Court dismisses late appeal extension due to gross delay and public interest in timely criminal prosecution.

THE COURT OF APPEAL Record Number: 2025/272 Meenan J. Neutral Citation Number [2026] IECA 76 Collins J. Owens J.

Between/

SIDNEY JOHN SUTTON

Applicant -AND-

DIRECTOR OF PUBLIC PROSECUTIONS, AN GARDA SÍOCHÁNA, COMMISSIONER OF AN GARDA SÍOCHÁNA, MINISTER FOR JUSTICE, AND ATTORNEY GENERAL OF IRELAND

Respondents

JUDGMENT of the Court delivered by Mr. Justice Alexander Owens on the 23rd day of April 2026.

1. In this application, Sidney Sutton sought an order extending time to enable him to appeal against a decision of Gearty J. in the High Court. She refused him leave to apply for orders prohibiting his retrial on foot of an order made by this Court on 10 May 2021. That order set aside his conviction following a trial in the Circuit Court, and directed that he be retried by the Circuit Court. Her reasons for refusing leave to Sidney Sutton to apply for leave to apply for these orders of prohibition were set out in a judgment delivered on 2 July 2025 ([2025] IEHC 375). Her order was perfected on 3 July 2025.

2. Sidney Sutton’s application to this Court to permit him to advance a late appeal against the decision of Gearty J. is dismissed for the reasons set out in this judgment. The costs of the respondents to his application to extend time to appeal against the order of Gearty J. have been awarded against him.

3. This text is the corrected version of my ex tempore judgment delivered on 23 April 2026. The other members of the Court agree with this judgment

4. The effect of O.86A r.13 of the Rules of the Superior Courts (RSC) is that Sidney Sutton had 28 days from the date of perfection of the order of Gearty J. to appeal her decision to this Court. Sidney Sutton has established that he intended from the outset to appeal her decision. However, he was grossly out of time in attempting to lodge his appeal. On 6 November 2025 he filed an application to this Court for an extension of time to lodge this appeal. Therefore, he was obliged to apply to this Court for an order permitting him to bring a late appeal.

5. For this Court to accede to this application to extend time, Sidney Sutton must satisfy the test set out by the Supreme Court in Éire Continental Trading Co v.

Clonmel Foods Ltd [1955] I.R. 170. It is not enough for an intending appellant to show that he or she formed an intention to appeal a decision of the High Court within the 28-day period specified in O.86A r.13. An intending appellant must also show the existence of some reason for failure to appeal within time, such as a mistake; a mistake as to procedure is not sufficient to meet this requirement.

6. The third requirement of the test in Éire Continental is that an applicant for an extension of time to bring a late appeal must demonstrate that the proposed ground of appeal is arguable.

7. An appellate court also has a residual discretion to extend time for a late appeal to an applicant who, though unable to meet one or more of the three criteria, demonstrates that the totality of the circumstances justifies the grant of an extension of time in the interests of justice.

8. There is no suggestion that Sidney Sutton was not aware of the relevant time limit.

He had previously applied for leave to pursue judicial review proceedings to prohibit his trial in 2023. Gearty J. refused that application on 19 March 2024; ([2024] IEHC 155). He appealed against her refusal to grant him leave to this Court. That appeal was dismissed by this Court on 6 December 2024; [2024] IECA 303.

9. It is apparent from the statement of proposed grounds advanced by Sidney Sutton in these proceedings, and from both the statement of proposed grounds and the judgments of the High Court and of the Court of Appeal in his unsuccessful 2023 proceedings, that some of the issues which he sought to canvass in his 2023 proceedings have been repeated in these proceedings.

10. I am not satisfied that Sidney Sutton has demonstrated that he comes within the second or third limbs of the Éire Continental test. He has most definitely not demonstrated that the totality of the relevant circumstances establishes that, in the interests of justice, an extension of time to appeal against the order perfected on 3 July 2025 would be justified.

11. On the delay point, affidavits sworn by Sidney Sutton, on 6 November 2025, 16 March 2026, and 22 April 2026, aver that his time was occupied by other litigation which he is pursuing and that he did not receive a transcript of a hearing before the Circuit Court which took place on 19 June 2025 until 4 February 2026. This transcript recorded exchanges between counsel for the Director of Public Prosecutions and the Circuit Court Judge during a hearing on that date.

12. Those exchanges related to disclosure of forensic analysis material relevant to his pending criminal trial. They were incidental remarks; made in the course of Sidney Sutton’s application under s.4E of the Criminal Procedure Act 1967, to dismiss the prosecution. Page 16 of the transcript of that hearing shows that counsel for the Director of Public Prosecutions conveyed to the Circuit Court Judge that Sidney Sutton had been provided with full disclosure of such forensic material as the prosecution held, and that nothing further was available to give him. This position of the prosecution regarding the state of disclosure of forensic examination material was confirmed in response to a query from the Circuit Court Judge later in that hearing, as appears from pages 48 and 59 of the transcript.

