fines and mandatory disqualifications.

11. A number of matters are not in dispute. It is common case that the District Court judge actively engaged with each of the parties in the course of making their respective submissions but that he did not make definitive determinations on which of the submissions advanced to him by the applicant he did or did not accept (save for pronouncing the summons in order). It is also accepted that he did not provide any reasons or hear any mitigation following conviction, in advance of imposing sentence. Additionally, Counsel for the applicant emphasized to this Court that the applicant had not had the opportunity to go into evidence, notwithstanding that the trial judge had earlier suggested he could do so when engaging in various submissions, including conflicting evidence or an alternative explanation for the applicant’s demeanour or manner of driving.

Arguments advanced (in brief):

1. DPP

12. Counsel for the respondent acknowledged what he described as ‘the want of reasons’ in the trial judge’s actions, similar to the fatality in the convictions overturned in O’Mahony v Ballagh [2002] 2 IR 411 (“O’Mahony”), together with the trial judge’s failure to hear mitigation in advance of imposing sentence. Counsel highlighted civil cases which confirmed reasons should accompany a decision, their extent depending on the facts of a particular case (Mallak v Minister for Justice [2012] 3 IR 297; Kenny v Coughlan [2014] IESC 15; Kelly v Commissioner of An Garda Siochana [2023] IESC 47).

13. The respondent contended O’Mahony was ‘on all fours’ with the instant case. There, that applicant had also been before the District Court on a drink driving offence. The Supreme Court in that case held (at page 416): “at the conclusion of the State’s case the applicant and his legal advisers were required to decide whether they should go into evidence or not. To make that decision it was essential to know which of the arguments were accepted and which rejected” and further that: “every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which of the arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so doing”. The Supreme Court concluded that in failing to rule on the arguments made, the judge “fell into an unconstitutionality”, such that “that the appeal must be allowed and the matter remitted to the District Court for rehearing”.

14. The respondent argued O’Mahony was decisive, as, similarly, no determinations were made nor reasons given on the submissions advanced on behalf of the applicant in this case. The respondent thus conceded quashing the convictions and sentences imposed but argued that remittal of the matter for full retrial was similarly appropriate.

15. The DPP argued the trial judge commenced and conducted the trial within jurisdiction but ‘fell out of jurisdiction’ (State (Holland) v Kennedy [1977] IR 193 (“Holland”)) following the submissions advanced at the end of the prosecution case when he then proceeded directly to convict and impose sentence. Any decision made by a trial judge outside his jurisdiction is void ab initio and therefore a nullity such that the special plea of autrefois acquit was not available to this applicant, Counsel argued.

16. On the exercise of this Court of any discretion, the respondent argued for such exercise in favour or remittal on the basis inter alia that the public interest in prosecuting offences under the drink driving code is accentuated in the instant case where the offences are alleged to have been carried out by a serving garda driving an official garda car and the Court should exercise its discretion in favour of remittal.

2. Applicant:

17. Senior Counsel for the applicant rejected any narrowing of the issues justifying quashing the decision of the District Court. The applicant was successful in this application simpliciter and in this regard he was entitled to rely upon all of the grounds set out in his Statement of Grounds, not just the lack of any determination on submissions made or reasons therefor, as contended by the DPP. In particular, he referenced the additional failure of the trial judge to permit the applicant go into evidence before proceeding to conviction.

18. In essence, while not abandoning any ground, Counsel argued four key errors in the trial judge’s conduct of the trial were fatal, sufficient to quash the applicant’s conviction:

(a) a failure by the trial to give definitive rulings, or reasons therefor, on each of the individual submissions advanced to the court, in the absence of which the applicant could not know why particular points failed, for the purposes of an appeal. Such absence had also left a vacuum for any decision by the applicant to go into evidence.

(b) no overall decision on the application for a direction (or any reasons therefor) was expressly given.

(c) the applicant was deprived of the opportunity to go into evidence by the progression to conviction, notwithstanding the trial judge having alluded to the possibility of him doing so during submissions. The applicant was thereby denied basic fair procedures and the audi alterem partem principle was breached.

(d) sentence was imposed immediately following conviction, without hearing mitigation.

