High Court: Renewed application for leave to apply for judicial review refused

Andrew McKeown BL

About this case:

• Citation:
  [2021] IEHC 12
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Background

The initial application for leave to apply for judicial review was refused in October 2020 in O’Callaghan v Director of Public Prosecutions [2020] IEHC 463. Mr O’Callaghan submitted a further affidavit and sought to renew his application for leave in November 2020.

He had been charged with two offences in respect of an armed robbery said to have been carried out at Ulster Bank, Stillorgan, Co Dublin in September 2017. He initially entered a plea of not guilty. He and a number of co-accused were tried before Judge Pauline Codd sitting with a jury in March 2020, represented by solicitor and junior and senior counsel.

During the course of the trial, it was indicated to the trial judge that the Director of Public Prosecutions would be entering a nolle prosequi in respect of some of the charges against Mr O’Callaghan, and that he would be entering a guilty plea in respect of an existing count and a new count. He was formally arraigned on the new count, and entered a guilty plea.

He subsequently sought to withdraw his guilty plea. That application was refused by the trial judge.

Mr O’Callaghan now alleges that he pleaded guilty to one charge only, being possession of an imitation firearm. As part of his renewed application for leave, he alleged that the trial judge should not have allowed him to diverge from his original plea of not guilty. As of the date that the renewed application for leave was made, he had not yet been sentenced.

Renewed application for leave

The principal argument advanced in support of the renewed application for leave was that the High Court had been “misled” as to the circumstances surrounding his trial before the Circuit Criminal Court. This, Mr Justice Garrett Simons said, was not so: “As appears from the principal judgment, this court had been fully cognisant of the procedural history.”

The judge found that none of the complaints advanced by Mr O’Callaghan were amenable to judicial review, as the complaints all relate to rulings made in the course of an ongoing criminal trial. The judge noted that the Supreme Court has endorsed the well-established principle that the taking of judicial review proceedings in the course of a criminal trial will only be appropriate in exceptional circumstances in its recent judgment in E.R. v Director of Public Prosecutions [2019] IESC 86, citing Director of Public Prosecutions v Special Criminal Court [1999] 1 I.R. 60, and Freeman v Director of Public Prosecutions [2014] IEHC 68.

There are two principle reasons for this. First, the taking of judicial review proceedings prior to the conclusion of a criminal trial has the effect of disrupting the unitary nature of the trial, and may create chaos in the criminal justice system and is open to abuse. Second, the High Court’s function in determining judicial review proceedings is far more limited than that which the Court of Appeal would exercise in determining an appeal against conviction and sentence. Judicial review is concerned principally with the legality of the decision-making process, and not with the underlying merits of the ruling under challenge (save in cases of irrationality).

The court held that Mr O’Callaghan should pursue his complaints, in the first instance, before the Circuit Criminal Court and, if necessary, by way of an appeal thereafter to the Court of Appeal.

Whilst not determinative of the application, the judge noted that Mr O’Callaghan is currently serving a term of imprisonment in respect of an unrelated conviction. He had been sentenced, in November 2018, to a term of imprisonment for a period of eight years, with the final year suspended. No complaint was made in these judicial review proceedings as to this earlier conviction, though an appeal is pending before the Court of Appeal against that conviction.

Thus, the judge said that irrespective of the outcome of these judicial review proceedings, Mr O’Callaghan would remain in custody. There is no prejudice caused to him, therefore, in his having to pursue the conventional route of an appeal to the Court of Appeal against the orders of the Circuit Criminal Court, instead of judicial review.

Conclusion

The renewed application for leave to apply for judicial review was refused.