13. Sidney Sutton was aware that this was the prosecution position in the Circuit Court on 19 June 2025 because he was present in the Circuit Court that day and those remarks were made in the course of his application to have the prosecution against him dismissed.

14. If Sidney Sutton wished to make a point in judicial review proceedings, or in the context of an appeal from the ruling of Gearty J. relating to what was said in the Circuit Court on 19 June 2025, he could have done so without producing an authenticated transcript of the exchanges which he refers to in his affidavits grounding his application to extend time for his appeal. Absence of a transcript of the proceedings in the Circuit Court on that date was not a good excuse for failure to put in his appeal from the judgment of Gearty J. in the High Court within the permissible time-frame.

15. There is no suggestion that Sidney Sutton was unaware of what was said during that Circuit Court hearing. There was nothing to prevent him from advancing whatever argument he wanted arising from these exchanges in the Circuit Court in his application for judicial review, or in his notice of appeal from the order of Gearty J.

He could have recounted what was said in the course of any exchanges during that Circuit Court hearing in an affidavit if he wished to contend that there was anything in them which merited an application for judicial review.

16. I was not impressed with Sidney Sutton’s suggestion that he was unable to bring his appeal in time because he was caught up in all of his other litigation. This was not a valid excuse for his failure to lodge his appeal within the permitted timeframe.

Furthermore, he has provided no satisfactory explanation of the long delay between the end of July 2025, when time to appeal expired, and November 2025, when his application to extend time to appeal was filed.

17. I was also not impressed by another excuse provided by Sidney Sutton for his failure to get his notice of appeal in on time. He claimed that his application to the Supreme Court to be permitted to appeal the previous refusal of leave impeded his ability to process his appeal against the ruling of Gearty J. I should point out that the application to the Supreme Court which he refers involved the usual documentsbased assessment by that court. That court issued its ruling on 19 July 2025. This could not have prevented Sidney Sutton from lodging his appeal against the second refusal to give him leave to bring judicial review within time.

18. Furthermore, waiting for a transcript of court proceedings has never been regarded by the courts as a good excuse for not putting in a notice of appeal on time.

19. I understand the point Sidney Sutton is making about the disc. This disc contained a recording of a 999 call. His case is that he was unaware until recently that he had been given this recording. The disc was provided to his then solicitors in 2020. This disc did not identify what it related to and he only became aware that a recording of this call was on it recently.

20. Sidney Sutton now has both this recording and the prosecution information relating to what forensic testing was or was not carried out in relation to the matters at issue in his forthcoming trial as part of disclosure. His complaints relating to those two matters do not disclose any basis on which the High Court could step in and give him leave to apply to prohibit his trial from proceeding. The High Court cannot oust the jurisdiction of the Circuit Court by the type of intervention which he seeks.

21. The test in relation to whether the High Court should give an applicant leave to pursue a judicial review remedy is set out in the judgment of Charleton J. in Esmé v.

Minister for Justice and Law Reform [2015] IESC 26. A point of law is only arguable for the purposes of the test of whether judicial review should be granted if that point could ”by the standards of a rational preliminary analysis, ultimately have a prospect of success.”

22. This test was applied in the judgment of Burns J. in Sutton v. Director of Public Prosecutions and Others [2024] IECA 303 at para. 17. This was the decision of this Court dismissing Sidney Sutton’s appeal in his first set of proceedings seeking an order prohibiting further prosecution of his Circuit Court trial.

23. The Esmé test is much the same as the “arguable ground of appeal” element of the test applicable to exercise of discretion to permit late appeals.

24. On examining the proposed grounds of appeal as set out in Sidney Sutton’s draft notice of appeal, it is clear that the Circuit Court has jurisdiction within the trial process to decide all of the matters which he wishes to raise in these proposed judicial review proceedings. He accepted that the Circuit Court has power to decide these matters during his oral submissions to this Court.

25. The legal position for many years now has been that issues of whether, as a result of the effect of matters such as: delay; non-disclosure; or loss of material of potential evidential assistance to the defence, it is safe to permit a trial to proceed, or for charges to be submitted for decision by a jury, must be decided by the trial court during the course of a criminal trial. If a conviction follows and it is contended that the trial court has erred in deciding any of those issues, that contention must be raised with the Court of Appeal on appeal from the conviction.

26. Sidney Sutton has not demonstrated an arguable case that the issues which he intends to raise in his application for judicial review cannot be dealt with by the Circuit Court in the course of the criminal proceedings. The law is that judicial review is an inappropriate remedy where the law provides that a forum exercising jurisdiction, such as the Circuit Court, has power to deal with an issue which a person seeks to raise on judicial review. The Circuit Court has been entrusted by law with Sidney Sutton’s trial. That Court has a duty to ensure that he gets a fair trial.

