High Court quashes criminal conviction for assault due to procedural unfairness and lack of specificity in charges.

APPROVED [2026] IEHC 371

THE HIGH COURT

JUDICIAL REVIEW

2024 696 JR

BETWEEN

KEVIN TAYLOR

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered on 29 June 2026

INTRODUCTION

1. These judicial review proceedings seek to set aside a criminal conviction for assault. The Applicant was convicted in the District Court and, following an appeal by way of rehearing, was again convicted in the Circuit Court. The Circuit Court imposed a custodial sentence, which the Applicant has since served.

2. In broad outline, the resolution of the judicial review proceedings requires the High Court to address the following four issues. First, whether the decision of the District Court should be characterised as a partial acquittal such as to preclude the Circuit Court from entering a conviction by reference to the principle of autrefois acquit. Second, whether the offence charged lacked sufficient specificity. Third, whether the Applicant was denied fair procedures in the course of his cross-examination of the complainant. Fourth, whether the Circuit Court erred in law in its consideration of the defence advanced by the Applicant pursuant to section 18 of the Non-Fatal Offences Against the Person Act 1997.

PROCEDURAL HISTORY

3. These judicial review proceedings have their origin in an incident on

11 December 2018. The incident occurred in the context of the execution of a High Court order of possession in respect of a residential property at Falsk, Strokestown, County Roscommon.

4. The group executing the enforcement order comprised the County Registrar; Mr Aidan Devlin of Trinity Asset Management Services; and a number of security personnel including, relevantly, Mr Ian Gordon. Members of An Garda Síochána, including Sergeant Enda Daly, attended at the scene to prevent a breach of the peace.

5. Mr Gordon alleges that he was assaulted by Mr Taylor (the applicant in these judicial review proceedings). More specifically, Mr Gordon alleges that the Applicant grabbed him by the genitals and brought him to the ground. Mr Gordon described the incident as akin to a rugby tackle.

6. The Applicant was subsequently charged with assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997. The Applicant was convicted, at first instance, by the District Court on 28 July 2022.

7. Having regard to the Applicant’s argument that the first-instance decision supports a plea of autrefois acquit, it is necessary to set out the finding made by the District Court. The relevant part of the transcript reads as follows:

“MR TAYLOR: We did not see [in the video footage played

in court] any evidence of testicles being --

JUDGE: Mr Taylor, I absolutely agree with you, 100%. I did

not see any evidence of you grabbing Mr Gordon by the

testicles, okay? However, as you have just said in open court

and on the DAR, I saw Mr Taylor grab Mr Gordon and pull

him off another man. Now, you are, therefore, just after

admitting in open court, Mr Taylor, that you did lay hands on

Mr Gordon. You are charged with a section 2 assault, which,

as you know, as a retired member of An Garda Síochána, is

the most minor assault you can get. And having viewed the

CCTV twice and having listened to the evidence, I can say I

wasn’t overly impressed by Mr Gordon, okay. And I have

no doubt, Mr Taylor, that you are a very decent man, and that

your intentions on that day, on the 11th of December 2018,

were nothing but noble. However, you overstepped the

mark, Mr Taylor, when you laid hands on Mr Gordon, and

that is very clearly shown by the CCTV and admitted by

yourself and captured by the DAR. Therefore, I am

convicting you of section 2 assault, Mr Taylor. Now, do you

want to tell me anything about your circumstances before I

give a penalty?

MR TAYLOR: The nature of the assault [alleged] is that I

grabbed Mr Gordon by the testicles. Now, he was switching

it for different …

JUDGE: Mr Taylor.

MR TAYLOR: You’ve seen this now – you’ve seen this now,

Gordon. JUDGE: Have you a copy of the summons, Mr Taylor? MR TAYLOR: Sorry? JUDGE: Have you a copy of the summons?

MR TAYLOR: I haven’t it with me, no. JUDGE: Okay. Well, let me read the summons to you.

MR TAYLOR: I know what’s in it, but I know --

JUDGE: Ah, I’ll read it, I’ll read it for the DAR.

MR TAYLOR: …

JUDGE: -- the point that you’re making. So, you appear to

-- at the said statement, to answer the said accusation, offence

alleged that you, on the 11th of December 2018, at Falsk,

Strokestown, Roscommon, in the said district, assaulted Ian

Gordon, contrary to section 2 of the Non-Fatal Offences

Against the Person Act 1997. There is no mention of a

particular assault, Mr Taylor, and, as I said to you, you

admitted in open court and on the DAR that you laid hands

on Mr Gordon.”

8. As appears from the transcript, the District Court found that the evidence established that the Applicant had committed an assault. This was so notwithstanding that the judge was not satisfied that the evidence had established the specific allegation that the Applicant had grabbed Mr Gordon by the testicles. The District Court convicted the Applicant of assault and imposed a monetary fine of €200.

9. The Applicant, Mr Taylor, pursued an appeal to the Circuit Court against this conviction. The appeal was heard over two days, commencing on 20 March 2024, before His Honour Judge Kenneth Connolly. I will use the term “the trial judge” to refer to the Circuit Court judge. This terminology reflects the fact that the appeal is by way of a full rehearing rather than, say, a review on the record.

10. The Applicant represented himself and was assisted by a McKenzie friend, Ms Teresa Clyne. The trial judge ruled that Ms Clyne’s role was confined to assisting with paperwork and that she was not entitled to address the court on the Applicant’s behalf.

11. Mr Gordon again gave evidence that the Applicant grabbed him by the genitals and brought him to the ground. The Applicant, for his part, disputed that account and asserted—by way of submission and cross-examination rather than evidence—that his conduct was prompted by a perceived need to protect a vulnerable individual. More specifically, the Applicant asserted that he had acted to protect Mr Robert Brady, whom he described as a disabled person with a brain injury. The Applicant contended that Mr Brady was being pushed or attacked by security personnel and that his own intervention was directed towards protecting Mr Brady rather than assaulting Mr Gordon. This “rescue” or “protection” narrative does not appear to have been advanced in any developed way in the District Court.

12. The Applicant further contended that the security personnel were trespassers, that the repossession was unlawful or unsupported by a valid court order, and that the security company lacked the necessary licence.

13. The video footage occupied a significant part of the hearing before the Circuit Court. A number of clips were played and replayed, including material relied upon by the prosecutor and material produced by the Applicant on a USB memory stick. The video footage showed the broader confrontation and the movement of persons at the property, including at or near the gate, but it did not show the Applicant grabbing Mr Gordon by the genitals. Audio on the video footage was also relied upon. The Applicant contended that the video footage supported his account that he was moving to assist Mr Brady and that he himself was then knocked or forced to the ground by security personnel.

14. The trial judge acknowledged that the video evidence did not depict the precise act alleged by Mr Gordon. The trial judge also acknowledged that there was some divergence in Mr Gordon’s evidence as to the exact location of the incident, including whether it occurred at the gable or side of the house, between the house and the gate, or closer to the gate. The trial judge further noted the ambiguity in an audio reference to someone being grabbed by “the balls”, and stated that the case was not being decided on the basis of that audio.

15. Notwithstanding those qualifications, the trial judge broadly accepted Mr Gordon’s evidence. The trial judge treated the inconsistencies as to the precise geographical location as explicable in the context of a chaotic and fastmoving incident. The video footage was relied upon by the trial judge not as direct proof of the specific allegation that the Applicant had grabbed Mr Gordon by the genitals, but as part of the surrounding context. The trial judge said it showed the Applicant in an agitated state, moving towards and becoming involved in the physical confrontation. The trial judge rejected the Applicant’s reliance on the statutory defence of the use of reasonable force to protect another person. The trial judge stated that he was satisfied beyond reasonable doubt that the Applicant had assaulted Mr Gordon within the meaning of section 2 of the Non-Fatal Offences Against the Person Act 1997.

16. The trial judge held that the case crossed the custodial threshold and fixed a headline sentence of three months’ imprisonment. In mitigation, the trial judge gave credit for the Applicant’s absence of previous convictions, his previous lawabiding life, and the fact that his conduct arose from a misplaced sense of loyalty to friends and neighbours. Taking those matters into account, the trial judge reduced the sentence to two months’ imprisonment and directed that the committal warrant issue forthwith. The Applicant has since served the sentence of imprisonment.

17. The following two aspects of the Circuit Court hearing are challenged as part of the judicial review proceedings. To avoid duplication, the detail of the objections will not be set out here but rather will be addressed, in context, when discussing the grounds of judicial review. For present purposes, it is sufficient to summarise the two objections as follows. The first objection relates to the crossexamination of the complainant. It is alleged that the trial judge interfered with the Applicant’s right to cross-examine by conducting part of the crossexamination himself. It is said that this “judicial interference” actively shielded the complainant from scrutiny, made it impossible for the Applicant to challenge the evidence against him, and ultimately rendered the trial unfair and the conviction unlawful.

