High Court refuses judicial review stay, directing fresh Circuit Court appeal for road traffic offences.

THE HIGH COURT Record Number 2021/795JR [2026] IEHC 290

BETWEEN:

FRANCIS McGUINNESS Applicant

-AND-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr Justice Cian Ferriter delivered on 12 May 2026

Introduction

1. In these judicial review proceedings, the applicant seeks to bring to an end, by orders amounting in substance to a directed dismissal, a summary prosecution brought against him for road traffic offences alleged to have been committed in March 2013. The original trial of those offences resulted in a conviction in the District Court in January 2018 which the applicant appealed to the Circuit Court where, he says, he was orally convicted in July 2019 and where the Circuit trial judge refused or failed to conclude the case to sentence stage before her retirement in June 2021, resulting in his appeal still not being concluded over 8 years after his appeal to the Circuit Court was lodged.

2. The case raises questions which the Supreme Court (in the context of a determination of an application for leave to appeal against a refusal of leave to the applicant to apply for judicial review) has determined to be questions of public importance, including the question of the legal effects, if any, of an orally pronounced conviction in a District Court appeal.

Material facts

3. These judicial review proceedings arise out of a most unusual set of events.

4. The background can be briefly summarised as follows. On 29 January 2018, the applicant was convicted at Swords District Court of two road traffic offences committed in March 2013, namely driving without holding a driving licence and driving without insurance. He was fined and disqualified from holding a driving licence for a period of three years. The primary offence in issue was driving without insurance.

5. The offences were alleged to have occurred on 2 March 2013. The hearing in the District Court did not take place until 29 January 2018, almost five years after the alleged commission of the offences. It appears that the District Court prosecution was adjourned for a lengthy period pending the outcome of a test case which presumably had the potential to impact on the applicant's case.

6. The applicant lodged an appeal against the District Court convictions on 2 February 2018. The applicant in his original grounding affidavit in the proceedings sworn on 30 August 2021, states that the appeal "ultimately" came before Judge Keenan Johnson in the Circuit Court on 19 June 2018. The applicant applied for an adjournment because he had changed his legal team. The matter was put in for hearing by Judge Johnson on

5 July 2018 on a peremptory basis. The applicant contended that he was not in a position to proceed on 5 July 2018 as a result of a heart condition and the matter was adjourned as a result until 9 November 2018. The matter did not proceed on that date but was listed for hearing on 1 March 2019.

7. The Circuit Court affirmed the District Court convictions as a result of the applicant's non-attendance on 1 March 2019. An application was successfully made to reinstate the appeal, and the matter was reinstated to 15 March 2019. On 15 March 2019 the appeal was listed for hearing on 1 July 2019 on a peremptory basis against the applicant.

8. The appeal hearing commenced on 1 July 2019 before Judge McDonnell (“the Circuit trial judge”) and was adjourned part-heard for resumption on 9 July 2019. During the hearing on 9 July 2019, according to the transcript of the digital audio recording (DAR)

of the hearing, the Circuit trial judge indicated that she was "going to convict" the applicant and moved to a consideration of the penalty at the sentencing phase of the appeal. Counsel for the applicant sought a consultative case stated on the question of whether a driving disqualification was mandatory in circumstances where the applicant had some prior relevant convictions. The judge adjourned the matter to allow for submissions to be made on the consultative case stated question.

9. The applicant did not in fact file submissions in respect of the consultative case stated and the matter appears to have gone into abeyance. On 23 November 2020, the applicant's appeal and another similar case were listed for hearing. Neither the applicant nor his legal team were notified of the listing of his appeal on 23 November 2020 and they were, accordingly, not present at the hearing. Having heard from counsel for the parties in the other case, the Circuit trial judge declined to state a case and adjourned the other case for sentence on 11 January 2021 with the judge noting that a sentence still had to be imposed. It appears that the Circuit trial judge was aware that there was no presence of the applicant before her on 23 November 2020 and asked that the State/DPP notify the applicant of her decision and of the adjournment of the applicant's case to 11 January 2021. It appears that on 11 January 2021 the matter was adjourned (possibly due to Covid restrictions) to 12 April 2021.

10. On 12 April 2021, the matter came before another Circuit Court judge. As the applicant's original counsel in the matter was indisposed, another counsel stepped in for him on that date. During the course of the matter being mentioned, counsel for the applicant indicated that he understood that that the matter was in for sentence on the no insurance matter.

11. The case was adjourned to 19 April 2021 before the same judge. Counsel for the applicant indicated that his instructions were to seek to have the matter brought back before the original trial judge. During the course of exchange between the presiding judge and counsel for the applicant, the presiding judge said that the application to state a case had been refused. This came as news to the applicant and the legal team. The presiding judge enquired as to whether any other order had been made and was told there had not been any other order made. Counsel for the applicant requested that the matter be put back before the original trial judge. The matter was adjourned generally for that purpose.

12. It appears that the matter may have come back before a different Circuit judge again in July 2021 and was adjourned on that date to a date in October 2021.

13. In one of a number of mishaps which beset the process, it appears that the court’s criminal tracking system was not updated to record the fact that the applicant's appeal had been reinstated on 15 March 2019 and that the Circuit Court’s affirmation of the District Court conviction, made on 1 March 2019, had been vacated, with the result that statutory suspension of the applicant's disqualification in the District Court remained operative. As a result of this error, the record of conviction on the Garda PULSE database was not updated to reflect the fact that the appeal had been reinstated and the disqualification suspended. It appears that this led to the applicant being arrested on 7 July 2021 and, again, on 9 August 2021 for driving without insurance. It seems that the PULSE record was ultimately updated post 9 August 2021 but, notwithstanding this, that there was a further arrest in November 2021 of the applicant in relation to driving without insurance, notwithstanding the position that his disqualification for driving without insurance was suspended pending the determination of his Circuit Court appeal.

The applicant launches judicial review proceedings

14. The above sequence of events led the applicant to issue judicial review proceedings on

31 August 2021. The High Court judge who dealt with the leave application on that date directed that the leave application be put on notice.

15. The principal focus of the applicant's judicial review proceedings as instituted was on an alleged fundamental failure of fair procedures in the Circuit Court appeal hearing by the Circuit trial judge deciding not to make a case stated without notice to the applicant and in his absence, and on the arrests which had he maintained wrongfully occurred in July and early August 2021.

16. The High Court made an order in September 2021 for the release of the DAR of various hearings before the Circuit Criminal Court. It appears that the transcripts of the DAR recordings of the various Circuit Court listings were not finally provided until October 2022.

April 2022 developments in Circuit Court appeal

17. Meanwhile, another relevant development happened in the Circuit Court in April 2022 (following the launch of the judicial review proceedings). On 26 April 2022, the matter came before Judge Berkeley in the Dublin Circuit Criminal Court. Judge Berkeley said that she would make enquiries of Judge McDonnell in relation to the status of the appeal. The matter came back before Judge Berkeley on 28 April 2022. On that occasion, Judge Berkeley said that she had spoken to Judge McDonnell and that, as far as Judge McDonnell was concerned, the matter was finalised. Judge Berkeley therefore did not make any order on that date.

18. Notwithstanding the outcome of the listing before Judge Berkeley on 28 April 2022 as set out above, it appears that two orders were prepared and signed, one stating that an order was made by the Circuit Court on 28 April 2022 affirming the applicant’s conviction and sentence in the District Court, being a disqualification of three years from 20 April 2022 with the fines unchanged. An order was also prepared and signed which purported to reflect the Circuit Court making an order on 28 April 2022 affirming the conviction in respect of the no driving licence offence. It is not clear how these orders came into being.