19. In setting out his grounds seeking the relief of Certiorari, both in his Statement of Grounds (paragraphs xvii and xx) and written submissions (paragraphs 19 (a) and (b) and paragraph 34), the applicant referenced the trial judge acting in excess of his jurisdiction among the diverse complaints made. The applicant did not rely on any assertion of exceeding jurisdiction in the course of oral argument before the Court, where Counsel firmly contended the errors of the trial judge were errors within jurisdiction but were so fundamental as to render the trial ‘a trial otherwise than in due course of law’. The applicant was at all times in peril of conviction, he contended. The applicant challenged the conduct of the trial at its end stage as being within jurisdiction but nonetheless warranting an Order of Certiorari, relying upon the Supreme Court decision in Sweeney v Brophy [1993] 2 IR 202 (“Sweeney”) where the Court quashed the lower court’s decision and concluded: “...certiorari is an appropriate remedy to quash not only a conviction bad on its face where a court or tribunal acts without or in excess of jurisdiction but also where it acts apparently within jurisdiction but where the proceedings are so fundamentally flawed as to deprive an accused of a trial in due course of law.... if there be a breach of the fundamental tenets of constitutional justice in the hearing or a failure to hear the evidence in this case, the trial can properly be characterized as one that has not been held in due course of law and any conviction arising therefore should be quashed so as to entitle the defendant to plead “autrefois acquit”. (my emphasis added)

20. No particular issue was taken by the respondent on the applicant’s pleadings or written submissions. The Court takes the applicant’s position as advanced in oral argument in court.

21. Senior Counsel for the applicant distinguished the outcome in O’Mahony on the basis of the additional errors identified in this case, and the fact that the digital audio recording (DAR) of the District Court hearing had been available in full here (unlike in O’Mahony) and there was no suggestion that the DAR was in any way in conflict with the errors alleged by the applicant in his Statement of Grounds. In addition the issue of remittal, as a separate and distinct issue to allowing the appeal, did not appear to have been addressed in O’Mahony.

22. In the alternative, if the special plea is not available to him, the applicant argues that the facts of the case warrant the discretion of the Court being exercised to refuse remittal inter alia due to the absence of fair procedures in any retrial where the applicant has materially shown his defence.

The law:

23. The power to remit a matter for fresh determination following an Order of Certiorari is set out in Order 84 rule 26 (4) of the Rules of the Superior Court, which clarifies that, following an Order of Certiorari, a court has the discretion to remit or not: “(4) 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 .”

24. It was common case that guiding principles had been set out by McKechnie J. in the seminal case of Stephens v Connellan [2002] 4 IR 321 (“Stephens”), following his comprehensive review of the then authorities (at paragraph 58 of the judgment).

25. In brief, Stephens indicates that the reviewing court should consider which side of the jurisdictional line the error(s) justifying quashing the lower court’s order falls. If the reviewing court determines the impugned error was made outside of the lower court’s jurisdiction (either from the outset or becoming so in the course of the trial), then any order made by the lower court is no order at all, being void ab initio, and the defendant was never in lawful jeopardy or peril of conviction. Remittal for full retrial after quashing therefore arises, subject to the discretion of the reviewing court to decide otherwise. However, if the reviewing court determines the impugned impropriety was made within the competent jurisdiction of the lower court but there was a fundamental error in the exercise of that jurisdiction in the conduct of the trial, such that an applicant was considered in lawful jeopardy or peril of conviction during the lower court’s hearing, then quashing the lower court’s order amounts to an acquittal and the special plea of autrefois acquit is available to that applicant and remittal is not permissible.

26. It is noteworthy that McKechnie J also acknowledged the “wide divergence of judicial views as to what correctly should be described as an error made within jurisdiction as distinct from an error made in excess of jurisdiction”.

27. It seems to me that I must adopt a two-step approach: firstly, the Court must identify whether or not the special plea of autrefois acquit is available to the applicant as, if so, this will “without more, determine the issue” (Stephens) and no remittal is permissible. Secondly, if such plea is not available, the courts discretion under O. 84 r.26 (4) still falls to be considered before remittal is directed.

The special plea:

28. A plea of autrefois acquit arises in criminal law where it is subsequently found by a reviewing court that an applicant had been in jeopardy or peril of conviction during an original trial, such that he will not be returned for a rehearing if a conviction is subsequently quashed. If the applicant was never truly in such jeopardy, this special plea is not available to him or her.

29. Such special plea will not be established based on an order made “in excess of jurisdiction or without jurisdiction, because such an adjudication is no adjudication at all” (The State (Tynan) v Keane [1968] IR 348)(“Tynan”)) but is available where the lower court acted “apparently within jurisdiction but where the proceedings [were] so fundamentally flawed as to deprive an accused of a trial in due course of law” (Sweeney above).