18. The second objection relates to the statutory defence of the justifiable use of force under section 18 of the Non-Fatal Offences Against the Person Act 1997. The Applicant has been granted leave to argue that the trial judge misdirected himself in law by failing to interpret the provision correctly insofar as it requires an accused person’s conduct to be assessed subjectively, by reference to the circumstances as he or she believed them to be.

JUDICIAL REVIEW PROCEEDINGS

19. The Applicant instituted these judicial review proceedings on 27 May 2024. The application for leave to apply for judicial review was heard on notice to the Director of Public Prosecutions. The High Court (O’Higgins J.) made an order on 10 July 2025 granting leave on a limited number of amended grounds. The Applicant filed an amended statement of grounds on 31 July 2025.

20. The judicial review proceedings proper came on for hearing before me on

26 March 2026. The Applicant was permitted the assistance of a McKenzie friend, Teresa Clyne.

21. At the request of the Applicant, I viewed certain extracts of the video footage of the events of 11 December 2018. This was done without making any ruling as to the relevance of same. Rather than engage in a lengthy debate with the parties as to whether the video footage was relevant to any of the issues arising in the judicial review proceedings, I decided, in the interests of expedition, to view it de bene esse.

22. It should be emphasised that it is very unusual for the court of judicial review to examine, in detail, the evidence before the court of trial. This is because the court of judicial review will not substitute its assessment of the evidence for that of the court of trial. Generally, an error concerning the adequacy of evidence (as opposed to a complete absence of evidence of a necessary matter) will not render a decision of a lower court unlawful. (See paragraphs 127 to 130 below).

23. In the event, the judicial review proceedings have been resolved on grounds unrelated to the adequacy of the evidence. It is not necessary, therefore, for this court to make any findings in relation to the video footage, save to note that the Applicant had wished to rely on the video footage for the purpose of his crossexamination of the complainant. This issue is discussed below, at paragraphs 79 and onwards.

24. The final procedural matter which requires to be addressed relates to the title of the proceedings. The Circuit Court judge had initially been joined to the proceedings as respondent, with the Director of Public Prosecutions joined as notice party.

25. Order 84, rule 22(2A) of the Rules of the Superior Courts provides as follows:

“Where the application for judicial review relates to any

proceedings in or before a court and the object of the

application is either to compel that court or an officer of that

court to do any act in relation to the proceedings or to quash

them or any order made therein—

(a) the judge of the court concerned shall not be named

in the title of the proceedings by way of judicial

review, either as a respondent or as a notice party, or

served, unless the relief sought in those proceedings

is grounded on an allegation of mala fides or other

form of personal misconduct by that judge in the

conduct of the proceedings the subject of the

application for judicial review such as would deprive

that judge of immunity from suit,

(b) the other party or parties to the proceedings in the

court concerned shall be named as the respondent or

respondents, and

(c) a copy of the notice of motion or summons must also

be sent to the Clerk or Registrar of the court

concerned.”

26. There has been some debate in the case law as to whether the imperative that the judge of the court concerned not be “named” in the title of the proceedings is to be interpreted as meaning that the judge should not be joined to the proceedings as a respondent, or, alternatively, that the judge should be joined but on an anonymised basis only, e.g. “A Judge of the Circuit Court”. The preponderance of the case law supports the first proposition. See, in particular, M. v. M. [2019] IECA 124, [2019] 2 IR 402 (at paragraph 21):

“Therefore, it is clear that in circumstances where a

determination of the Circuit or District Court is to be

judicially reviewed, the judge must not be named, neither by

name nor anonymised, as respondent and that in its place, as

substitute for the judge, the other party or parties in the

Circuit or District Court should be joined as respondents —

unless allegations of mala fides or other misconduct against

the presiding judge form part of the grounds of review.”

27. This is consistent with the constitutional imperative that justice should be administered in public save in such special and limited cases as may be prescribed by law. The public nature of court proceedings will generally require that the parties and the judge or judges involved be identifiable. The object of Order 84, rule 22(2A) is not to afford judges anonymity in cases to which they are properly joined as respondents, but rather to ensure that a judge is not joined to proceedings to which they are not the legitimus contradictor. This respects the principle of judicial independence and judicial immunity.

28. There is no allegation of mala fides or other form of personal misconduct made against the Circuit Court judge in the present proceedings. Accordingly, the judge is not a proper respondent. The title of the proceedings will, therefore, be amended by removing the Circuit Court judge as respondent and substituting the Director of Public Prosecutions as respondent in lieu.

ARCHITECTURE OF APPEALS FROM THE DISTRICT COURT

29. Before turning to address the individual grounds of judicial review, it is appropriate to say something about the architecture of the appeal mechanisms available against a decision of the District Court.

30. There is a statutory right of appeal from the District Court to the Circuit Court in criminal cases (Courts of Justice Act 1928, section 18). The nature of such an appeal has recently been restated by the Supreme Court in Director of Public Prosecutions v. Gordon [2024] IESC 29. An appeal from a conviction in the District Court to the Circuit Court is not a review of the District Court’s reasoning: it is a full rehearing. The Circuit Court hears the case afresh; the accused person enjoys the presumption of innocence; and the prosecution must again prove the offence beyond reasonable doubt. The Circuit Court is not confined to the evidence, arguments or findings in the District Court. Either side may, in principle, run the case differently.

31. There is an alternative appeal mechanism available by way of case stated to the High Court. Any party who is dissatisfied with the determination of the District Court as being erroneous on a point of law may apply in writing to have the District Court state a case for the opinion of the High Court (Summary Jurisdiction Act 1857, as extended). This more limited form of appeal is open to any party. Thus, it allows for an appeal by the prosecutor against an acquittal.

32. The District Court judge is required to set out, for the benefit of the High Court, the relevant findings of fact and the grounds for the determination giving rise to the point of law upon which the opinion of the High Court is sought. The role of the High Court on an appeal by way of case stated is limited to giving an opinion on the point of law raised in the particular case. Insofar as there may be a review of the facts decided in the District Court, it is not for the purpose of reaching a different conclusion as to the facts (Director of Public Prosecutions v. Pires [2018] IESC 51, [2019] 1 ILRM 248).

33. The distinction between the two appeal mechanisms has been explained as follows by the Supreme Court in Clifford v. Director of Public Prosecutions [2013] IESC 43, [2013] 2 IR 396 (at paragraph 14): “[…] The purpose of the case stated procedure is to deal with a point of law arising in, in a case such as this, the District Court, so that the point can be definitively determined by the High Court, or, if necessary, on appeal from the High Court, by this court. On the other hand, an appeal on the merits by way of complete rehearing is open to any accused convicted in the District Court. The distinction between an appeal and a case stated is, therefore, one of substance rather than technicality. Those aggrieved by a decision of a District Judge on the merits of the facts have their remedy in an appeal to the Circuit Court where all the witnesses are reheard. Those who feel that the District Judge is wrong in law have the option, in addition to or instead of an appeal, of seeking […] a case stated. But the case stated procedure is confined to points of law. Where, therefore, the issue is as to whether a District Judge was correct in reaching a conclusion on the evidence that a particular charge had been made out, the issue of law likely to arise (and which did arise in this case) is solely as to whether, as a matter of law, it was open to the District Judge to reach such a conclusion. Provided it was so open to the District Judge, it is no function of either the High Court or this court to form a view as to whether the District Judge was right on the merits.”

34. It follows, therefore, that the choice of appeal mechanism has implications for the status, if any, of the findings of fact made by the District Court. If an accused person pursues an appeal to the Circuit Court, then the District Court’s findings of fact fall away. The Circuit Court is obliged to make its own findings of fact and law on the evidence before it. If, however, the accused person pursues an appeal by way of case stated, the appeal is directed to the points of law arising from the facts as found by the District Court. As discussed under the next heading, his pursuit of an appeal by way of rehearing before the Circuit Court has consequences for the Applicant’s attempted reliance on the rule against double jeopardy.

DOUBLE JEOPARDY / AUTREFOIS ACQUIT

Outline of the Applicant’s argument

35. The Applicant contends that the conviction for assault was obtained in breach of the principle against double jeopardy, as encapsulated in the plea of autrefois acquit. It is said that the prosecution had advanced a single, specific allegation, namely that the Applicant had assaulted the complainant by grabbing his genitals.

36. The District Court is said to have performed two separate judicial acts. The first judicial act is characterised as a “clear acquittal on the prosecuted charge”. It is said that a finding of “no evidence” by a trial judge at the conclusion of the prosecution case is an acquittal. The Applicant argues that from that moment onwards the State was legally barred from ever trying him for that specific act again. The second judicial act is characterised as the conviction of the Applicant of a “completely different, unparticularised act of ‘laying on of hands’”.

37. The essence of the argument is encapsulated as follows in the Applicant’s written submissions of 25 February 2026:

“An acquittal does not require a specific form of words to be

effective. When a judge, as the trier of fact in a criminal trial, makes a definitive finding that there is no evidence to support a specific charge, that is a final determination on the merits.