19. The DPP ultimately brought an application under the slip rule to Judge Berkeley who made an order on 13 October 2022 under the slip rule confirming that she had made no order on 28 April 2022. That was an order made in respect of both of the purported 28 April 2022 orders. (It appears that these corrective orders were not drawn up and signed until 23 May 2023, following a request for sight of the orders by Hyland J who heard the contested leave application in the judicial review proceedings as originally constituted, on that date.)

20. Judge McDonnell retired in June 2022. The applicant's original counsel sadly passed away in November 2022.

Course of these judicial review proceedings

21. As noted, the principal focus of the applicant's judicial review proceedings as instituted in August 2021 was on the alleged fundamental failure of fair procedures in the Circuit Court appeal hearing by the case stated being decided without notice to the applicant and in his absence, and on the arrests which had he maintained wrongfully occurred in July and early August 2021.

High Court decision on original leave application

22. Ultimately, the High Court (Hyland J) heard the contested leave application on 23 May 2023. In an ex tempore judgment given the following day ([2023] IEHC 370), Hyland J refused to grant leave on the basis that, essentially, there was no order of the District Court to be quashed and rather what was sought to be quashed was an interim ruling in the course of an appeal hearing in circumstances where no final order dealing with conviction and sentencing was ever made due to the retirement of the Circuit trial judge. She rejected a belated attempt by the applicant on the day of the leave hearing to amend his statement of grounds to challenge what he maintained was a decision to convict him on 9 July 2019, on the basis that the amendment application was unjustifiably out of time and on the basis that the decision or ruling given on 9 July 2019 had no binding legal effect in any event.

Court of Appeal decision

23. The decision of Hyland J. was upheld by the Court of Appeal in a judgment of (Tara)

Burns J of 6 June 2024 (McGuinness v A Judge of the Circuit Court & Ors [2024] IECA 149).

24. In her decision on the appeal against the decision of Hyland J refusing leave to apply for judicial review, Burns J. upheld the High Court order refusing the applicant leave to seek judicial review and stated as follows (at para 10): “At no stage did Judge McDonnell make any formal Order in relation to this matter. While she indicated that she was satisfied that the offences were made out, she never imposed sentence in the matter and put the matter back for finalisation of sentence after she determined not to state a case.”

25. Burns J further stated (at para 19):

“Judge McDonnell has now retired and the Circuit Court appeal remains a live appeal. Accordingly, to be finalised, the appeal must be heard de novo before another Circuit Court Judge. While there was an indication from Judge McDonnell that she was satisfied of the appellant's guilt on the two charges before her, she never proceeded to sentence the appellant. The appellant argues that the fact that Judge McDonnell indicated she was going to convict the appellant has a legal significance. I do not agree. The appeal in the instant case was from the conviction and sentence imposed by the District Court. Judge McDonnell indicated that she was satisfied of his guilt on the charges preferred but she did not make any formal Order in the matter. The indication that Judge McDonnell was finding the appellant guilty of the offences had no binding effect in the absence of a formal Order in respect of same. There is no bar to another Circuit Court judge hearing the appeal de novo.”

Supreme Court decision

26. The applicant sought leave to appeal to the Supreme Court. The Supreme Court granted leave to appeal and thereafter allowed the appeal on the leave question, determining that there were points of law of general importance raised in the proceedings.

27. At para 21 of its Determination, the Supreme Court Panel dealing with the application for leave to appeal from the Court of Appeal stated as follows:

“It is undoubtedly the case that there has been an unhappy history to the procedural journey of this case through the Circuit Court. On reading the transcript however, it appears that the Circuit Court judge made various pronouncements which in ordinary language indicate that she was convicting the applicant and that she was then entering the sentencing/disqualification phase of the appeal. That interpretation would appear also to follow from the fact that she put a stay on her order of conviction when requested.”

28. At para 22, it stated:

“It is also unfortunate that the real question that the applicant seeks to place before this court, namely, whether the Court of Appeal was correct in stating that the indication by the Circuit Court judge “was finding the appellant guilty of the offences had no binding effect in the absence of a formal Order in respect of same” was not one that arises directly on the grounds set out in the statement grounding the application for judicial review. There was undoubtedly confusion created by the absence of the applicant from the day on which the case-stated issue was dealt with having heard submissions in an unrelated case. Further confusion also arose from what took place before the second Circuit Court judge and the orders which were subsequently made by that judge.”

29. The Panel determined as follows (at para 24):

“The Panel is satisfied that the issue of what is the status of an orally pronounced conviction by a judge of the Circuit Court hearing an appeal from the District Court and what, if any, are the legal effects of such a pronouncement gives rise to a matter of public importance. This is a matter that arises from the finding of the Court of Appeal referred to above. It is an issue that leads to questions as to whether the applicant has already been convicted and ought not to be retried again (autrefois convict) and/or whether, if so convicted it would be either lawful or fair for him, at this remove, to be sentenced by another judge of the Circuit. Court. The finding of the Court of Appeal would appear to be a definitive one and would apparently preclude any other application as to the status of the conviction being made in the District Court. The Panel also considers that it is in the interests of justice to allow an appeal on that point.” The applicant’s amended case

30. For the purposes of ensuring that those points of public importance were properly before the court, the Supreme Court directed the filing of an amended statement of grounds. Ultimately, I understand that the DPP consented to leave being granted in respect of the matters raised in this amended statement of grounds, strictly without prejudice to the arguability of those grounds and her right to oppose all of the grounds in full at the hearing of the judicial review.

31. In the statement of grounds, as amended, the applicant seeks an order of certiorari quashing what he terms was a conviction of him on 9 July 2019 in the Circuit Court. He also seeks an order of prohibition and/or an injunction restraining the Circuit Court from re-hearing his District Court appeal or from dealing with the matter other than by way of an order allowing the District Court appeal. He also seeks an order of mandamus directing that his District Court appeal be allowed in full.

32. A number of the original parties to the judicial review proceedings (including the Garda Commissioner and the Courts Service) were released from the proceedings and the matter proceeded before me with the DPP being the sole respondent.

The issues now before the court

33. The applicant contends that, as he was convicted of the no insurance offence on 9 July 2019, the matter cannot now be returned afresh to the Circuit Court as to do so would offend the principle of autrefois convict. He further contends that the cumulative circumstances of the trial process in the Circuit Court following the pronouncement of the conviction on 9 July 2019, including the delay in finalising the District Court appeal, constitutes a denial of his right to a fair trial in due course of law and his right to fair procedures, such that he ought not now to have to be put on the hazard of his hearing resuming in the Circuit Court.

34. While an issue was raised in the DPP's statement of opposition and in her written submissions to the effect that the application for judicial review as amended was out of time, following discussion with the court, this issue was not ultimately pursued in the hearing before me.

35. I will accordingly focus on the principal issues in the case, which embrace the two points of general importance identified by the Supreme Court panel in its determination.

These issues are the legal status, if any, of an orally pronounced conviction during a Circuit Court appeal from a District Court conviction (for ease, “the oral conviction issue”) and whether it would be appropriate to proceed with the matter afresh in the Circuit Court before another Circuit Court Judge at this remove (for ease, “the prohibition issue”).

The oral conviction issue

Facts

36. Before addressing the legal issues which arise in relation to this issue, it is necessary to set out in context the facts relevant to this issue.