30. However, there is no clearcut authority establishing consistent factual circumstances from which a dividing line to determine remittal or no remittal premised upon jurisdiction can be ascertained, to establish if the special plea is available to an applicant. Any such task is notoriously difficult to determine (State (Keeney) v O’Malley [1986] ILRM 31 (“O’Malley”)). A reviewing court must look to the individual circumstances of a case.

31. The following error(s) have been found to warrant certiorari and re-hearing by virtue of vitiating jurisdiction such that the impugned order of the lower court was void:

• A failure to stay within the bounds of a jurisdiction conferred by statute – i.e. a failure to establish an essential pre-condition to the issue of certificate in respect of sentencing a child (Holland).

• An incorrect ruling that an accused must give evidence himself before he could call another witness: Singh v Ruane [1989] IR 610 (“Singh”).

• The refusal of an adjournment, with the consent of the prosecution, for the purpose of a solicitor instructing Counsel: Grennan v Kirby [1994] 2 ILRM 199 (“Grennan”).

32. Previous courts have held the following to be error(s) identified in the conduct of the trial which were sufficiently fundamental to warrant an order of certiorari but nonetheless errors made within jurisdiction such that no re-hearing arose:

• the absence of definitive rulings or reasons on legal submissions (O’Mahony).

• the omission by the prosecution of an essential proof (O’Malley).

• the wrongful admission of evidence in the course of an appeal to the Circuit Court without which evidence the ingredients of the offence could not be established (O’Malley).

• incorrect rulings, such as inviting the prosecution to treat its own witness as hostile and a finding of contempt (Sweeney).

• interference in the conduct of the trial, also (Sweeney).

• The refusal of an adjournment for the purpose of procuring legal representation (Stephens) and O’Brien v DPP [2019] IEHC 415 (“O’Brien”).

• Absence of fair procedures where different evidence was given at a time when the applicant was not present and when subsequently present in court where the applicant was unrepresented (O’Brien).

33. Cases where the jurisdictional issue was not to the fore in the ultimate determination or was decided against an applicant but remittal was refused in the exercise of the court’s discretion or in the interests of justice include:

• Where an applicant had already been detained for a substantial period, notwithstanding a sentence in excess of the maximum permitted by statute had been imposed which would render the District Court order null and void. Sheehan v O'Reilly 1993 2 IR 81 (“Sheehan”).

• increasing a custodial sentence in the absence of legal representatives where matters were taken into account which ought not have been Nevin v Crowley [2001] 1 IR 113 (“Nevin”).

• refusing an application to acquit after the prosecution case without reasons and a refusal to permit further submissions after the defence had given evidence Fitzgerald v O’Neill [2008] IEHC 416 (“Fitzgerald”).

34. The most recent review of the law is found in McGonagle v District Judge for District No. 1 [2023] IEHC 207 (“McGonagle”). That case also concerned an applicant who had been prosecuted for drink driving. Reference to a previous conviction contained in a statement previously made by a sergeant who gave evidence in the case had erroneously been included in the District Judge’s decision where no such evidence had actually been adduced during the trial, nor would it have been admissible had it been attempted. It was also incorrect.

35. Having reviewed the authorities, Barr J stated, at paragraph 31:

“Having reviewed the authorities cited by Counsel in argument, the Court is satisfied that these establish that where a matter is properly embarked upon by a court acting within jurisdiction, but where in the course of the trial, the judge makes an error which results in the procedures becoming unfair, such error remains an error within jurisdiction.” And further, at paragraph 39: “I am satisfied from a review of the relevant authorities and from the principles set down in Stephens v Connellan, that where a court validly embarks on a hearing within jurisdiction, but makes an error which causes the proceedings to become fundamentally unfair, that is an error which entitles the applicant to an order of certiorari, but remains an error within jurisdiction; such that the applicant is entitled to rely on the defence of autrefois acquit”

36. Both parties addressed McGonagle in argument. Counsel for the applicant relied on McGonagle in full, arguing for its ‘strikingly similar’ circumstances and contending that this case similarly involved the procedures at trial becoming unfair. In seeking to distinguish McGonagle, Counsel for the respondent argued that no blame lay with the DPP in this case, as had arisen in McGonagle and that, if anything, the applicant was not fully absolved of blame where he had not intervened to seek the reasons from the District Judge at the time. He emphasized the desirability of a full hearing before another district judge such that this case fell ‘on the side of the line’ which justified remittal.