[…]

This was an explicit acquittal of the only particularised act

of assault prosecuted against the Applicant. The subsequent

conviction by the District Court was for a different,

unparticularised act of ‘laying on of hands’ […]. Therefore, the matter of the ‘testicles’ assault was res judicata.”

38. It is pleaded in the amended statement of grounds that the conviction entered by the District Court was fundamentally flawed and a legal nullity in circumstances where the Applicant had supposedly been “acquitted” of the assault offence for which he was prosecuted. It is further pleaded that the conviction was for a “different, unprosecuted, and judicially formulated offence”. Tellingly, the Applicant characterises these events as entailing “intra-trial double jeopardy.” As discussed under the next heading below, this characterisation is inconsistent with the nature of the appeal against conviction pursued by the Applicant.

39. On the Applicant’s analysis, the Circuit Court had jurisdiction to hear an appeal against the conviction for the “laying on of hands” alone and had no jurisdiction “to resurrect the ‘testicles’ charge” of which the Applicant contends he had been acquitted. It is submitted by the Applicant that the Circuit Court likewise found no evidence of the specific allegation, yet nevertheless affirmed the conviction on the same impermissibly broad and unspecified basis.

Overview of governing principles

40. To assist the reader in a better understanding of the discussion which follows, it is necessary to explain what is meant by the concept of “double jeopardy”. It is often employed as an umbrella term to describe a number of different rules which seek to give effect to the principle that a person should not be prosecuted or punished a second time for an offence of which he has previously been acquitted or convicted. This principle is reflected in the Latin maxim nemo debet bis vexari pro eadem causa: no one ought to be vexed twice for the same cause.

41. The concept of double jeopardy serves two closely related objectives. The first objective is the need for finality in the administration of justice. There is no public interest in reopening allegations which have already been duly adjudicated upon by a court of competent jurisdiction. The second objective reflects a concern of conscience. An accused person should not be repeatedly exposed to the anxiety, stigma and disruption of criminal proceedings. The prosecuting authorities, as an arm of the State, have almost infinite resources relative to those of an individual accused person. To allow the prosecuting authorities to re-agitate a criminal prosecution after same has already been adjudicated upon on the merits may itself become an injustice, at least in the absence of special circumstances. Subject to any appeal permitted by law, the prosecuting authorities are expected to advance their case fully at a single trial; they are not entitled to treat the criminal process as iterative.

42. Put otherwise, the concept of double jeopardy seeks to balance the public interest in the prosecution of offences, on one side of the scales, against the personal rights of an accused person and the objective of respecting the finality of criminal proceedings, on the other.

43. One important calibration of the concept of double jeopardy is the requirement that there must have been a final determination on the merits of the criminal proceedings. The accused person must have been in “jeopardy” or in “peril” of being convicted by a court of competent jurisdiction. For example, a plea of double jeopardy cannot be established if it be based upon an adjudication which was in excess of jurisdiction or without jurisdiction because such an adjudication is no adjudication at all: Sweeney v. Brophy [1993] 2 IR 202. Similarly, a mistrial cannot ground a plea of double jeopardy.

44. This requirement for a prior adjudication on the merits is intrinsic to the concept of double jeopardy and reflects the balance which the concept seeks to strike. The concept is intended to protect an accused person who has been put in jeopardy and has had a final determination on the merits of the criminal prosecution. It would tip the balance too far against the public interest in the prosecution of alleged criminal offences to extend that benefit to an accused person who has never been the subject of a lawful adjudication. Such a person cannot be said to have been in jeopardy.

45. This requirement for a prior adjudication can, on occasion, result in an accused person being exposed to criminal proceedings for a prolonged period. The accused person may have to await a rehearing by way of remittal or retrial. This is an unfortunate but unavoidable consequence of the balance which has been struck.

46. In other instances, an accused person may have to await the outcome of an appeal by the prosecutor where such an appeal is provided for by law. As discussed earlier, the case stated procedure allows a prosecutor to appeal from the District Court against an acquittal on a point of law.

47. The concept of double jeopardy is given effect to, primarily, by way of the principles of autrefois convict and autrefois acquit. An accused person, who is being tried on indictment, is entitled to raise the plea that he has previously been acquitted or convicted of the same or substantially the same offence. If the plea is successful, the subsequent prosecution will be barred.

48. The nature of a plea of autrefois acquit has been explained as follows in D.S. v. Judges of Cork Circuit Court [2008] IESC 37, [2008] 4 IR 379 (at paragraphs 21 to 24):

“[…] The concept of double jeopardy is built on the

principles of autre fois convict and autre fois acquit. These

terms refer to a situation where there has been a prior

conviction or a prior acquittal.

Autre fois convict refers to a situation where an accused was

formerly convicted of the crime in issue. It enables a plea,

and a decision if true, that he has already been tried and

convicted of the same offence before a court. An accused

may not be retried for an offence for which he has already

been tried and convicted, and he may not be put in jeopardy

of such a trial.

Autre fois acquit refers to a situation where an accused was

previously acquitted of the crime in issue. Similarly, an

accused may not be retried for an offence for which he has

already been tried and acquitted, and he may not be put in

jeopardy of such an occurrence.

Neither principle applies to this case. The applicant has

neither been acquitted nor convicted of the offences in issue. There was no final verdict in the previous trials.”

49. For an accused person to rely on the formal pleas, the following criteria must be met. First, there must have been a final determination in earlier criminal proceedings, whether by way of acquittal (autrefois acquit) or conviction (autrefois convict), made by a court of competent jurisdiction.

50. Second, the subsequent proceedings must concern the same, or substantially the same offence as the earlier proceedings. The inquiry is not restricted to a comparison between the formal description of the charges or the records of the court. It may be necessary to consider the identity of the persons, dates and facts relied upon in order to determine whether the later charge is founded upon the same act or omission, or the same essential factual matrix, as that which has already been the subject of adjudication. The requisite correspondence may arise where both proceedings form part of the same criminal transaction and the legal and factual ingredients of the later charge are, in substance, the same as those relied upon in the earlier prosecution.

51. The ultimate question, however, remains whether the accused person is being charged with the same, or substantially the same, offence as that in respect of which he has previously been acquitted or convicted, or as one in respect of which he could previously have been convicted. This approach reflects the principles identified in Connelly v. Director of Public Prosecutions [1964] AC 1254, approved in O’Leary v. Cunningham [1980] IR 367 (at 379) and restated by the Supreme Court in People (Director of Public Prosecutions) v. Flynn [2026] IESC 21 (at paragraph 41).

52. It should be explained that the formal pleas of autrefois convict and autrefois acquit are pleas in bar traditionally associated with trials on indictment rather than summary criminal proceedings. In the context of summary criminal proceedings, the same underlying principle against double jeopardy has nevertheless been recognised, though often by analogy or through the court’s jurisdiction to prevent an abuse of process.

Discussion

53. Returning to the present case, it is necessary to consider whether the criminal proceedings against the Applicant engage the values which the formal pleas— and the broader concept of double jeopardy—are intended to protect.

54. The starting point for the analysis is that the Applicant has been prosecuted on a single charge only, namely, assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997. I will refer to this offence as “simple assault” to distinguish it from the more serious assault offences under the Act, such as “assault causing harm” and “assault causing serious harm”.

55. The District Court was required to determine the single charge before it in binary terms. The available verdicts were either an acquittal or a conviction on the charge of simple assault. This was not a case where the District Court would have been entitled to consider an alternative verdict on a lesser charge. Assault contrary to section 2 is the least serious of the assault offences under the Act. If the District Court had not been satisfied that the ingredients of that offence had been proved beyond reasonable doubt, there was no lesser offence of which the Applicant might instead have been convicted in the alternative. The position would have been different if the Applicant had been charged with, say, assault causing harm. Depending on the evidence, it might have been open to the District Court to convict the Applicant of the lesser offence of simple assault. This may have engaged the principles identified in O’Leary v. Cunningham [1980] IR 367 (at pp 378-380). In the absence of a statutory or common law power of substitution, the acquittal on the greater charge is capable of limiting the Circuit Court’s appellate jurisdiction.

56. In the event, the District Court convicted the Applicant of an offence of simple assault. The District Court judge was satisfied that the prosecution had established the application of unlawful force, specifically that the Applicant had laid a hand on the complainant. This action was sufficient to constitute an assault for the purposes of section 2, absent lawful excuse or consent. The Applicant has sought to suggest that the District Court’s finding that he had laid hands on the complainant constitutes a “completely different offence”. With respect, this suggestion is baseless. The concept of laying a hand on a person is the traditional manner of describing an assault. It has a long pedigree dating back at least as far as Shakespeare: “Wilt thou lay hands on me, villain”, As You Like It (Act 1, Scene 1).