37. These facts are as follows. On 1 July 2019, the Circuit judge heard evidence from Garda Darragh Hynes in relation to the offences before the court and, in particular, the offence of driving without insurance. The matter was adjourned part-heard for resumption on 9 July 2019. While the applicant's case was that he had a policy of insurance, the prosecution's case was that, as he was disqualified from driving on the day when he was stopped by Garda Hynes, the insurance policy that he had at the time was void. (The applicant had been convicted of an offence of careless driving on 17 April 2012 following an appeal to the Circuit Court and was as a result disqualified from driving at the time of the alleged offences in March 2013). Having heard the evidence and submissions, the Circuit trial judge said "I'm going to give my judgment now" (transcript, 9 July 2019, p. 24). The Circuit trial judge then stated that she was satisfied that the applicant was not insured because of the order of 17 April 2012 in relation to careless driving which disqualified the applicant from driving. She stated (transcript, 9 July 2019, p.25):-

"Had the insurance company known that they would have said: ‘No, no, no. The policy is dead insofar as that’s concerned.’ So I'm satisfied that he wasn't insured. And I'm going to convict of that too. But then I'm looking at the penalties and it’s not mandatory."

38. The discussion then moved to the question of sentencing and, in particular, whether the court was obliged to impose a mandatory order of disqualification from driving. There was some debate about the Circuit Court’s jurisdiction on the question of disqualification. Counsel for the applicant raised the case of DPP v Petrovici [2018] IEHC 734 (“Petrovici”) where Noonan J. (when in the High Court) had addressed the question of whether previous relevant convictions of driving without insurance if spent under the terms of the Criminal Justice (Spent Convictions and Certain Disclosures)

Act, 2016 meant that an accused could seek to avail of the provisions of s. 65(5)(b) of the Road Traffic Act 2010 which provided that when a person was convicted of an offence of no insurance, the court had a discretion “in the case of a first offence under the section concerned”, if satisfied that a special reason has been proved, to decline to make a consequential disqualification order or specify a disqualification period of less than one year.

39. The Circuit trial judge stated that she was going to make her order and she was asked by counsel for the applicant for a stay on the order (I might observe in parenthesis that there did not appear to be any legal basis for the stay sought at this point). The Circuit trial judge said that she would "put a stay pending clarification as to whether Petrovici is being appealed". She put a stay until the Friday of that week of the hearing to allow for her to be informed as to whether Petrovici was being appealed or not and to address anything else arising.

40. The matter came back before the Circuit trial judge a few days later, on 12 July 2019. Counsel for the applicant noted during exchanges with the judge on that date that the court had "factually convicted Mr McGuinness" of having no insurance, with which the court agreed. The matter was put back for further argument to 16 July 2019.

41. On 16 July 2019, the Circuit trial judge noted that "I have already made a ruling that Mr McGuinness was not insured because there was no valid insurance in place, he having been disqualified". (Transcript, 16 July 2019, p. 1). Counsel for the applicant persisted with the argument that, because the applicant's previous convictions for driving without insurance, which dated to 1985 and 1987, were spent under the Spent Convictions Act that the court could proceed for the purposes of assessing disqualification on the basis that this was a first offence (notwithstanding the very clear terms of the judgment of Noonan J in Petrovici which rejected this argument). Counsel for the applicant sought to have a case stated on this issue. He sought "one final opportunity" to put in front of the court a case stated for the opinion of the Court of Appeal. Counsel for the DPP pointed out that the very question which counsel for the applicant was attempting to formulate by way of a proposed consultative case stated had already been addressed in Petrovici by Noonan J. Ultimately, the Circuit trial judge adjourned the matter to enable counsel for the applicant to put in a written submission on the question of a case stated.

42. (It should be noted that, as a matter of law, the only form of case stated which the Circuit Court would have had jurisdiction to make was a consultative case stated pursuant to s.

16 of the Courts of Justice Act 1947, which in its terms makes clear that the judge may refer any question of law to the Court of Appeal by way of case stated for the determination of the Court of Appeal "and may adjourn the pronouncement of his judgment or order in the matter pending the determination of such case stated".)

Relevant statutory provisions

43. Section 18(1) of the Courts of Justice Act 1928 provides that:

“An appeal shall lie in criminal cases from a Justice of the District Court against any order (not being merely an order returning for trial or binding to the peace or good behaviour or to both the peace and good behaviour) for the payment of a penal or other sum or for the doing of anything at any expense or for the estreating of any recognizance or for the undergoing of any term of imprisonment by the person against whom the order shall have been made.’

44. It can be seen from the above that, for our purposes, an appeal only lies from the District Court to the Circuit Court where there is a penalty or sentence reflected in the order sought to be appealed, i.e. both conviction and sentence have been addressed in the District Court.

45. Section 18(3) of the Courts of Justice Act 1928 provides as follows:

“Every appeal under this section from an order of a Justice of the District Court shall lie to the Judge of the Circuit Court within whose circuit the District or any part of the District of such Justice lies, and the decision of such Judge on such appeal shall be final and conclusive and not appealable”.

46. Section 50 of the Courts (Supplemental Provisions) Act, 1961 provides that:

“Where—

(a) an order is made in a criminal case by a justice of the District Court convicting a person and sentencing him to pay a penal or other sum or to do anything at any expense or to undergo a term of imprisonment or to be detained in Saint Patrick's Institution, and

(b) an appeal is taken against the order, and

(c) either—

(i) the notice of appeal states that the appeal is against so much only of the order as relates to the sentence, or

(ii) the appellant, on the hearing of the appeal, indicates that he desires to appeal against so much only of the order as relates to the sentence, then, notwithstanding any rule of law, the Circuit Court shall not, on the hearing of the appeal, re-hear the case except to such extent as shall be necessary to enable the court to adjudicate on the question of sentence.”

47. As can be seen from this provision, an appeal following conviction and sentence in the District Court can be confined to an appeal against sentence only; however, in contrast, there is no power to confine an appeal to an appeal against conviction only i.e. an appeal against conviction must involve an appeal against the order of both conviction and sentence.

48. Section 30(5) of the Road Traffic Act 1961, as amended provides:-

“Where—

(a) a consequential or ancillary disqualification order (or, where the order is related to a conviction, that conviction) is the subject of an appeal,

(b) the operation of the order stands suspended pending the appeal, and

(c) the appeal is not prosecuted or the order is confirmed or varied by the appellate court,

the period of disqualification shall begin on the day on which the appropriate order of the appellate court is made, save in a case where the operation of the consequential or ancillary disqualification order is postponed under paragraph

(d) of subsection (3) of this section.”

49. It will also be noted that this section contemplates "the order" being confirmed or varied by the appellate court, the order in this context clearly referring to the order addressing both conviction and sentence.

Discussion

50. It is fair to say from the transcript evidence set out above that, in ordinary parlance, the Circuit trial judge had decided that she was going to convict the applicant and had moved on to the question of sentence. It is of course the case that the question of sentence cannot be reached by the Circuit judge on a District Court appeal or by the District Court at first instance without having decided that the accused is guilty and therefore without having made a decision to convict in that sense.

51. However, it is equally clear that the legal position for at least 150 years since the Summary Jurisdiction Act 1851 is that the question of conviction and sentence are "entirely intertwined" in respect of summary convictions whether in the District Court or in the Circuit Court on the de novo rehearing of a District Court prosecution by way of appeal.

52. This is helpfully described by Hogan J in McCabe v Governor of Mountjoy Prison [2014] IEHC 309 ("McCabe") at para 10:

“There is little doubt but that, at least so far as summary convictions are concerned, the word "conviction" implies that the accused has not only been convicted of the offence (in the sense of being found guilty), but also that he has received a sentence for this offence. The Supreme Court has twice held that conviction and sentence are entirely intertwined (see The State (Kiernan) v. de Búrca [1963] I.R. 348 and The State (de Búrca) v. Ó hUadhaigh [1976] I.R.

85), so much so that an invalid sentence "cannot be severed from a conviction so as to validate the conviction on its own": see The State (de Búrca) v. Ó hUadhaigh [1976] I.R. 85, 92, per Henchy J.”

