High Court: Criminal trial fundamentally unfair due to judicial interventions

About this case:

• Citation:
  [2025] IEHC 8
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons observed that the trial judge “went on to insult the accused personally, asking sarcastically whether the accused, a qualified barrister, had gone to any classes or received any lectures. In truth, it was the trial judge, not the accused, who exhibited ignorance of the procedural requirements governing a request to refer a consultative case stated to the High Court.”

The applicant represented himself. Jane Horgan-Jones BL appeared for the respondents, instructed by the Chief State Solicitor.

Background

The applicant, a qualified barrister, was seen holding a mobile phone by gardaí and was charged with an offence of holding a mobile phone while driving contrary to s.3 of the Road Traffic Act 2006. 

At hearing, the applicant contended inter alia that the phone was connected to his Bluetooth headphones and so formed part of a hands-free kit, and asked the court to refer a consultative case-stated on questions of statutory interpretation and mens rea to the High Court. 

The trial judge refused to engage with the applicant’s request to refer a consultative case stated to the High Court and his indications that he wished to make submissions on constitutionality and ECHR issues, indicating “…appeal  if  you  wish.  You  always  get a better class of Judge in the Circuit Court. Intellectually superb — or  superior  is  what  I  mean.  You’ll    always  get  a  brighter,  better  judge  in  the  Circuit  Court  and  if  you’re unhappy with my decision I would encourage you to appeal.”

The trial judge made extensive interventions including purporting to cross-examine the applicant and querying whether he had attended class whilst obtaining his degree, remarking that he was surprised at his lack of knowledge on procedure and decorum, which interfered with the applicant’s ability to make his submissions.

Having been convicted by the District Court, the applicant initiated judicial review proceedings alleging that the conduct of his criminal trial before the District Court had been fundamentally unfair.

The proceedings came before the High Court by way of a telescoped hearing of the application for leave to bring judicial review proceedings and the substantive application for judicial review.

The High Court

Mr Justice Simons considered that a principal issue for determination was whether the conduct of the trial before the District Court was such that the applicant received an unfair hearing which could not be corrected by an appeal to the Circuit Court, highlighting that, in general, judicial review is not normally appropriate where the option to appeal is available.

The judge noted that the circumstances in which judicial review may be appropriate, notwithstanding the availability of a right of appeal, were summarised in Sweeney v District Judge Fahy [2014] IESC 50 and referenced E.R. v Director of Public Prosecutions [2019] IESC 86 in stating that “an applicant for judicial review in criminal proceedings has the ‘substantial burden’ of showing the deprivation of a right. It is not enough to ground a successful application for judicial review that the trial judge might have made an error of fact, nor even an incorrect decision of law.”

In considering the fairness of the applicant’s trial, Mr Justice Simons observed that the trial judge exhibited hostility toward the applicant and temporarily suspended the hearing for no apparent reason, banishing the applicant to the back of the courtroom for a period.

The court also considered: “It is an essential feature of a trial in due course of law that the trial judge must remain above the fray… The conduct engaged in by the trial judge went far beyond a legitimate exercise of seeking clarification or elaboration of the evidence. Rather, it amounted instead to a hostile cross-examination of the accused by the trial judge on one of the central factual issues in the case, namely, what, if anything, the accused had been holding in his hands while driving.”

Mr Justice Simons also expressed concern at the trial judge’s later refusal to allow the applicant to take up a copy of the hearing transcript, finding that this “is especially important in circumstances where the District Court judge will not normally be a party to the judicial review proceedings and will not, therefore, be in a position to contradict any inaccuracies in the other side’s recollection of events”.

The judge further remarked upon the trial judge’s failure to engage with the applicant’s request for a consultative case stated, highlighting: “The statement of reasons did not need to be extensive: the trial judge was required to explain briefly why he considered the request for a consultative case stated to be frivolous.”

In this regard, the court observed that “the trial judge signally failed to engage with the request for a consultative case stated. The trial judge prevented the accused from advancing his arguments in support of this request. The trial judge declined to consider the written text of the two proposed questions of law. No proper reasons were ever provided for the refusal to refer a consultative case stated.”

Mr Justice Simons opined: “Any objective observer, informed of all of the foregoing, would be left with the impression that the trial judge had not approached the hearing with an open mind.”

The court was unconvinced by the remaining challenges in the applicant’s statement of grounds relating to the adjournment of his trial and moot constitutional issues.

Conclusion

Accordingly, the High Court determined that the applicant satisfied the threshold of arguability in respect of the fairness of his trial and the trial judge’s failure to provide reasons for refusing to refer a case stated, indicating that the conviction would be set aside and that the proceedings would be adjourned to facilitate written submissions as to whether there should be a remittal.

O’Neill v Director of Public Prosecutions & Ors [2025] IEHC 8