57. It is correct to say that the District Court judge was not satisfied beyond reasonable doubt in respect of one allegation, namely, that the Applicant had grabbed the complainant’s genitals. This did not amount to an acquittal in respect of any separate charge. The District Court’s rejection of one factual particular advanced in the prosecution narrative could not amount to an acquittal of a separate or lesser offence, where no such offence had been charged and no such alternative verdict was available. The offence cannot be atomised into discrete factual particulars in the manner suggested by the Applicant. See further paragraphs 68 to 78 below.

58. It follows, therefore, that the Applicant was not acquitted of any offence by the District Court. This precludes his reliance, by analogy or otherwise, upon the formal plea of autrefois acquit.

59. In truth, the Applicant’s actual objection comes closer to an invocation of the concept of issue estoppel than the concept of double jeopardy. The gravamen of the Applicant’s case is that the District Court made a finding on an issue of fact, namely, whether the complainant had been touched on the genitals. The Applicant contends that he should have been entitled to hold on to that finding for the purpose of his appeal to the Circuit Court.

60. This contention is incorrect for two reasons. First, issue estoppel does not apply to criminal proceedings. The Supreme Court in Lynch v. Moran [2006] IESC 31, [2006] 3 IR 389 held that issue estoppel has no role in Irish criminal law, either in favour of the prosecution or in favour of the accused. Kearns J. rejected the contrary view earlier expressed by the Court of Criminal Appeal in People (DPP) v. O’Callaghan [2001] 1 IR 584, on grounds that included the unitary character of the criminal trial, the absence of any autonomous appeal from a finding on a discrete issue, and the requirement of mutuality which is intrinsic to the doctrine of estoppel.

61. The requirement for mutuality in issue estoppel has an obvious resonance in the present proceedings. Here, the Applicant seeks to rely on the District Court’s supposed finding that there was no evidence that he had grabbed the complainant’s testicles. The requirement for mutuality implies that the prosecutor would be entitled to rely on the finding in its favour, namely, that the Applicant had assaulted the complainant by touching him. This would undermine the Applicant’s right of appeal to the Circuit Court.

62. This leads to the second, more specific reason. The proposition that the firstinstance decision of the District Court could give rise to an issue estoppel cannot be reconciled with the nature of the appeal to the Circuit Court. The appeal takes the form of a rehearing. Such an appeal, by definition, entails a fresh hearing at which all issues fall to be tried anew. To accord preclusive effect to any finding made at first instance would reduce the rehearing to a review in all but name.

63. By electing to appeal to the Circuit Court, the Applicant submitted the single charge against him to a complete rehearing. The Applicant’s earlier conviction was relevant only to the jurisdiction of the Circuit Court to entertain the appeal, and not to any aspect of its disposition (Director of Public Prosecutions v. Gordon [2024] IESC 29 (at paragraph 18)). There was no acquittal on any other charge. It follows that the Applicant could not hold the prosecutor to those features of the District Court’s adjudication which happened to be favourable to him. On such a rehearing, no finding of fact made in the District Court—whether for or against an accused person—survives to bind the Circuit Court.

Decision

64. There is nothing in the history of the criminal prosecution which infringes the values that the concept of double jeopardy is intended to protect. The Applicant has only ever been prosecuted once arising out of the events of 11 December 2018. The District Court convicted him of the single offence of which he was charged. The Applicant was not acquitted of anything by the District Court.

65. The Circuit Court appeal did not place the Applicant in jeopardy anew; rather, it formed part of a single, continuous criminal process in which the original conviction was subject to a full rehearing at his own instance. He is not being oppressed by a second or subsequent prosecution; rather, he has availed of his right to a full rehearing as part of the original prosecution.

OBJECTION THAT THE CHARGE LACKED SPECIFICITY

Outline of the Applicant’s argument

66. One of the amended grounds upon which leave to apply for judicial review was granted is that the prosecution failed to specify the precise factual basis of the assault alleged against the Applicant. It is pleaded that this violated the principle of clear and unambiguous charges. It is further pleaded that this made it difficult to prepare a proper defence and raised doubt about whether the prosecution met its burden of proof.

67. The Applicant submits that the prosecution proceeded on the basis of a single, clearly particularised factual allegation, namely, that he had assaulted the complainant by grabbing him by the genitals. It is further submitted that this particularisation defined the case the Applicant was required to meet, and that he prepared and conducted his defence accordingly. The Applicant asserts that the District Court purported to convict him by reference to a different and unparticularised form of alleged assault, described in general terms as a “laying on of hands”. The Applicant contends that this amounted to a fundamental shift in the factual basis of the prosecution case.

Discussion

68. The Applicant had been charged with an offence of assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997. The offence is defined as follows:

“A person shall be guilty of the offence of assault who,

without lawful excuse, intentionally or recklessly—

(a) directly or indirectly applies force to or causes an

impact on the body of another, or

(b) causes another to believe on reasonable grounds that

he or she is likely immediately to be subjected to any

such force or impact,

without the consent of the other.”

69. The offence is subject to the following proviso:

“No such offence is committed if the force or impact, not

being intended or likely to cause injury, is in the

circumstances such as is generally acceptable in the ordinary

conduct of daily life and the defendant does not know or

believe that it is in fact unacceptable to the other person.”

70. The physical element of the offence is established on the Applicant’s own narrative of events. As appears from his amended statement of grounds, the Applicant concedes that he made physical contact with the complainant in order to pull him away from a third person. This action entails an application of force to, or causing of an impact on, the complainant’s body.

71. It was not necessary, in order to prove the actus reus, for the prosecution to show that the Applicant had made physical contact with any particular part of the complainant’s body, such as his genitals. The legal position might have been different had the Applicant been charged with a more serious offence such as sexual assault. In such a scenario, the touching of the genitals might have been a necessary part of the actus reus.

72. It follows that it was open to the District Court to convict the Applicant of assault without making a finding that he had made physical contact with the complainant’s genitals. It was sufficient to find that the Applicant had made physical contact with the complainant in an attempt to pull him away from another person. On appeal, the Circuit Court accepted Mr Gordon’s evidence, which included the allegation that the Applicant had grabbed him by the genitals.

73. The Applicant’s argument that the prosecution was confined to the precise narrative set out in the complainant’s statement to An Garda Síochána is incorrect. The argument is premised on a misunderstanding of the degree of specificity required when formulating charges in summary proceedings. It is sufficient that the summons identifies the common law or statutory offence being charged, and the date and location of the alleged offence.

74. Thereafter, the accused person may seek disclosure: Director of Public Prosecutions v. Doyle [1994] 2 IR 286. Here, the Applicant had been provided with a series of witness statements, including one from the complainant. These witness statements set out the context in which the alleged offence arose, namely the enforcement of a High Court order of possession against a dwelling house on 11 December 2018. It is apparent that a large number of persons were present at the time, including the members of the household, court officials, security personnel and members of An Garda Síochána. It is also apparent that there was an incident involving the Applicant and the complainant which resulted in both men falling to the ground. The Applicant had made a counter-complaint to An Garda Síochána himself, alleging that he had been assaulted by the complainant.

75. Against this background, it cannot sensibly be said that the Applicant was not adequately informed of the nature and substance of the accusation against him. The Applicant was on notice that it was being alleged that he had assaulted a security guard who, on the prosecution case, was assisting in the execution of a High Court order. It is common case that, during this interaction, the Applicant touched the complainant. Indeed, this is the basis of one of the other arguments in the judicial review proceedings, namely, that he was supposedly acting in defence of another and could rely on the statutory defence under section 18 of the Non-Fatal Offences Against the Person Act 1997. That version of events, even on the Applicant’s own account, was capable of founding a conviction for simple assault, subject to any lawful excuse.

76. It is correct to say that a further particular is mentioned in the witness statement, namely, that the Applicant had made contact with the complainant’s genitals. This particular is not a necessary ingredient of the offence of simple assault. It would be different, for example, if the Applicant had been charged with assault causing harm or with sexual assault. For present purposes, the point is that there was sufficient evidence to allow the District Court to conclude that the physical elements of simple assault had occurred, i.e. that force had been applied to the body of another. It was a separate matter as to whether there might have been a lawful excuse.

77. It is not necessary that each and every aspect of the narrative as set out in the written statement be proved, provided always that that which has been proved is sufficient to satisfy the ingredients of the offence. Of course, if it is the case that there is a discrepancy between a witness’s oral evidence at trial and his or her witness statement, this is something which can usefully be explored in crossexamination. A trial judge may well decide that any such inconsistency undermines the credibility of the witness in relation to other aspects and might decide, having evaluated the evidence, to acquit the accused person of the offence. That is a different proposition from suggesting that it is necessary for each and every point in the witness statement to be accepted by the trial judge.

78. It is permissible for a trial judge, having heard the oral testimony of the witnesses—and, in this instance, having had the benefit of contemporaneous video footage—to conclude that an assault has clearly occurred, notwithstanding that the evidence does not establish the precise mechanism or modality of force in the manner originally contended for by the prosecution. That exercise does not involve the creation of a “judicially formulated” offence as asserted by the Applicant. Rather, it reflects the orthodox application of the statutory definition of simple assault to the facts as found.