53. It seems clear that there can be only one order in a District Court summary matter, or in the Circuit Court on the rehearing of a District Court summary matter by way of appeal, and that such order must address both conviction and sentence. Such an order is not severable either in the District Court or in the Circuit Court when hearing District Court appeals (see Maguire J in State (Kiernan) v de Burca [1963] IR 348 at 367).

54. This has long been the law. The seventh edition of Paley’s Law and Practice of Summary Convictions (1892) stated that a conviction in a matter of summary jurisdiction was "manifestly imperfect and inefficient" without the punishment sentence also being specified (at p. 203). Paley also noted that a “verdict must have a judgment on penalty” (at p. 204). As the 1915 edition of O'Connor on The Irish Justice of the Peace (2nd Ed.) noted, at p. 207, every conviction in a summary prosecution matter must contain "an adjudication permitted by statute". Adjudication in this sense means a sentence.

55. A post-1924 application of this principle can be seen in The State (Carr) v District Justice of the District Court Area of Youghal [1945] IR 43 where it was held that a District Court conviction was bad and ought be quashed in circumstances where the conviction order made no award of the fine which was essential under the relevant legislation. In that case the order of the Circuit Court on a District Court appeal was bad “for it contains no appropriation of the penalty” (at p. 48).

56. In State (O'Reilly) v Delap (unreported, High Court (Gannon J), 20 December 1995), Gannon J granted an order of certiorari quashing a District Court order in relation to an offence of driving without insurance on the basis that the order was bad on its face for not specifying the sentence imposed by the court. He stated as follows (at p.6):

" The District Court is a Court of limited local jurisdiction established by the legislature pursuant to the provisions of the Constitution, Article 34.3.4°. The orders of the District Court as a matter of record should be seen to be in accordance with the jurisdiction of the Court. If one of the limitations of jurisdiction relates to the range of punishment within limits prescribed by statute, the order of the Court prescribing a punishment must be seen to be within such limit. The order of the District Court of conviction of an offence created by statute must not only show that the offence was a statutory offence but also that the punishment on conviction is within the limitation imposed by the statute… In the order made by the [District judge] the statement of jurisdiction is inaccurate and incomplete and consequently bad on its face."

57. Gannon J noted that it was held by the Supreme Court in the State (de Burca) v O hUadhaigh [1976] IR 85 that conviction and sentence are not severable in the District Court. He stated (at p.7):

"In that case the District Court order related only to sentence in respect of which the entry was mistaken and the order was bad and was quashed on certiorari. Although the order was expressed to relate only to sentence the effect of the quashing of the order was that the conviction also was quashed."

58. As Hogan J pointed out in McCabe (at para. 11), it is also clear from the provisions of s. 18(1) of the Courts of Justice Act 1928 (set out above at para 43) that the right of appeal from the District Court in criminal matters is confined to those cases where sentence has been imposed. Hogan J agreed entirely with McCarty J’s analysis of this question in his "illuminating judgment" in Muntean v Hamill [2010] IEHC 391 (“Muntean”) where McCarthy J stated:

"As will be seen from this provision [i.e. s.18(1) Courts of Justice Act 1928], for the purpose of brevity in the present context, an appeal can be taken only after sentence and, by definition, accordingly only after the matter is completely concluded, and not merely after conviction even if, sentence happens to be adjourned following conviction, for whatever reason."

59. The terms of s. 50 of the Courts (Supplemental) Provisions Act 1961 (set out at para

46 above) provide, by way of a special exception to the general rule that an appeal must be against both conviction and sentence, that an appeal can be brought against sentence only in respect of a District Court conviction; however, any appeal against conviction must encompass an appeal against both conviction and sentence.

60. As Hogan J notes (McCabe para 15) "But if, in general, the law (and specifically the statutory law) treats conviction and sentence as inseparable, this does not mean that this is so for all purposes or, more particularly, that the Oireachtas is not free to depart from these concepts". Amongst the circumstances in which a conviction might have legal consequences of its own, separate from the question of sentence, include the situations addressed by the provisions of s. 99 Criminal Justice Act 2006 (as amended)

which deal with the re-activation of a previously suspended sentence on conviction for a subsequent offence.

61. Counsel for the applicant relied on the judgment of Charleton J in Burke v DPP [2007]

2 ILRM 371 (“Burke”) where Charleton J expressed the view that an appeal could be taken after conviction only in the District Court, and before sentence. As McCarthy J pointed out in Muntean, at para. 19, the provisions of s. 18 of the Courts of Justice Act 1928 were not brought to the attention of Charleton J and McCarthy J expressed the view that Charleton J "surely would have taken a different view if they had". Nor was the attention of Charleton J brought to the Supreme Court decision in State (Aherne) v Cotter [1982] 1 IR 188 (referred to by Hogan J in McCabe at para 14) where the accused had purported to appeal against conviction only in the District Court and where it was held that such an appeal could not be limited to an appeal against conviction only. It would appear to follow that Burke was decided per incuriam on the question of an appeal lying against conviction alone in the District Court.

62. Counsel for the applicant also relied on the decision of Hedigan J in Harvey v Leonard [2008] IEHC 209 (“Harvey v Leonard”). In that case, the applicant pleaded guilty to a charge under the Misuse of Drugs Act, 1977. At sentence stage, evidence was given of a prior sentence from the District Court which had been suspended for 12 months. The District judge convicted the applicant but stated she would not impose sentence until after the matter was remanded back to the judge who had imposed the suspended sentence in the earlier case to allow that judge deal with the question of potential reactivation of the earlier suspended sentence. The respondent judge ordered that once the matter of the suspended sentence was dealt with before the previous judge, the matter would then be remanded back to her for sentence on the conviction which she had recorded against the applicant.

63. Harvey v Leonard turned on the terms of s. 99 of the Criminal Justice Act, 2006, as amended by s. 60 of the Criminal Justice Act, 2007, as those provisions then stood, which provided, inter alia, that where a person was convicted of an offence during a period of suspension of a sentence from an earlier offence, the court before which proceedings for the later offence were brought “shall before imposing sentence on that offence remand the person in custody or on bail to the next sitting of the court that made the earlier order”. The applicant contended that the District Court had no jurisdiction under the relevant provision to remand an accused for consideration of a suspended sentence and that, in a summary procedure, a conviction did not have a freestanding efficacy divorced from penalty. It was argued by the applicant that the trial judge had erred in law in not reaching any determination in respect of penalty, by reference to the authorities which made clear that a valid order in a summary prosecution matter must address both conviction and sentence, including authorities such as State (de Burca) v O hUadhaigh [1976] 1 IR 85 (which I addressed above).

64. Hedigan J in his judgment made reference to Burke where Charleton J had observed (per incuriam, as we have seen) that "an accused may appeal once he is convicted and his entitlement to appeal does not depend on the imposition of a sentence". Hedigan J then stated (at p. 8):-

“It seems to me that the ratio of the above case shows that conviction and sentence whilst not severable are separate actions. It is not necessary to hold that conviction and sentence need to be severed as was meant in those cases cited in support of the applicant's submissions in order to uphold the actions of the District Judge in this case. The cases and materials cited deal with the integral nature of these two parts of the adjudication. If the one falls so must the other. Herein neither has fallen. The challenge is based on what I consider the mistaken view that conviction and sentence are so inextricably linked that nothing of substance can occur between them. That proposition cannot be correct. Experience over many years shows practitioners that District Judges regularly convict and put back for sentence. There may be sought probation or other reports or all manner of further evidence before sentence is imposed. The procedure contemplated by s. 99 is obviously different but nonetheless clearly occurring within the same hiatus between conviction and sentence. The reality in all such cases is that the accused has been convicted and awaits sentence. The wording of the Act could not be clearer and its meaning is also clear. The requirement on the District Judge is mandatory and the District Judge's actions were exactly in accordance therewith.”