Decision on whether the special plea of autrefois acquit is available to this applicant:

37. There is no doubt in my mind that the District Court judge had competent jurisdiction to embark upon the hearing of the applicant’s trial. There is no complaint made about the conduct of the lengthy trial up to its concluding moments. There is no indication that the trial was not conducted with the appropriate probity and propriety by the trial judge. It is common case that the trial judge meaningfully engaged with the submissions being advanced by both parties at the conclusion of the prosecution case, as they were argued. The complaints made all arose in what Counsel for the applicant described as a very fast-paced conclusion of the application for a direction, where the judge determined the case in full by convicting the applicant and proceeding to sentence without ruling on the submissions made or further hearing.

38. Thereafter however, the failure of the trial judge to determine reasoned rulings on the individual submissions made to him on behalf of the applicant; his failure to afford the applicant opportunity to be heard in evidence in advance of conviction, and his failure to hear mitigation in advance of sentence, in my view, amount to a breach of natural justice in the conduct of the hearing which rendered it so fundamentally flawed as to warrant an Order of Certiorari.

39. The applicant was denied the knowledge he required to determine if he would go into evidence in the absence of knowing the outcome of the individual submissions advanced on his behalf but also denied a right to be heard in the course of his trial. As a result, the applicant was denied a fair hearing. In the words of Barr J in McGonagle:

“the judge [made] an error which [resulted] in the procedures

becoming unfair”. The “court validly embark[ed] on a hearing within jurisdiction, but [made] an error which entitle[d] the applicant to an Order of Certiorari”.

40. I am persuaded by the applicant’s argument that the Supreme Court’s view expressed in Sweeney is apposite. There was “a breach of the fundamental tenets of constitutional justice in the hearing [and] a failure to hear the evidence in [the] case” in this case such that the trial can properly be characterized as one that has not been held in due course of law”.

41. Meenan J similarly applied the same passage from Sweeney in O’Brien to refuse remittal, finding that: “…the hearing was conducted before a court of competent jurisdiction but ….. the applicant was deprived of a fair hearing”.

42. In this case, in my view, the trial judge’s precipitous progression to conviction and in particular, the loss of an opportunity for the applicant to go in to evidence particularly where that possibility had actively arisen in the course of legal submissions (particularly on evidential discrepancies between prosecution witnesses and the possibility of an alternative explanation for the applicant’s demeanour or driving) amounted to an error in the conduct of the trial which meant the applicant’s trial was not conducted in due course of law. The errors are therefore ones which warrant an Order of Certiorari but ones which remain within jurisdiction (per Sweeney and McGonagle et al).

43. The prosecution in this case was comprehensive in that extensive evidence had been called and the prosecution witnesses had been fulsomely cross examined. In my view, it cannot be said that the proceedings were void ab inito. The fundamental breaches identified above against the background of the uncontested account of the trial indicates that the applicant was in jeopardy or peril of conviction in the course of the trial. The applicant is therefore entitled to avail of the special plea of autrefois acquit.

44. Insofar as the respondent argued this case is ‘on all fours’ with O’Mahony such that the Court is bound to follow its decision, I accept the argument made by Counsel for the applicant distinguishing O’Mahony. While the Supreme Court remitted the matter for rehearing in that case, there does not appear to have been any argument expressly on the issue of remittal per se. There was no indication of any contest on the question of remittal, as here. Further, as the applicant argued, the errors in this case, which went beyond those in O’Mahony, amounted to ‘a fundamental breach of tenets of constitutional justice’ including that the applicant was denied an opportunity to be heard in his own trial. In addition, the difficulty of having a comprehensive note of the District Court hearing in O’Mahony was an issue of concern for the Supreme Court, a concern which did not arise in the instant case due to the availability of the DAR.

45. I accept Counsel for the DPP’s argument that remittal for a fresh decision to be made is more the norm in civil cases where an Order of Certiorari is made by a reviewing court, as is evident in the cases cited regarding reasons. It was not in dispute that reasons ought to be evident in a judgment. However, there is no equivalent to the special plea of autrefois acquit open to an applicant in civil proceedings, as exists in the criminal sphere. The law provides this special plea and where it applies, it is a bar to remittal. I have found that the applicant is entitled to avail of it in this case. I therefore decline to remit the matter back to the District Court for re-hearing.