WHETHER CROSS-EXAMINATION WAS UNFAIRLY RESTRICTED

Cross-examination of the complainant

79. The principal criticism made under this heading concerns the cross-examination of the complainant, Ian Gordon. The cross-examination of the complainant had commenced in the afternoon of the first day of the Circuit Court hearing. It had not been completed by the time the hearing was adjourned for the day. The trial judge, having explained that the cross-examination would resume the next morning, did the following. First, he invited the Applicant to formulate the balance of his cross-examination overnight. Second, he invited the Applicant to identify “any video clips” that he wanted the trial judge to watch.

80. The hearing resumed the following day. The Applicant handed a document to the trial judge. The document is dated 21 March 2024 and is addressed to the trial judge and to the prosecuting solicitor. I will refer to this document as “the cross-examination document”.

81. The opening paragraph of the cross-examination document reads as follows:

“Thank you for giving me this opportunity to show specific

areas where I need the witness Ian Gordon to go back over

and also for the judge to revisit, […]”

82. There then follows a series of numbered paragraphs. These identify asserted inconsistencies in the complainant’s evidence by reference to the video footage.

The relevant portions of the video footage are identified with precision by crossreferences to timestamps.

83. The cross-examination document comprised a roadmap for use by the Applicant in his resumed cross-examination of the complainant. Whereas some of the content is tendentious—and might ultimately have formed part of a closing submission—the document identified contradictions which the Applicant wished to put to the complainant in cross-examination. This is apparent both from the opening paragraph, which referred to “specific areas” which the Applicant needed the complainant “to go back over”, and from the numbered points, which were tied to particular timestamps in the video footage and to alleged inconsistencies in the complainant’s account.

84. Rather than allow the Applicant to resume his cross-examination of the complainant, the trial judge proceeded to conduct the cross-examination himself. The Applicant contends that in doing so the trial judge impermissibly assumed an inquisitorial role. The Applicant characterises the approach adopted as having reduced the cross-examination to a “sterile” exercise which “actively shielded the witness from scrutiny”. The Applicant contends that he was deprived of the opportunity to test the complainant’s evidence in any meaningful or iterative way.

85. The Applicant has furnished, as part of his amended statement of grounds, examples of questions which he submits he would have put to the complainant had he been afforded a fuller opportunity to conduct the cross-examination himself. These include questions directed to the internal consistency of the witness’s account and to the physical plausibility of the alleged actions.

Discussion

86. The entitlement to pursue an effective cross-examination of the prosecution witnesses, and, in particular, the complainant, is an essential element of the rights afforded to an accused person. This entitlement assumes a special significance in cases, such as the present, where the outcome of the criminal proceedings turns largely on the credibility of the complainant, in the absence of independent corroborative evidence.

87. The right to cross-examine has been described as follows by the Court of Appeal in Director of Public Prosecutions v. P.R. [2020] IECA 68 (at paragraph 86):

“Cross-examination of a witness is a fundamental right of

every accused person and counsel on behalf of the appellant

cross-examined each complainant in a fulsome manner.

While cross-examination is one of the most important tools

available to an accused person, it is not without limits. The

aim of cross-examination is to challenge a witness’s

evidence by putting matters to the witness in an effort to

undermine the direct testimony or to demonstrate

unreliability and to seek to elicit evidence favourable to the

accused. When cross-examining a witness with a view to

attacking the credibility of the witness, matters may be

suggested to the witness which are not directly relevant to

the facts in issue, but a trial judge may disallow questions

which are improper or irrelevant to any matter in issue.”

88. The role of the trial judge is to ensure that cross-examination is conducted within its proper bounds. The approach to be adopted has been summarised as follows in People (DPP) v. A.H. [2022] IECA 156 (at paragraphs 24 to 26):

“A judge may question or intervene in a wider range of

circumstances than mere clarification; take for example,

where the question asked is unfair, where it is asked on a

false or inaccurate premise, or where the question seeks to

elicit inadmissible evidence. It is the experience of this

Court that on occasion, counsel may ask a question which

incorporates sub questions and so it becomes almost

impossible for a witness to answer the question, and indeed

for a jury to know which question is in fact being answered.

In those circumstances, or where the question is posed in

such a manner that it may not be properly understood, the

judge may well have to intervene, always with

circumspection and with regard to the fairness of the trial.

Care must also be taken to ensure that any intervention does

not give the impression of partiality. Whilst it does not arise in this case, it is well established that a judge may also intervene and, indeed, in the view of this Court, should intervene if cross-examination is unduly lengthy or repetitive.

The real issue, however, in the present case is whether the

interventions of the judge in the examination and cross-

examination of the appellant went beyond what may be

considered permissible and in effect disrupted the appellant’s

evidence, rendering the trial unfair. We observe at this point

that we deprecate the over-simplification implicit in simply

computing the number of interventions and using that as a

basis for criticism in and of itself.”

89. A trial judge must exercise caution where his or her interventions involve posing a question to the witness, as opposed to giving direction to the cross-examiner as to whether a particular line of questioning is permissible or a particular question requires clarification. The phrasing of a question posed by the trial judge might be misinterpreted by the parties—and in the case of a trial on indictment, by a jury—as the trial judge preferring one side’s evidence to that of the other. The risk of misinterpretation is greatest where the trial judge poses a series of questions to a witness, especially a complainant. The judge might be perceived as having taken on the role of an advocate for one side or the other. The tone of the questions might suggest that the trial judge has made a premature assessment of the credibility of the witness’s evidence.

90. There is a related risk as follows. An inappropriate intervention by the trial judge may undermine the effectiveness of the cross-examination itself. The crossexaminer typically builds up to a crucial point incrementally, by seeking to commit the witness to a particular proposition before exposing inconsistencies in their evidence. An untimely intervention by the trial judge may disrupt the intended sequence and prevent the exposure of an inconsistency. The issue here is not simply whether the trial judge appears impartial, but rather whether his or her interventions deprived the party of a fair and effective opportunity to challenge the witness’s account.

91. Much of the case law on excessive judicial intervention in the cross-examination of witnesses arises in the context of appeals rather than judicial review. There are, however, cases where excessive judicial intervention has resulted in convictions being set aside on judicial review. See, for example, O’Neill v. Director of Public Prosecutions [2025] IEHC 8. Judicial review is available where the conduct of criminal proceedings has been so fundamentally flawed as to deprive an accused person of a trial in due course of law. A material interference with an accused person’s ability to cross-examine the principal prosecution witness on issues central to guilt is capable of crossing that threshold.

92. In the present case, the trial judge did not merely intervene in the crossexamination: he took it over entirely for a period. The trial judge deployed the document—which had been prepared by the Applicant for his own use—to ask a series of questions of the complainant. The difficulty with this approach is that it enabled the complainant to parry, in general terms, questions which might otherwise have been more challenging had they been put directly by the Applicant by reference to the video footage.

93. The following two examples illustrate the extent to which the trial judge’s intervention undermined the strategy outlined in the Applicant’s crossexamination document.

94. The complainant, in his direct evidence, had alleged that the Applicant had called him an “orange bastard”. The cross-examination document highlighted the fact that the video footage had captured the Applicant uttering the word “trespasser” repeatedly and audibly. If the alleged sectarian insult had also been uttered, it would be reasonable to expect it to have similarly been captured and capable of being heard as part of the video footage. The line of questioning outlined in the cross-examination document envisaged that the complainant would be confronted with the asserted inconsistency between his narrative and the audio recording from the video footage.

95. In the event, the trial judge compressed the questioning on this issue to the following:

“JUDGE: […] So, Mr Gordon, the easiest thing to put to you

is that what the import of this is, is that Mr Taylor is saying

that he didn’t call you an orange bastard. What do you have

to say to that, please?

A. He called me an orange bastard, sir. He – he’s mistaken.

JUDGE: Okay. And Mr Taylor wants video 1 played again,

so we’ll do that at the end of this part, not just yet.”

96. The relevant extract from the video was played later but without any follow-up questions from the trial judge. In the absence of follow-up questions, the replaying of the video footage did not test the complainant’s account.

97. The second example relates to missing bodycam footage. The cross-examination document had identified, first, that the complainant was shown wearing a bodycam in the video footage; second, that the video footage from the bodycam would have been the most direct evidence of whether the alleged assault had occurred; and third, that the video footage from the bodycam had not been adduced in evidence.

98. The trial judge’s questioning established that the complainant had been wearing a bodycam. The complainant gave an explanation that camera equipment had subsequently been stolen. However, it was never established at the criminal trial whether the complainant’s own bodycam had recorded the incident; whether any footage from that bodycam had been downloaded prior to the alleged theft; whether it had been handed to the Gardaí; whether it formed part of the compilation before the court; or whether it was unavailable for some other reason. The fact, if fact it be, that camera equipment had been stolen several days later does not necessarily answer the separate question whether the relevant footage had already been downloaded, preserved, or disclosed.