65. As we have seen, the decision of Charleton J in Burke was per incuriam on the question of entitlement to appeal from a District Court conviction alone. Hedigan J in Harvey v Leonard was dealing with a distinct situation: that of the discrete regime introduced in respect of the reactivation of suspended sentences by s. 99 of the Criminal Justice Act 2006, as amended (as it then applied). His analysis does not advance, in my view, the applicant's case here to the effect that an orally pronounced conviction/intention to convict has the legal consequence that if the judge is no longer available to proceed to sentence (due to retirement or illness or some other valid reason) that the orally pronounced conviction operates as a bar to a fresh hearing of the appeal as a whole by a new judge.

66. Accordingly, the overwhelming preponderance of authority is that an order cannot be made in respect of summary prosecution in the District Court, or on appeal to the Circuit Court, in relation to conviction alone. An order of conviction in a summary prosecution matter which does not record both conviction and sentence is a legally invalid order; a single, final order cannot be made in respect of such a prosecution until both conviction and sentence have been determined.

67. One can see powerful policy reasons for the approach reflected in law. If it were otherwise, a party could seek to quash an order of conviction in the District Court prior to the conclusion of the District Court proceedings thereby bifurcating into two separate legal stages what the legislature has intended to be a unitary – and summary – process resulting in one composite order. The fact that an appeal to the Circuit Court from a District Court summary conviction is not permitted unless there has been both a conviction and sentence in the District Court underscores that policy position.

68. Counsel for the applicant placed heavy reliance on Feeney v Clifford [1989] IR 668 where McCarthy J held in the Supreme Court (at 678):

“If on the facts alleged, a district justice concludes that an offence is a minor offence fit to be tried summarily and the person accused pleads guilty, whether or not the district justice expressly records a conviction, orally or in writing, once he embarks upon an enquiry as to the penalty appropriate to the offence, in my judgment he is precluded from changing his mind. There is, in law, no such thing as a provisional conviction. Driven to its logical conclusion, if it were otherwise, then without any plea of guilty a district justice might embark upon a summary trial, find the accused guilty, record a conviction and, then, on hearing of a criminal record purport to “vacate” the conviction, adjourn the hearing, extend the time for service of a book of evidence and make a return for trial of an accused to the Circuit Court to be tried before a judge and jury for an offence in respect of which he has already been tried and convicted in the District Court. Such cannot be the law.”

69. McCarthy J. further held (at 679): “Once there has been a plea of guilty to what appears to be, on the facts alleged, a minor offence fit to be tried summarily, there can be no going back on the conviction that necessarily follows the plea of guilty; the district justice cannot hold the plea in some form of forensic limbo, until he has heard the evidence material to penalty”

70. The Supreme Court accordingly granted an order prohibiting the District Court from proceeding to a preliminary hearing of the charges or for sending the applicant forward for trial.

71. It can be seen that the issue in Feeney v Clifford was quite different. There, an accused pleaded guilty following the District Judge’s determination that the offence was a minor one fit to be tried summarily; the same judge effectively attempted to undo the consequence of that determination and the resulting plea of guilty when he came to sentence stage. The Supreme Court did not quash the conviction; rather it prohibited the District Court from sending the applicant forward for trial on indictment. The Supreme Court further held it would be unjust to penalise the applicant by remitting the matter to the respondent District Judge for sentencing, since the sentence which might have been imposed on the applicant would have expired before or shortly after the sentences being served by the applicant at the time when he appeared before the respondent; accordingly an order of mandamus compelling the respondent to deal with the matter on the basis of the convictions recorded by him was not be made.

72. While Feeney v Clifford can be said to be an example of a case where a determination by the District Court during a summary prosecution trial, which led to a conviction on a plea of guilty, had legal consequences it does not seem to me to address the question arising here as to whether an oral pronouncement of a decision to convict, which is not ultimately followed by a sentence and a final order of conviction and sentence and which cannot now be concluded by the original trial judge (as she has retired), means that the matter cannot be retried afresh in the Circuit Court on the basis of the principle of autrefois convict.

73. In my view, it could not be the case as a matter of law that the applicant could have demanded that the Circuit Court draw up an order recording conviction in July 2019 before the court had dealt with the sentence aspect of the matter. Likewise, it could not be said that, in accordance with the terms of s.30(5) Road Traffic Act 1961 as amended, (as set out at para 48 above), the stay on the District Court disqualification would lapse on the date of conviction but prior to sentence being imposed by the Circuit Court;

rather that section provides that the period of disqualification “shall begin on the day on which the appropriate order of the appellate court is made”, it being clear that the “appropriate order” is the order including conviction and sentence i.e. the order “confirmed or varied by the appellate court” as set out in s.30(5)(c), and not some selfstanding oral order of conviction.

74. Nor, in my view, is it the case that an oral pronouncement of the guilt of the accused of an offence prior to the conclusion of those proceedings could lead to a question of autrefois convict if for whatever reason (such as the death, illness, retirement or promotion of the trial judge before sentence has been passed) the summary proceedings have not reached a conclusion and cannot now be concluded by the judge who had been satisfied of guilt.

75. The rationale of the concept of auterfois convict is that a party should not be tried and punished twice for the same criminal matter. In his book "The Law on Res Judicata and Double Jeopardy" (1999), the late Paul Anthony McDermott says the following about autrefois convict (at paragraph [21.03]):

"Once the accused has been tried and convicted for an offence, that is an end to his criminal liability for that offence, and his conduct cannot serve as the basis of a second accusation of the same crime. As in civil law, so in criminal law – transit in rem judicatam – the criminal liability of the accused for the offence is merged in his conviction for that offence and his liability to be punished was discharged by the punishment (if any) which has been inflicted in respect thereof."

76. This statement chimes with the analysis set out earlier in this judgment as to a conviction, in the District Court, as a matter of principle not being complete until both conviction and sentence have been addressed. Where, as here, there has been no penalty imposed in respect of a summary prosecution matter (here, being dealt with de novo by way of a Circuit Court appeal) there is no question of the applicant being unfairly on the hazard of being penalised a second time through a fresh hearing of his appeal before a different Circuit Court judge as he has not been penalised a first time by way of imposition of a sentence or penalty in the first hearing.

77. I agree with counsel for the DPP that the correct characterisation of the status of the applicant’s Circuit Court appeal is that it was an inchoate process; as the original Circuit trial judge cannot conclude the process, in principle the appeal should be heard in full afresh in front of a different Circuit judge with the applicant having all rights of defence in respect of that hearing.

78. I conclude that there was no legally operative conviction of the Circuit trial judge on 9 July 2019 that is amenable to certiorari as the applicant contends or which confers on the applicant a right to plead autrefois convict in the event of a fresh hearing of the appeal in the Circuit Court on the basis that the Judge who originally had seisin of the matter indicated that she was satisfied that the applicant should be convicted of the offences.

79. In my view, it also follows as a matter of principle that it would not be appropriate to remit the question of sentence alone in this matter to a different Circuit Court judge (certainly not in the absence of the applicant accepting he will plead guilty to the offence, in which case only the question of sentence would remain) as such an approach would proceed on the incorrect basis that the applicant has already been subject to a legally binding conviction in the Circuit Court when, for the reasons I have explained, he has not.

80. Subject to the separate issue of potential prohibition of such a fresh hearing, to which I will now turn, the appropriate course of action is that a different Circuit Court judge now hear the appeal as, by reason of the retirement of the original Circuit trial judge, it will not be possible for that judge to close out the applicant’s appeal in the Circuit Court.