The assumption of the law is that he will receive a fair trial in that court.

27. Furthermore, it is also well established that it is inappropriate for the High Court to intervene in judicial review proceedings to correct errors of law by first instance courts or tribunals where the Oireachtas has provided for a right of appeal to an appellate court or tribunal to which has power to correct those errors.

28. Finally, it is well established that courts entrusted with jurisdiction to grant judicial review will not, except in very exceptional circumstances, intervene in intermediate stages of the process leading to a criminal trial, or during such a trial. The grounds relied on by Sidney Sutton in seeking leave to apply to prohibit his trial are certainly not the sort of exceptional matters which could justify such an intervention.

29. The specific issues which Sidney Sutton has identified to this Court relating to disclosure of the recording of a 999 call and the information provided by the prosecution to the Circuit Court during the s.4E application could not possibly form a basis for prohibiting his trial; nor could the other points which he seeks to make.

30. The submission advanced by Sidney Sutton to this Court was, in effect, a claim that the combined weight of his numerous arguments prevents the Circuit Court from giving him a fair trial. If this approach to judicial review represents good law, any defendant in a trial in the Circuit Court might, by raising a multiplicity of issues, all of which can be determined by that court, deprive that court of its jurisdiction, which the Oireachtas has conferred on it to conduct criminal trials on indictment. Courts entrusted with jurisdiction in judicial review are obliged to respect and give effect to the will of the Oireachtas in such matters.

31. The grounds on which Sidney Sutton seeks leave to bring judicial review, as set out in his application for leave dated 23 June 2025, do not meet the “arguable ground of appeal” element of the test set out in Éire Continental. Furthermore, they do not satisfy the test which determines whether leave should be granted to a person to bring an application for judicial review.

32. It follows from this, as night follows from day, that there is nothing in the proved circumstances relating to Sidney Sutton’s attempt to seek judicial review which could justify this Court in exercising its residual jurisdiction, to permit him to bring a late appeal in the interests of justice. For this Court to allow Sidney Sutton to pursue his intended appeal would serve no useful end of justice. To permit this matter to go any further would, to adopt a phrase used by O’Malley J. at para.68 of her judgment in Seniors Money Mortgages v Gately [2020] 2 I.R. 441 ([2020] IESC 3), be to “waste the time of the litigants and the court.” This passage is referred to and relied on in the written submissions filed on behalf of the Director of Public Prosecutions.

33. I should add that time limits are particularly important in judicial review proceedings. This is evidenced by the strict requirements which an applicant for judicial review who is out of time must meet before the High Court will permit an application for leave to apply for judicial review to proceed, as set out in O.84, r.21(3) and (4) of the RSC. The delay represented by the period between expiry of the time allowed for Sidney Sutton to bring his appeal to this Court and his initiation of this application to extend time was in the order of 3 calendar months.

34. Applications for leave to seek judicial review of the type which Sidney Sutton has pursued to date in his effort to prevent his retrial tend to slow up trials. This consideration is relevant in deciding whether or not to refuse an extension of time to an applicant to bring an application for judicial review which has the effect of delaying a criminal trial. In my view, this consideration is also relevant to exercise by this Court of its residual discretion to permit late appeals against orders of the High Court in judicial review proceedings, applying the Éire Continental jurisprudence.

35. The courts have a duty to ensure the effective administration of justice and not to permit use of court procedures to delay proceedings, particularly where those proceedings demonstrate no stateable legal point, as is the case here. In carrying out this duty, courts exercising judicial review jurisdiction over courts exercising criminal jurisdiction and over the exercise by the Director of Public Prosecutions of her functions and responsibilities, must keep in mind the public interest, which is that of society in general, in the timely prosecution of offences.

36. The interests of those who may be victims of crime are also relevant. They have a legitimate expectation that public bodies, including courts, will endeavour to ensure that criminal proceedings are prosecuted in a timely fashion to a conclusion represented by a verdict, whether that verdict is a guilty verdict or a not guilty verdict, and not to permit time-wasting on meritless points.

37. This consideration is especially significant in a serious prosecution, such as that on the charge faced by Sidney Sutton. It is clear that there is evidence which justifies his trial. That is established by the result of his s.4E application. The sooner that his trial proceeds to a conclusion, the better.

38. Finally, I observe that this is the second attempt by Sidney Sutton to persuade the High Court to intervene to prevent his retrial. So far, all of the grounds which he has advanced are misconceived efforts to get the High Court to exercise its judicial review jurisdiction in such a way as to usurp the jurisdiction of the Circuit Court. His submissions that he will not get a fair trial in the Circuit Court are mere assertions which have no evidential substance to back them up. They lack any legal merit.