99. By reformulating the questions, the trial judge converted a potentially important evidential challenge into a general exchange about the complainant’s personal honesty. The complainant was not required to address the existence, provenance, preservation and non-production of the bodycam footage. The result was that the Applicant was deprived of the opportunity to develop, step by step, a line of questioning directed to what may have been the most probative video recording of the alleged assault, and the court was left with an unresolved evidential gap on a matter central to the reliability of the complainant’s account.

100. It is correct to say that the Applicant was permitted to put a number of questions to the complainant subsequent to the trial judge’s cross-examination. This does not cure the unfairness. The trial judge’s intervention had altered the forensic character of the resumed cross-examination. The Applicant’s cross-examination document had identified a sequence of evidential propositions. The trial judge’s treatment of those propositions largely converted them into open questions inviting confirmation or denial.

101. Once that had occurred, and once the Applicant was told that the trial judge had already asked the questions and would not tolerate any “rehash” of same, the subsequent permission to ask additional questions could not fully restore the lost opportunity to develop those evidential propositions in their intended order and with their intended cumulative effect. This is because the trial judge’s intervention occurred at the very point at which the Applicant had intended to deploy a prepared sequence of questions, supported by reference to specific video footage, with a view to impeaching the credibility of the principal prosecution witness. The trial judge’s intervention deprived the Applicant of any realistic possibility of reconstructing the proposed sequencing of questions.

102. In summary, the outcome of the criminal proceedings turned on the credibility of the chief prosecution witness, namely the complainant. This is because there was no objective evidence, in the form of video footage, which directly captured or corroborated the complainant’s account of the assault. It was common case that the limited video footage which was adduced in evidence did not capture the key moments of the altercation. It was essential to the fairness of the criminal trial that the Applicant be afforded the opportunity to cross-examine the complainant and test his credibility. The effectiveness of the cross-examination was materially undermined by the trial judge’s conduct in taking over the crossexamination on the second day. The effect was to invite the complainant simply to reaffirm his earlier evidence, rather than to require him to engage sequentially with the objective features of the video and audio recording and the alleged inconsistencies in his account.

103. Judicial review is concerned with the legality and fairness of the process by which the trial was conducted. Accordingly, the threshold is whether the trial judge’s intervention in the cross-examination of a key prosecution witness was such as to compromise the accused person’s entitlement to a fair trial, including the effective opportunity to challenge the witness’s evidence. It is not necessary to establish that the impugned intervention necessarily altered the overall outcome of the criminal trial.

Witnesses not called

104. Insofar as a separate objection is made that certain witnesses were not called by the prosecutor, this is not a good ground of judicial review. It is well established that a prosecutor is entitled to determine which witnesses he or she considers necessary to prove their case. If a witness who has been identified in the disclosure documents is not called by the prosecutor, it is open to the accused person to do so. The transcript of the hearing before the Circuit Court demonstrates that the Applicant was informed, at an early stage, that the prosecution was under no obligation to call every person who had made a statement during the investigation. He was further advised that, should he wish to rely upon the evidence of any such person, it was open to him to compel their attendance by way of witness summons. In the event, the Applicant confirmed that he did not require certain witnesses to be called.

REASONABLE USE OF FORCE / SECTION 18 DEFENCE

Overview

105. The order granting leave to apply for judicial review permitted the Applicant to pursue the following amended ground. The Circuit Court judge misdirected himself in law and failed to interpret correctly the provisions of section 18 of the Non-Fatal Offences Against the Person Act 1997 (as amended) and/or failed to give effect to sections 18(1) and 18(5) thereof, insofar as both provisions refer to the necessity to view an accused person’s conduct in the circumstances as he or she believed them to be.

Legislative context

106. Section 18(1) of the Non-Fatal Offences Against the Person Act 1997 provides, in relevant part, as follows:

“The use of force by a person for any of the following

purposes, if only such as is reasonable in the circumstances

as he or she believes them to be, does not constitute an

offence—

(a) to protect himself or herself or a member of the

family of that person or another from injury, assault

or detention caused by a criminal act; or

(b) to protect himself or herself or (with the authority of

that other) another from trespass to the person; or

[…]

(e) to prevent crime or a breach of the peace.”

107. Section 18(5) of the Act provides as follows:

“For the purposes of this section the question whether the act

against which force is used is of a kind mentioned in any of

the paragraphs (a) to (e) of subsection (1) shall be

determined according to the circumstances as the person

using the force believes them to be.”

108. Section 1(2) of the Act provides as follows:

“For the purposes of sections 17, 18 and 19 it is immaterial

whether a belief is justified or not if it is honestly held but

the presence or absence of reasonable grounds for the belief

is a matter to which the court or the jury is to have regard, in

conjunction with any other relevant matters, in considering

whether the person honestly held the belief.”

109. Section 22(2) of the Act abolishes any defence available at common law in respect of the use of force for any of the purposes mentioned in section 18(1).

110. The Supreme Court held in People (Director of Public Prosecutions) v. Crawford [2024] IESC 44 (at paragraphs 67 to 72) that the test under section 18 operates in two stages. The first stage is “entirely subjective”: the question is whether the accused person honestly believed that circumstances existed of the kind specified in any of paragraphs (a) to (e) of section 18(1). In assessing whether that honest belief was in fact held, the trier of fact is required under section 1(2) to have regard to the presence or absence of reasonable grounds for the belief, and to all other relevant circumstances. The belief need not be reasonable, provided it was honestly entertained.

111. The second stage of the test under section 18 is objective in form, but is assessed by reference to the accused person’s subjective perception of the circumstances. The question is whether the force used by the accused person was reasonable, i.e. an objective standard, but that question is to be determined by reference to the circumstances as the accused person believed them to be, and not by reference to the circumstances as they actually were, i.e. a subjective standard.

112. The Supreme Court (per Donnelly J.) approved the formulation of the test as articulated by Edwards J. in the Court of Appeal in Crawford [2023] IECA 87 (at paragraph 49):

“The test therefore is not whether the accused reasonably

believed that the force used by him or her was necessary in

the circumstances as he/she believed them to be. It is

whether the objective observer would regard the amount of

force actually used as having been reasonable, in the

circumstances as the accused believed them to be. For the

purpose of making that assessment, s. 1(2) of the Act of 1997

is engaged to the following extent. It is engaged with respect

to the accused’s asserted belief as to the circumstances

obtaining, i.e. in considering whether he or she honestly held

the asserted belief, even if it is as to a mistake of fact. What

s. 18(1) requires is the identification of the circumstances

which the accused genuinely believed to obtain at the time,

not the circumstances that he might reasonably or justifiably

have believed to obtain at the time. As Prendergast puts it,

‘a mistake of fact only has to be sincere; it does not have to

be sincere and reasonable in helping to exculpate the

defendant’.”

113. The Supreme Court (per Donnelly J.) summarised the position as follows (at paragraph 72):

“An accused must be acquitted if they honestly believed that

they were using force for one of the purposes set out in

s. 18(1)(a) to (e), and if the degree of force used was

objectively reasonable in the circumstances that the accused

believed existed. It is important to clarify however that

overall s. 18(1) and s. 1(2) when read together require a

focus on the subjective belief of the accused as to the overall

necessity to use the force that they actually used. Thus, while

‘reasonable’ connotes an objective test, the entire test is

underpinned by the requirement that the accused must have

an honest belief that the circumstances necessitated the use

of the force to which they actually resorted. It could never

be objectively reasonable for a person to use force in self-

defence if the person using the force did not themselves

believe that the force used was necessary for self-defence.”

114. It follows from this analysis that whether the conduct against which force was used was, on an objective view, actually a “criminal act” within paragraph (a), or a “trespass to the person” within paragraph (b), or a “crime or a breach of the peace” within paragraph (e), is not the question which section 18 directs the court of trial to determine. Section 18(5) is in mandatory terms: the question is determined “according to the circumstances as the person using the force believes them to be”.

Circuit Court hearing

115. The Applicant expressly invoked section 18 of the Non-Fatal Offences Against the Person Act 1997 during the course of the Circuit Court hearing. The Applicant submitted that he had intervened to protect another person, Robert Brady. The Applicant submitted that Mr Brady was a vulnerable man and described him as having a brain injury. The Applicant further submitted that the video footage showed him going to Mr Brady’s assistance and then being forcibly brought to the ground himself by security personnel.

116. The transcript records the Applicant stating that he wished to read out section 18 of the Non-Fatal Offences Against the Person Act 1997. The trial judge indicated that he was familiar with the provision. The trial judge cited section 18(1)(a)— which refers to the justifiable use of force to protect another from injury, assault or detention caused by a criminal act—and then asked, “What’s the criminal act?” The Applicant’s answer was: “Unlicensed trespassers trying — pushing a person with a disability down to the ground. If that’s not a criminal act.”