The Prohibition Issue

81. The question that next arises is whether the applicant’s Circuit Court appeal should proceed afresh before a different judge in the Circuit Court, given the series of procedural and other infirmities which the applicant says fundamentally tainted the trial process in the Circuit Court subsequent to July 2019 and/or in circumstances where, if the matter were to proceed afresh in the Circuit Court, some 13 years will have elapsed since the alleged commission of the summary offences in question.

82. It is worth at this juncture setting out some general principles which are clear from the authorities:

(i) If conviction or sentence in a summary prosecution matter are arrived at in excess of jurisdiction, the High Court can intervene by way of certiorari to quash the order of conviction and sentence (see e.g. Sheehan v Reilly [1993] 2 IR 81).

(ii) This includes situations where an order of conviction fails also to record sentence (e.g. State (O’Reilly) v Delap (unrep., High Court, 20 December 1995), discussed earlier) or where the conviction and sentence are arrived at in fundamental breach of fair procedures (e.g. Stephens v Connellan [2002] 4 IR 321).

(iii) In such cases, the High Court if it quashes the order of conviction and sentence has discretion (pursuant to Order 84 RSC but also at common law) as to whether or not to remit the matter to the trial court (be it District Court or Circuit Court on appeal) (e.g. Nevin v Crowley [2001] 1 IR 113).

(iv) The High Court can, but only exceptionally, intervene before a summary prosecution has reached a conclusion to prohibit the continuation or conclusion of such a prosecution if there is a real risk of an unfair trial or some other fundamental unfairness. Such situations include but are not limited to a failure to preserve critical evidence (e.g. Stirling v Collins [2014] 1 IR 602) or where

there has been inordinate prosecutorial or systemic delay in the prosecution of the offence (e.g. Cormack and Farrell v DPP [2009] 2 IR 208).

83. Here, while it can be said that the Circuit trial judge fell into excess of jurisdiction (subsequent to deciding that she was going to convict) by failing to afford the applicant fair procedures in deciding the question of whether or not to make a consultative case stated and by not closing the matter out to conclusion, despite request, by dealing with sentence and making a final order on the Circuit Court appeal before she retired, there is no final order of the Circuit court to quash by certiorari; the Circuit Court appeal process to date might be best described as flawed but inchoate and, as I have already concluded, capable in principle of being commenced afresh before another Circuit Judge.

84. The question that arises therefore on the facts before me is whether the court can or should intervene by way of prohibition to prevent such a fresh hearing in the Circuit Court given what transpired in the Circuit Court appeal process, and the lapse of time since the alleged offences since and the District Court conviction; and whether, if so, such prohibition can or should be accompanied by an order directing the Circuit Court to overturn the District Court conviction.

85. It was common case before me that the Court on judicial review does have such a jurisdiction; there is, however, a stark conflict between the parties as to whether it would be appropriate to exercise this jurisdiction on the facts.

86. The applicant, in his submissions on this part of the case, places considerable reliance on the decisions in Irvine v DPP [2017] IEHC 369 ("Irvine") and Landers v DPP [2004]

2 IR 363 ("Landers").

87. In Irvine, a Circuit judge had acted wholly inappropriately when dealing with an appeal against a District Court conviction of the applicant for being drunk in charge of a car, including by the Judge directly contacting a Garda station requesting (and being furnished with) copies of statements which had been prepared for the purposes of the prosecution but which had not been given in evidence before the Circuit judge. Upon learning of this development, the State solicitor informed the applicant’s solicitor of the Judge’s actions and the State solicitor then applied to the Circuit judge to have the conviction order vacated. The Circuit judge vacated the conviction order following that application. After vacating his order, the Circuit judge put the matter back for hearing before another Circuit Court judge.

88. The applicant then applied by way of judicial review for an order quashing the Circuit judge’s order directing a retrial of the applicant's appeal before a different judge and an order restraining the Circuit judge assigned to hear the retrial from dealing with the matter other than by way of an order allowing the appeal.

89. Faherty J applied the principles set out in Grennan v Kirby [1994] 2 ILRM 199, Sweeney v Brophy [1993] 2 IR 202 and Stephens v Connellan [2002] 4 IR 321 to the effect that a plea of autrefois acquit could be available to prevent a rehearing of the appeal where a conviction was arrived at in fundamental breach of the accused’s right to fair procedures. She saw no reason to depart from the principles established in those authorities solely because the High Court was not called upon to quash a conviction (the invalidly arrived at conviction having already been vacated by the Circuit judge).

90. In her view (at para 62):

"There was a breach of the fundamental tenets of constitutional justice in the present case, as clearly acknowledged by the swift action taken by the State solicitor in seeking to have the refusal of the appeal vacated... Notwithstanding that there is no order of certiorari quashing the conviction such as would in a case such as the present entitle the applicant to plead autrefois acquit in a subsequent hearing, I am satisfied that the court has a residual discretion for cases where notwithstanding that the special plea of autrefois acquit may not be available on the strict application of the rules, it nevertheless appears unjust that the second prosecution should proceed. This case is such a case..."

91. Faherty J. therefore applied the relief fashioned by Lynch J in State (Keeney) v Judge O'Malley [1986] ILRM 31 by granting an order of prohibition restraining the Circuit Court judge assigned to re-hear the applicant's appeal from dealing with the matter other than by way of an order allowing the applicant’s appeal.

92. In Landers, the High Court had made an order in earlier judicial review proceedings restraining a District judge from further conducting the trial of the applicant. This occurred in circumstances where the District judge had acted in a variety of inappropriate ways during the hearing of a road traffic act matter. Such inappropriate behaviour had included the judge directing additional evidence which the prosecution had not sought to adduce and interventions by the judge during the course of the hearing which led the applicant to believe that the judge had prejudged the case and was not approaching the evidence in a fair-minded fashion.

93. Subsequent to the conclusion of the earlier judicial proceedings, the DPP sought to have the matter re-heard before a different District Court judge. No order had been sought prohibiting the further prosecution of the applicant in the earlier judicial review proceedings. The applicant then launched fresh judicial review proceedings seeking to restrain the DPP from attempting to further prosecute the applicant in respect of the offences. Kearns J (as he then was) granted the relief sought.

94. Kearns J. stated as follows:

"Quite clearly when a district judge acts without jurisdiction so that any conviction is void ab initio, there can be no objection to any order of the High Court remitting the matter back for a further consideration by the District Court. That was the view taken by this Court in Gilmartin v Murphy [2001] 2 ILRM 442. If an accused person was never at risk because of want of jurisdiction, there is no double jeopardy consideration. Of course, as the authorities indicate, a District Judge may commence or embark upon a hearing within jurisdiction then, for any one of a number of reasons, may exceed jurisdiction by breaching the requirements of natural justice. In the instant case, it appears that the hearing of the prosecution against the applicant had taken most of the day before the District Court Judge. A large number of civilian and Garda witnesses had been called by the prosecution and the applicant himself had completed his own evidence and had been cross examined in respect of same. The interventions by the District Court Judge, and the nature of those interventions, has already been found by Ó Caoimh J. to have prevented a trial in accordance with constitutional requirements. Would it be fair in those exceptional circumstances, or a proper exercise of the court’s discretion, to remit this matter for a further trial before the District Court? In my view it would not." (at pp. 372-373).