The Court’s discretion:

46. If I am wrong in my view of the error made in this case, or in distinguishing O’Malley such that I was bound to follow it, I will now consider the exercise of the Court’s discretion.

47. McKechnie J in Stephens indicates that: “in the exercise of this discretion the court will consider the justice and fairness of remitting and will do so in the context of the particular facts applicable to each individual case, including the conduct of all the parties or persons involved in that case” The “discretion may have a more general basis in broad fairness principles and in constitutional justice”.

48. Counsel for the DPP urged the Court to exercise its discretion in favour of remitting the matter for full rehearing before the District Court for a number of reasons:

• the seriousness of the offences.

• the public interest involved in the prosecution of crime was accentuated here as the applicant was an on-duty garda driving an official garda vehicle when the offences are alleged to have occurred.

• there was no blame to be laid at the feet of the prosecution in respect of this trial (as arose in O’Malley or Nevin) or alternatively, no more blame than could be attributed to the applicant, where his Counsel had not intervened to remind the judge before conviction of the opportunity of the applicant going into evidence.

• any intervening time lapse to the date of hearing was not relevant as no prejudice had arisen for the applicant, in circumstances where all of the penalties imposed by the District Court had been stayed, originally on foot of an appeal and thereafter on foot of an Order of this Court in these proceedings.

• the applicant will get the benefit of another first instance hearing.

49. Counsel for the applicant submitted that the following factors should persuade the court to exercise its discretion against any remittal for fresh rehearing:

• it would be contrary to fair procedures to subject the applicant to prosecution again. In this regard, both in the course of a fulsome trial with extensive oral evidence and cross examination and in his subsequent legal submissions to the trial judge, the applicant has ‘exposed his lines of defence’ such that he is now at a significant disadvantage. In the words of Nevin, citing the Supreme Court in Sweeney: “… the proper exercise of a courts discretion in such a case ‘would require that the matter should not be remitted to the District Court in circumstances where the applicant has endured enough…”

• the passage of time (Dawson v Hamill (No. 2) [1991] 1 IR 213 (“Dawson”)) where revealing a defence and costs were also relevant). Over 2.5 years had passed since the date of the alleged offence to the date of hearing this application, none of which delay was the fault of the applicant.

• the DPP, who is seeking remittal, had not put forward any opposition to the making of an Order of Certiorari, as was the case in Richards v O’ Donoghue [2017] 2 IR 157 (“Richards”), where remittal was refused.

• while the offences were serious, they were nevertheless all minor offences as a matter of law.

• applicant had incurred costs which would be set at nought in the event that a retrial was directed.

• a conviction carried significant consequences for the applicant, not only in respect of the mandatory disqualifications from holding a licence, but also the jeopardy he faced in terms of his employment and career.

Decision on the Court’s discretion:

50. The respondent’s contention that the societal benefit in the prosecution of crime may be somewhat heightened where the alleged offences are said to have been committed by a serving member of An Garda Síochána on active duty in not without merit. The public is entitled to expect high standards and have confidence in the members who serve on its behalf.

51. The applicant does not evoke the sympathy of the Court. However, he, as with every accused, is entitled to a trial in due course of law, encapsulating the principles of fairness and constitutional justice. In considering if prejudice in this regard might lie for the accused, I find it helpful to adopt the question the Court posed itself in Fitzgerald (Clark J): “whether the impropriety which occurred at the trial can be mended by a fresh hearing or an appeal or whether the accused will be prejudiced at that rehearing. Her opportunity to be acquitted in the first instance, had the hearing being fairly conducted, is lost and she is put in a less advantageous position than another accused appearing for the first time for a properly conducted trial”.

52. On the evidence adduced before me, I believe that this applicant could be similarly placed in a less advantageous position. There was extensive prosecution evidence adduced at trial, robustly tested on cross examination, and lengthy legal submissions advanced. The applicant’s line of defence has been revealed. He has shown his hand, identifying legal and evidential issues of concern. Any frailties in prosecution evidence can be identified and, with the benefit of the DAR, the opportunity to drill into points argued in the direction application and address as necessary any technical or evidential deficits identified in advance of a retrial exists. The bank of evidence on which the prosecution can proceed would be enlarged. The landscape in a retrial before the District Cout could be materially changed. The applicant has lost the opportunity of facing the charges against him wholly afresh at first instance.

53. The Court is therefore satisfied in the interests of justice, on balance, to exercise my discretion against remitting the matter to the District Court for retrial.