Circuit Court ruling

117. Having cited the provisions of section 18(1)(a) of the Non-Fatal Offences Against the Person Act 1997, the Circuit Court judge ruled as follows: “I think it’s upon that subsection that Mr Taylor seeks to rely that he was aware that Mr Brady was a person who had sensitive needs and that he went to the aid of Mr Brady to prevent Mr Brady being assaulted. And that may be the case but the section and subsection require that it has to be to protect another person from injury or assault or detention caused by a criminal act and I can detect no criminal act being present in this occasion. I’m not going into the legalities or otherwise of the High Court order. I am certainly not going to look behind a High Court judge’s order in that regard. But it seems to me that there was a High Court order that there was posse comitatus issued by the County Registrar that the persons who were at the scene were lawfully directed to be at the scene and I cannot detect from the video footage the evidence or otherwise any criminal act that would resolve [recte, absolve] Mr Taylor of culpability under section 18(1)(a) of the Non-Fatal Offences Against the Person Act as he has asked me to rely on.

The other piece of legislation that Mr Taylor has brought to

my attention is the Criminal Law (Defence and the Dwelling) Act 2011, and in particular section 2 thereof. Section 2(1)

states: ‘Notwithstanding the generality of any other

enactment or rule of law and subject to subsections (2)

and (3), it shall not be an offence for a person who is in his

or her dwelling, or for a person who is a lawful occupant in

a dwelling, to use force against another person or the

property of another person’. It then goes on to explain the

circumstances.

I am entirely satisfied that, in fact, no such case is made by

Mr Taylor that it was either his dwelling house or that he was

the lawful occupant of the dwelling house. We know who the

owners of the dwelling house were. We know the

circumstances. And Mr Taylor himself, which I do not

believe for a moment, states that he was only in that property

for the purpose of drinking tea. It seems to me quite clear

that a posse of men was assembled, knowing that the sheriff

or the bailiff or whomever was coming around to attempt a

repossession, so much so that we hear in the evidence that a

woman shouted, ‘They’re here, they’re here’. So I cannot, unfortunately, accept any of the defences put forward by Mr Taylor in respect of the matter, as they simply do not apply as he has sought to apply them to this case.”

118. The trial judge then went on to consider whether the evidence established beyond a reasonable doubt that the Applicant had committed an assault against the complainant. The trial judge ruled as follows:

“That comes then to the matter of whether or not the State,

on appeal, have proved their case beyond a reasonable doubt

that Mr Taylor assaulted the alleged victim in the matter, Mr

Ian Gordon. I haven’t the slightest doubt, Mr Taylor, I have

to say, that you did commit an assault within the meaning of

the section and subsection upon Mr Gordon. I accept that the

evidence of Mr Gordon may have diverged slightly from his

statement as to the exact geographical location of the

incident. He stated first it was at the side of the house. In

general terms, it was. He stated that he thought that when

the initial incident happened, he was opposite the gable of

the house. He then accepted that perhaps it was closer to the

gate, and we know that the incident ended at the gate of the

house. I can easily accept that, in this very shocking

incident — and this was simply a spectacle, Mr Taylor —

somebody might not recall the exact, precise geographical

location. As far as I am concerned, the description of the side

of the house is perfectly acceptable to me. I also accept as a

matter of fact that the evidence on video 5 — or I think it was video 5, the first few seconds of that — somebody mentions ‘balls’. It is not immediately apparent to me whether it is somebody saying, ‘Catch him by the balls’, or somebody saying, ‘He has me by the balls’, and obviously I am not making my decision on that basis.

It is also the fact, Mr Taylor, as you have pointed out, and

you are quite right, that the video evidence does not,

regrettably, depict the exact incident. But what it does show

me, Mr Taylor, for my own reference in a global sense, is that

you presented before any of this happened in a very agitated

state indeed. In fact, on one of the first videos we can see

you gesticulating your finger with no personal contact, I

accept, but gesticulating your finger at a gentleman, who I

think is the same Mr Gordon on the video, several times,

extremely aggressively, shouting: ‘Trespasser, trespasser,

trespasser, trespasser’.

You then uttered offensive language referring to persons,

maybe not Mr Gordon — again, I accept that — as black and

tans, and you were extremely agitated. The other very telling

and aggravating matter is that this was a planned resistance,

it seemed to me. I cannot necessarily take that into account

for the purpose of a section 2 assault, but there was certainly

a bunch of able men gathered, it seemed to me, for a purpose.

And I see you are shaking your head at me, but no other

explanation is logical, that these men were gathered in the

kitchen for the purpose of trying to prevent this

repossession.”

Discussion

119. The Director of Public Prosecutions submits that the assessment of whether the statutory defence was made out on the evidence is a matter for the trial judge, as the trier of fact, and not an appropriate matter for judicial review. It is further submitted that the Applicant did not adduce evidence himself in support of the statutory defence and that the trial judge correctly analysed such evidence as was available and ruled that the statutory defence did not arise.

120. With respect, this submission does not address the gravamen of the amended ground of judicial review. The ground is that the trial judge misdirected himself in law and failed to interpret correctly the provisions of section 18.

121. The judgment in People (Director of Public Prosecutions) v. Crawford (discussed above) confirms that the first stage of the test is “entirely subjective”.

The question for the trier of fact—whether a judge or a jury—is whether the accused person honestly believed that circumstances of the kind specified in any of paragraphs (a) to (e) of section 18(1) existed. The belief need not be reasonable, provided that it was honestly entertained.

122. It follows that the first question the trial judge was required to address was whether the Applicant honestly believed that circumstances existed in which his use of force was for the purpose of protecting another person (Mr Brady) from injury, assault or detention caused by a “criminal act”. In assessing whether the Applicant held such an honest belief, the trial judge was required to have regard to the presence or absence of reasonable grounds for the belief, and to all other relevant circumstances. It would have been open, for example, to the trial judge to attach weight to the involvement of the County Registrar, and the attendance of members of An Garda Síochána, as circumstances militating against a finding that the Applicant honestly believed that the repossession of the property involved a “criminal act”.

123. In the event, however, the trial judge misinterpreted the statutory test and asked himself the wrong question. The question which the trial judge asked and answered was whether the evidence established objectively that a “criminal act” had in fact been committed at the scene. The answer to that question was supplied by the trial judge’s own objective assessment of the evidence, including the video footage. The trial judge stated that he “could not detect” any criminal act.

124. Section 18(5) provides that the question of whether the act against which force was used is of a kind mentioned in any of paragraphs (a) to (e) of subsection (1) is to be determined “according to the circumstances as the person using the force believes them to be”. The inquiry, at that stage, is directed not to the trial judge’s own appraisal of the circumstances, but to the state of mind of the accused person. By substituting an objective inquiry of his own for the subjective inquiry mandated by the statute, the trial judge erred in his interpretation of the statutory defence.

125. The character of the misdirection may be illustrated by contrasting the ruling under review with the sample charge formulated by Donnelly J. in Crawford (at paragraph 140). The sample charge begins with the proposition that “you must look at the decision to use force from the accused’s perspective”; it identifies the controlling question as whether the accused person “had an honest belief that the circumstances existed that permitted him to use force to defend himself”; it directs the jury to take into account, in assessing the genuineness of the belief, “whether there is a presence or an absence of reasonable grounds for his belief and also all the relevant facts of this case”; it emphasises that “even if it was unjustified the important issue here is whether he honestly had that belief”; and only then does it turn to the assessment of force, which is to be conducted by reference to “what the reasonable person would do in the circumstances that the accused honestly believed existed?”.

126. The essential subjective elements of the analysis described in the sample charge are not present, or even acknowledged, in the ruling of the Circuit Court. The trial judge did not address what the Applicant believed nor whether that belief was honestly held. The trial judge quoted section 18(1) in full but made no reference to section 18(5).

127. The Director of Public Prosecutions submits that any error on the part of the trial judge was an error of law within jurisdiction, and thus not amenable to judicial review. The judgments of the Supreme Court in Lennon v. District Judge Clifford [1996] 2 IR 590; Buckley v. Kirby [2000] 3 IR 431; and Sweeney v. Fahy [2014] IESC 50 are cited in support of this submission.

128. Those judgments establish an important limitation on the availability of judicial review in criminal proceedings. Judicial review is not to be used as a disguised appeal on the merits. In Lennon, the Supreme Court held that, save perhaps in the most extreme case, insufficiency of evidence does not deprive the District Court of jurisdiction to determine the matter before it. The assessment of the evidence is a matter for the court of trial. In Buckley, the Supreme Court refused leave to apply for judicial review in circumstances where the applicant’s true complaint was that there was insufficient evidence to justify his conviction and where an appeal to the Circuit Court was available and pending.

129. The governing principle has been elaborated upon as follows in Sweeney v. Fahy (at paragraph 3.16):

“It seems to me that while there may not be complete

consistency between all of the authorities, the balance of the

case law suggests that the following principles apply. First,

judicial review is concerned with the lawfulness rather than

the correctness of the decision sought to be challenged.