95. Kearns J went on to rely on the extent to which the trial judge behaved unfairly or conducted the hearing improperly or in such a way that the accused’s rights were "severely trenched upon during and in the manner of the actual hearing itself", noting that a similar approach was adopted by the High Court in Dineen v Judge Delap [1994]

2 IR 228 (at p. 373).

96. I should observe that there has been scholarly criticism of the treatment in some of the case law of the question as to the precise basis on which the High Court could intervene to grant prohibition of a re-trial in, or prevent remittal to, the District Court (or Circuit Court on appeal) following an unfair trial leading to a conviction in the trial court. Some authorities had sought to distinguish between, on the one hand, cases where certiorari was granted to quash a conviction due to breaches of trial rights by a court otherwise acting within jurisdiction such that a re-trial could not occur on autrefois convict (or autrefois acquit) grounds (see e.g. State (Keeney) v O’Malley [1986] ILRM 31 and Sweeney v Brophy [1993] 2 IR 202) and, on the other hand, cases where convictions were quashed for breaches of rights in arriving at a conviction in a manner held to be in excess of jurisdiction, such that a plea of autrefois convict/acquit would not be available to the accused on the basis that the original trial had been a nullity (see e.g.

State (Tynan) v Keane [1968] IR 348 ), with the seemingly paradoxical result in some cases that the lesser the infringement of rights, the more readily a party could rely on autrefois convict/acquit to prevent a re-trial (see discussion in de Blacam Judicial Review (3rd edn, 2008) paras 50.21 to 50.26, pp 853-858, and in Dunne Judicial Review of Criminal Proceedings (2011), paras 14-135 to 14-148, pp 743-748).

97. However, it now appears settled that the question of remittal, following the quashing of a lower court conviction by way of judicial review, is approached as a more general question of whether it would be appropriate to exercise the High Court’s discretion to remit in all of the circumstances. As Murray J (as he then was) stated in Nevin v Crowley [2001] 1 IR 113 at 119: “Even if one were to treat this case as one in which the applicant would not be entitled to rely on a plea of autrefois acquit if the matter was remitted to

the District Court, the question of such a remittal would still remain a matter for judicial discretion having regard to the circumstances of the case”.

98. In his review of the authorities on this question, Dunne notes that relevant factors in the exercise of such discretion include whether the applicant has suffered prejudice as a result of the lower court’s proceedings (including whether he or she has suffered any penalty), how severely the applicant’s rights were trenched upon in the lower court, and the seriousness of the offence (see Dunne, paras 14-137 to 14-147, pp. 744 to 748).

99. Accordingly, I proceed on the basis that the High Court has a jurisdiction to prohibit a rehearing of a District Court summary prosecution, or a Circuit Court appeal in relation to same, even where the original hearing did not result in a conviction and final order, if the relevant trial judge acted in excess of jurisdiction by breaching the applicant’s trial rights (including his or her right to fair procedures) and where in all the circumstances it would be unfair to the applicant to have to face such a re-hearing.

100. I turn then to an assessment of whether I should prohibit such a rehearing on the facts of this case.

101. Counsel for the applicant submitted that the applicant had endured enough in a flawed Circuit Court process, including in relation to the fact that the Circuit trial judge’s decision to refuse to make a consultative case stated was taken in clear breach of the applicant's rights to fair procedures (in circumstances where he was not on notice of the hearing of November 2020 leading to that decision and therefore had no opportunity to participate in it) and that the beaches of his rights was compounded by the “inexcusable” refusal of the Circuit trial judge to close out the appeal when the applicant specifically sought in April 2022 to have her sit to complete the hearing. The applicant also points to other unsatisfactory circumstances including the lack of a proper explanation for the orders drawn up in May 2022 purportedly recording conviction and sentence being imposed in the Circuit on 28 April 2022 and the fact that the applicant's appeal file appears to have gone missing.

102. The applicant also submits that, given that it is now some 13 years since the commission of the alleged summary offences in issue, it would be fundamentally unfair

to allow the matter proceed afresh in the Circuit Court at such a time remove as to do so would breach his right to an expeditious trial.

103. The applicant relies, in the context of his delay argument, on Flood v DPP [2005] IESC 8, where McGuinness J granted an order of prohibition in respect of a criminal matter proceeding on indictment in the Circuit Criminal Court on the basis that the delays in the prosecution of the case as a whole amounted to a denial of the applicant's right to an expeditious trial. She also found in the circumstances of that case that there was a real danger that the delays could lead to an unfair trial (at p. 38).

104. As McGuinness J also noted in her judgment “cases involving delay in prosecution, or the denial of the right to an expeditious trial, must be decided on an ad hoc basis, in the particular circumstances of the case” (at p. 38).

105. The applicant also relies on dicta in the Supreme Court judgments in Noonan v DPP [2008] 1 IR 445, where the court granted an order of prohibition in respect of a criminal prosecution proceeding on indictment in circumstances where there had been gross delay. As Denham J (as she then was) noted (at p. 454):-

"In each case the facts have to be considered in light of all the circumstances of the case. Thus, for example, summary trials are required to proceed more quickly, to provide summary justice. It is accepted that a trial on indictment may take longer to process."

106. In that case, the Supreme Court was concerned with a trial on indictment.

Hardiman J made clear (at p. 470) that systemic delays in the District Court could not be excluded from the category of delay which could assist an applicant.

107. The authorities on prohibition of criminal trials on the basis of blameworthy prosecutorial or systemic delay make clear that the court considering such a basis for prohibition must balance the community’s right to prosecute crimes against the applicant’s right to an expeditious and/or fair trial with regard being had to factors such as the length of the delay, the reasons for the delay, the contribution of applicant to any delay, the nature of the offence and whether the applicant has suffered prejudice as a result of the delay, in particular prejudice to his ability to defend the charge (see e.g.

McFarlane v DPP (No 2) [2008] 4 IR 117 at 162-163 (Kearns J.). Regard must also be had to the fact, as noted by Denham J in Noonan v DPP (referenced above), that summary prosecution matters are expected to proceed more quickly.

108. The DPP, for her part, contends that this was a case where there were a number of mishaps but no egregious breach of trial rights and that any delays in the process were either with the consent of the applicant or caused or contributed to by his strategy of prolonging the appeal to keep the benefit of the stay on his driving disqualification which he obtained by lodging an appeal against his District Court conviction, notwithstanding the recognisance entered by him which obliged him to prosecute his appeal.

109. In my view, the fact that the applicant was mistakenly not notified about the hearing on 23 November 2020 when the Circuit trial judge proceeded to decide not to make a consultative case stated without hearing from the applicant, was not a breach of rights of a magnitude which would warrant an order of prohibition of a fresh hearing. It was a matter which was capable of being rectified by an appropriate application to the trial judge.

110. As regards the alleged refusal of the Circuit trial judge to close out the appeal following request, it was not satisfactory that the Circuit trial judge appeared to have mistakenly taken the view in April 2022 that the appeal was concluded in circumstances where counsel for the applicant had requested before another judge that the matter be listed before the Circuit trial judge in order to complete the matter of sentence. I do not have a clear picture as to precisely how or why the Circuit trial judge was labouring under the misapprehension that the applicant’s appeal had been concluded and believe it is appropriate to proceed on the basis that there was an unfortunate misunderstanding as opposed to anything more sinister involved.

111. In contrast to the types of scenarios which unfolded in the Irvine and Landers cases, I do not believe that this set of events was such as to amount to a breach of the applicant’s rights of such severity that the appeal ought not to start afresh. In my view, it could not be said that the applicant has “endured enough”. This is not a case where the applicant was unfairly convicted following a trial in fundamental breach of his rights or where he has suffered any material prejudice as a result of the breach of his rights; indeed, rather than being prejudiced, he continued to get the benefit of the stay on his driving disqualification.

112. Turning to the question of delay, I am very conscious of the long lapse of time since the offences were alleged to have been committed and since the original District Court trial and conviction which is the subject of the applicant’s appeal and the fact that a summary prosecution should by definition be dealt with expeditiously.

113. However, in my view, there are quite exceptional features in this case which militate against the view that the lapse of time is such as to warrant prohibition of a fresh hearing in the Circuit Court (or any order to the effect that the Circuit Court hearing be re-entered solely for the purposes of overturning the District Court conviction).

114. When one looks at the broad periods of lapse of time involved, the period of almost five years between the date of occurrence of the alleged offences (2 March 2013)

and the District Court hearing (29 January 2018) is largely explained by the parties, by consent, awaiting the outcome of a test case before the Supreme Court. The time taken between the lodging of an appeal in February 2018 and the matter coming on for hearing before the Circuit trial judge on 1 July 2019 is characterised by several adjournments which were at the behest of the applicant including an application for adjournment on

19 June 2018 because the applicant had changed his legal team; an application for an adjournment on 5 July 2018 (despite the matter having been listed peremptorily for that date) as a result of the applicant's asserted medical issues; the applicant not turning up for a hearing on 1 March 2019 leading to an affirmation of the District Court order of conviction and sentence before a successful application to reinstate on 15 March 2019;

and a consequent listing for hearing on 1 July 2019 on a peremptory basis.

115. The matter was adjourned part-heard on 1 July 2019 to 9 July 2019. The matter was then adjourned at the applicant's urging at the end of the hearing on 9 July 2019 to allow him make written submissions on the question of the consultative case stated. He made no such submissions.

116. There is no clear explanation provided as to why the matter did not come back before the Circuit trial judge until some 16 months later on 23 November 2020 (although Covid may have accounted for some delays in the period from March 2020 to November 2020). It is equally clear that no application was made by the applicant during this period to have the matter listed for the purposes of trying to bring the matter to a conclusion.

117. Again, when the applicant found out on 19 April 2021 that the consultative case stated question had been determined in his absence, no step appears to have been taken by him in the subsequent months to bring the matter back for final determination, or to reopen the consultative case stated question with the original trial judge.

118. The applicant then issued these judicial review proceedings in their original and, it must be said, misconceived terms on 31 August 2021. After the institution of the judicial review proceedings, the matter was adjourned from time to time in the Circuit Court until it came before Judge Berkeley on 26 April 2022 and 28 April 2022; the applicant seems to have been content to rely on the existence of the judicial review proceedings (despite the absence of any stay from the High Court on the further prosecution of the Circuit Court appeal) and did not seek to advance matters in the Circuit Court until April 2022.

119. After 28 April 2022, the applicant did not consent to an application by the DPP to vacate the orders erroneously drawn up following the 28 April 2022 hearing and the DPP had to make an application to Judge Berkeley by motion on notice to do so which was dealt with on 13 October 2022.

120. The applicant, notwithstanding the unsatisfactory state of affairs that emerged on 28 April 2022 does not appear to have made any other application to the Circuit trial judge to have the matter closed out by her before her retirement in June 2022, although he may reasonably have taken the view that such an application would be pointless given what happened on 28 April 2022.

121. As already noted, the hearing of the original judicial review leave application in the High Court took place on 23 May 2023. The lapse of time since then is explained by an appeal to the Court of Appeal and thereafter to the Supreme Court with the matter coming back to the High Court on the basis of a significantly reformulated case on the applicant's part. While there was nothing inappropriate in the applicant taking such course of action, it is not a period of delay which can be laid at the hands of the DPP or the courts system and arose from the applicant’s decision to seek to challenge the Circuit Court proceedings in the manner in which he did.

122. In those circumstances, while there has been a long lapse of time since the District Court hearing, and the date of the alleged commission of the offences, there is no truly culpable DPP or systems delay and it is quite clear that the applicant has been content to have the benefit of the ongoing stay on the District Court driving disqualification order throughout the period since he lodged his appeal in February 2018.

123. Ultimately, regard must be had to the fact that the offence is really a paper-based offence: either the applicant had in place a valid insurance policy at the date of the alleged offence or he did not. No actual prejudice as to dealing with his appeal at this remove has been averred to by the applicant on affidavit.

124. The applicant complains that he has been "left as a convicted person in the eyes of his own legal advisers and objectively in the eyes of any lawyer or person reading the transcript of 9 July 2019 and interpreting the words in simple and plain English"

and that:

"He is left in a state of total limbo and is unable to assess when the state of the legal limbo will conclude. The botched appeal process left him and leaves unable to accurately and truthfully answer the question as to whether he is convicted of the offence of driving without having in place a policy of insurance or not and while it seems perfectly clear he is convicted yet the DPP has insisted consistently that he is not convicted and that he can simply have his appeal heard again by a different judge." (amended statement of grounds, para. 12)

125. These contentions do not disclose any actual prejudice to him in the event of a fresh hearing of the appeal.

126. The applicant also made the unsubstantiated assertion in his amended statement of grounds (at para. 14) that the state of limbo he was left in "has had knock-on effects of his right to liberty, his right to earn a livelihood and his ability to go about his everyday life and especially his ability to partake in and progress his business". There is simply no evidence to support these contentions, in particular, the contention that his right to livelihood and to his business have been affected.

127. The affidavit sworn by the applicant on 7 March 2025 grounding his amended statement of grounds asserts that "This case has affected every aspect of my life including my family and work life" without any substantiating specifics. The applicant does aver that he has "expended very significant sums of money in both the initial appeal hearing which seemed to take on a life of its own with four outings before Judge McDonnell in July 2019 (and it transpired that is before matters became complicated)

as well as all the further appearances in 2021 and 2022 at Circuit Court and High Court level followed by the progression of the case in the Court of Appeal and to this Honourable Court".

128. In my view, some weight should be given to the fact that the applicant has incurred cost in respect of a number of outings before the Circuit Court in relation tohis appeal. However, that must be weighed against the fact that the applicant has had the benefit for some 8 years now of his legal entitlement to a stay on the three-year disqualification imposed by the District Court in January 2018 and has been able to drive and continue his business throughout that period as a result.

129. While the applicant is of course entitled to a presumption of innocence on the de novo hearing of the prosecution against him in the Circuit Court appeal, the court cannot be blind to the fact that the applicant has benefited from the stay on the disqualification order throughout the lengthy period to date. It is difficult to avoid the

conclusion that it suited the applicant to engage in a strategy of drawing out the Circuit Court appeal including by making a case stated application on untenable grounds, not following up with written submissions on the case stated suggestion despite the matter being adjourned for that purpose at his request, and being content to take advantage of lengthy adjournment periods in the Circuit Court. If one posed the question as to whether the applicant’s attitude to the prosecution of his appeal would have been different if there had been no stay on his driving disqualification, I think the answer would clearly be that the applicant would have sought to prosecute his appeal with much greater vigour and expedition.

130. Weighing all the circumstances set about above, while the applicant was subject to unfairness in the process during the Circuit Court appeal, and incurred some costs in that process, he did also benefit in terms of the ongoing stay on the disqualification order throughout the period; he either contributed to or was happy to take advantage of delays in the Circuit appeal process and he has not been able to point to any actual or potential prejudice in the running of his appeal and defence of the prosecutions at this time remove. It seems to me that, having regard to all the circumstances, on balance, this is not an appropriate case in which to grant an order of prohibition on the applicant’s appeal proceeding afresh in the Circuit Court. Rather, the question of any potential impact of delay and lapse of time on the fairness of him being tried de novo in the Circuit Court appeal should be determined by the Circuit Court judge who is assigned to hear that appeal afresh.

Conclusion

131. For the reasons set out in this judgment, I refuse the applicant the reliefs he seeks.

132. The effect of this judgment is that the applicant’s District Court appeal can now proceed afresh before a different Circuit judge.