Second, where the jurisdiction of the relevant decision maker

to embark on the process of making the relevant decision is

either not challenged or is established, an error by the

decision maker in reaching the necessary conclusions to

determine the appropriate decision to be made does not, of

itself, necessarily render the decision unlawful. At a

minimum, it requires a fundamental error to raise the

prospect that the decision is not merely incorrect but also

unlawful. It is unnecessary, for the purposes of this case, to

attempt any exhaustive examination of what might be said to

be the type of error which is sufficiently fundamental to

render a decision unlawful in all types of cases. For present

purposes, it can at least be said that issues concerning the

adequacy of evidence before a decision maker (as opposed

to a complete absence of evidence of a necessary matter) will

not render a decision unlawful. Third, even if judicial review

might otherwise lie, a court will not exercise its jurisdiction

where the law allows for an appeal and where an appeal

would be an appropriate remedy to deal with the complaint

made. Thus, there may be circumstances where judicial

review will not lie against a first instance or initial decision

but where it might lie against a similar decision of a body

from which no appeal or no further appeal lay.”

130. Judicial review will not normally lie where the objection is that the lower court reached an incorrect conclusion on the evidence. It will, however, lie where the error is such that the lower court did not determine the matter in accordance with law.

131. I turn next to apply these principles to the present case. Had the Applicant’s objection been that the Circuit Court should have drawn a different inference from the video footage, then judicial review would not lie. The court of judicial review cannot re-evaluate the credibility of witnesses, reweigh the video evidence, or substitute its own view of the facts for that of the Circuit Court. These are all matters calling for evidential assessment and as such are within the jurisdiction of the Circuit Court as the court of trial.

132. The ground of judicial review actually advanced is different. The essence of the ground is that the trial judge asked himself the wrong question, with the result that the availability of the statutory defence was never properly considered. The question for the court of trial was whether the Applicant honestly believed that circumstances existed which brought his use of force within one of the statutory purposes identified in section 18(1), and, if so, whether the force used was objectively reasonable in the circumstances as he believed them to be. The presence or absence of reasonable grounds for such belief was plainly relevant to whether the belief was honestly held, but it was not a substitute for the statutory inquiry. The trial judge instead asked whether an objectively established “criminal act” could be detected. In so doing, the trial judge failed to address the statutory question in the form in which the Oireachtas requires it to be addressed. This error goes to the very lawfulness of the conviction, rather than to its correctness.

133. The judgment in Killeen v. Director of Public Prosecutions [1997] 3 IR 218 confirms that a lower court which has subject-matter jurisdiction over a criminal matter may nevertheless exceed its jurisdiction if it fails to determine the precise question assigned to it for decision. On the facts, the District Court judge had failed to adjudicate in any way on the actual question remitted to him, i.e. whether the materials before him were sufficient to put the applicants on trial.

134. The position here is equivalent. The Circuit Court had subject-matter jurisdiction to hear the appeal and to determine whether the charge of assault was made out. The trial judge committed an error of law going to jurisdiction by failing to determine the precise question which the Oireachtas requires to be addressed in the context of section 18 of the Non-Fatal Offences Against the Person Act 1997. The trial judge overlooked the express provisions of subsection (5) of section 18 and failed to apply the “honest belief” limb of the test. As in Killeen, the objection is not that the lower court erred in its assessment of the evidence but rather that it failed to address the statutorily assigned question.

135. I am fortified in this conclusion by the analysis of the Court of Appeal in Donoghue v. Judge O’Donoghue [2018] IECA 26, [2020] 3 IR 399. There, Hogan J. observed, obiter dicta, that a person who could demonstrate that the Circuit Court had disposed of his case on the basis of an interpretation of a statute which was incorrect according to established and clear authority would appear to be entitled to seek correction of the law and a return to the lower court for consideration by reference to the correct interpretation.

CONCLUSION AND PROPOSED FORM OF ORDER

136. The principal findings in this judgment can be summarised as follows. First, the Applicant’s attempted reliance on the concept of double jeopardy is misconceived. There is nothing in the history of the criminal prosecution which infringes the values that the concept of double jeopardy is intended to protect. The Applicant has only ever been prosecuted once arising out of the events of

11 December 2018. The District Court convicted him of the single offence of which he was charged. The Applicant was not acquitted of anything by the District Court. The Circuit Court appeal did not place the Applicant in jeopardy anew; rather, it formed part of a single, continuous criminal process in which the original conviction was subject to a full rehearing at his own instance.

137. Second, the charge of assault preferred against the Applicant did not lack sufficient specificity. In the case of an alleged assault under section 2, it is sufficient that the summons identifies the statutory offence charged, together with the date and location of the alleged offence. The prosecution is not required to prove every factual particular contained in a complainant’s witness statement, provided that the statutory ingredients of assault are established. Physical contact with the complainant, even if not proved to have been contact with the complainant’s genitals, is capable of constituting an application of force for the purpose of section 2 of the Non-Fatal Offences Against the Person Act 1997.

138. Third, the conduct of the cross-examination rendered the criminal trial unfair. The credibility of the complainant was central to the prosecution case, particularly where the video footage did not capture the precise act alleged. The Applicant had prepared a document identifying specific matters to be put to the complainant by reference to the video and audio footage, including alleged inconsistencies and questions concerning missing bodycam footage. The Circuit Court judge, by taking over the questioning for a period and putting the matters in a compressed form, materially undermined the effectiveness of the crossexamination. The Applicant was thereby deprived of a fair and effective opportunity to test the complainant’s account on matters central to the prosecution case.

139. Fourth, the Circuit Court judge erred in law in his treatment of the statutory defence under section 18 of the Non-Fatal Offences Against the Person Act 1997. Section 18 required the judge to determine whether the Applicant honestly believed that circumstances existed which brought his use of force within one of the purposes specified in subsection (1), and, if so, whether the force used was objectively reasonable in the circumstances as he believed them to be. The trial judge did not apply that statutory test. More specifically, the trial judge failed to determine the Applicant’s asserted belief as to the circumstances in which force was used and failed to assess the reasonableness of the force by reference to those believed circumstances. The error went to jurisdiction because the trial judge failed to determine the precise question that the Oireachtas requires to be addressed in the context of section 18.

140. Having regard to the third and fourth findings above, an order of certiorari will be made setting aside the conviction entered against the Applicant by the Circuit Court. I set out below my provisional views on whether there should be an order for remittal.

141. On the working assumption that the court has a discretion to remit the matter to the Circuit Court for reconsideration, my provisional view is that the discretion should be exercised against remittal. The Applicant has already served the twomonth custodial sentence imposed in respect of the alleged assault. If the matter were remitted and the Applicant—who once again enjoys the presumption of innocence—were convicted, there is no realistic prospect that any additional custodial sentence would be imposed. Further, any rehearing would now take place some seven and a half years after the incident. Such a delay is excessive in the context of summary criminal proceedings and militates against directing a rehearing. In all the circumstances, there does not appear to be a sufficient public interest in remitting the matter for reconsideration.

142. For completeness, it should be acknowledged that there may be an anterior question as to whether remittal to the Circuit Court for reconsideration is available at all: see, generally, McGonagle v. District Court for District No. 1 [2023] IEHC 207.

143. As to legal costs, my provisional view is as follows. The Applicant has succeeded in obtaining the principal relief sought, namely the quashing of his conviction. It is correct to say that the Applicant did not succeed on all grounds pleaded. Those grounds did not add materially to the length of the hearing nor to the costs which will have been incurred by the Respondent. The parties made very concise oral submissions, and the judicial review hearing was heard in half a day. Much of that time was expended on issues which were common to all grounds of judicial review, such as an exposition of the legal and factual context. I propose, therefore, to make an order allowing the Applicant, as a litigant in person, to recover his outlay and other out-of-pocket expenses. The recoverable costs include court fees and stamp duty paid; travel and accommodation expenses necessarily incurred for the purposes of the proceedings and properly vouched; and reasonable copying and postage expenses. The recoverable costs do not, however, include any sum in respect of the Applicant’s own time, expertise or labour in conducting the litigation (Dawson v. Irish Brokers Association [2002] IESC 36, [2002] 2 ILRM 210; Skoczylas v. Minister for Finance [2024] IECA 201). The Applicant represented himself in these proceedings and thus did not incur any expense in relation to the retention of legal practitioners.

144. For the reasons explained at paragraphs 24 to 28 above, the title of the proceedings will be amended by removing the Circuit Court judge as respondent and substituting the Director of Public Prosecutions as respondent in lieu.

145. If either party wishes to contend for a form of order other than that proposed,then that party should file written legal submissions in the Central Office of the High Court by 20 July 2026 and serve a copy on the other party. If no submissions are filed by the specified date, an order will be drawn up along the lines proposed above.

Appearances

The applicant appeared as a litigant in person

David Staunton for the respondent instructed by the Chief Prosecution Solicitor