[2025] IEHC 457
Record No. 2024/1213 JR
THE HIGH COURT
JUDICIAL REVIEW
Conviction – Criminal Justice (Public Order) Act 1994 s. 6 – Fair trial rights – Applicant seeking compensatory damages for a pleaded breach of her constitutional rights – Whether the matter should be remitted for a re-hearing before a different judge
Facts: The applicant, Ms Burke, was convicted of an offence pursuant to the provisions of s. 6 of the Criminal Justice (Public Order) Act 1994 at Ballina District Court on 20 June 2024, with a fine of €350 being imposed and six months to pay, and a second charge (under the same provision) was taken into consideration. Section 6 of the 1994 Act makes it an offence for a person, in a public place, to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned. This High Court judgment concerned the orders made at Ballina District Court on 20 June 2024, in circumstances where the applicant was not afforded fair trial rights, and the judgment primarily addressed whether or not it would be appropriate for the Court, in the particular circumstances of this case - where the second respondent, the Director of Public Prosecutions, did not oppose the granting of an order of certiorari quashing certain orders as made by the District Court on 20 June 2024 - to: (i) remit the matter for a re-hearing before a different District Court Judge; and/or (ii) to award compensatory damages to the applicant for a pleaded breach of her constitutional rights.
Held by the High Court that, taking everything into account, it respectfully adopted the view of the Supreme Court in Sweeney v Brophy [1993] 2 IR 202, where Hederman J held at p. 211 that “the proper exercise of the Court’s discretion would require that the matter should not be remitted to the District Court in circumstances where the applicant has endured enough and the prosecution cannot be acquitted of all the blame for some, at least, of what went wrong at the trial” and thus the High Court was not prepared to remit the matter for further hearing. The High Court noted that the applicant did not contend that there was a malicious prosecution in this case and although a miscarriage of justice was one of the grounds upon which the applicant sought relief, and the applicant averred that she was “the victim of a serious miscarriage of justice” by way of affidavit affirmed on 30 September 2024, the applicant did not elaborate upon that claim by way of oral or written submissions to the High Court. Further, the High Court noted that the averment that she was “the victim of a serious miscarriage of justice” was primarily relied upon by the applicant to argue against remittal, not to ground an award of compensatory damages and, in any event, the applicant did not contend at any stage that she came within the provisions of the Criminal Procedure Act 1993. Thus, and in all the circumstances of the case, the High Court was of the view that the applicant was not entitled to an award of compensatory damages.
The High Court made the following orders: (i) an order of certiorari quashing the orders as made by the District Court on 20 June 2024; and (ii) an order prohibiting any further prosecution of the applicant in the District Court.
Application granted.
JUDGMENT of Ms Justice Sara Phelan delivered on the 14 th day of August 2025
| Introduction | 1 |
| Factual Background | 2 |
| Procedural Background | 3 |
| Discussion | 3 |
| Is a remittal to the District Court appropriate? | 4 |
| Is the awarding of compensatory damages appropriate? | 8 |
| Conclusion | 9 |
| Costs | 10 |
This judgment concerns orders made at Ballina District Court on 20 June 2024, in circumstances where the applicant was not afforded fair trial rights, and the judgment primarily addresses whether or not it would be appropriate for the Court, in the particular circumstances of this case – where the second-named respondent, the Director of Public Prosecutions (“the Director”), does not oppose the granting of an order of certiorari quashing certain orders as made by the District Court on 20 June 2024 – to:
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i. remit the matter for a re-hearing before a different District Court Judge; and/or
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ii. to award compensatory damages to the applicant for a pleaded breach of her constitutional rights.
For the reasons set out hereunder, this Court:
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i. grants an order of certiorari quashing the orders as made by the District Court on 20 June 2024;
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ii. does not consider it appropriate to remit the matter for a re-hearing; and
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iii. does not consider an award of compensatory damages to the applicant to be necessary, or appropriate, in all the circumstances of the case.
Section 6 of the Criminal Justice (Public Order) Act 1994 (as amended) makes it an offence for a person, in a public place, to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned. The applicant was convicted of an offence pursuant to the provisions of s.6 of the Act of 1994 at Ballina District Court on 20 June 2024, with a fine of €350 being imposed and six months to pay, and a second charge (under the same provision) was taken into consideration.
This conviction arose in circumstances where, arising out of events that transpired in the early afternoon of 20 June 2024 in Swinford, Co Mayo, the applicant had been arrested at 13:58 on 20 June 2024 and charged with the offences as set out above at 16:15 on the same date. The applicant was then conveyed to Ballina District Court and when it became apparent to the District Court Judge that the applicant was not prepared – as was her entitlement – to enter into a bail bond, the District Court Judge decided to hear the case immediately (commencing at approximately 17:10 on the same date), without affording the applicant time to prepare her defence, for example, by way of considering whether to:
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— engage legal representation;
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— request disclosure;
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— ascertain if CCTV footage were available;
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— review mobile phone footage;
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— review the custody record;
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— review the Garda notebook/statement;
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— ascertain if there were witnesses available, etc.
It appears that the District Court Judge was of the view that if he did not hear the matter immediately, the applicant would be remanded in custody pending her trial – by reason of her unwillingness to enter into a bail bond – and in circumstances where the ultimate penalty was unlikely to have been a custodial sentence equal to or in excess of the time that the applicant would spend in custody on remand, the District Court Judge formed a view that the applicant's best interests would be served by an immediate hearing. Having heard evidence from Garda Padraig O'Connor and the applicant, and submissions from the applicant, the District Court Judge convicted the applicant as set out at §3 above.
Following an ex-parte leave hearing on 25 November 2024 (with the ex-parte motion docket being dated 30 September 2024), leave was granted by the High Court on the same date permitting the applicant to apply by way of judicial review for the reliefs as specified in the statement of grounds filed on 30 September 2024, being inter alia an order of certiorari, quashing the order of the District Court made on 20 June 2024 and as more particularly set out at §3 above. The High Court also extended the time, for the bringing of the judicial review application, to 25 November 2024. The applicant affirmed an affidavit on 30 September 2024 in support of the matters set out in the statement of grounds, which said affidavit exhibited the charge sheets, a transcript of the digital audio recording (DAR) of the hearing on 20 June 2024, the orders of the District Court and the notice of appeal (which the applicant had lodged as a fall-back in the event of her application for certiorari being unsuccessful). A further affidavit was also affirmed by the applicant on 30 September 2024 in support of her application to extend time.
A statement of opposition was filed by the Director on 16 December 2024, and Garda O'Connor swore an affidavit on the same date in support of the matters set out in the statement of opposition. There then followed three further affidavits, the first affirmed by the applicant on 07 January 2025, an affidavit in reply sworn by Garda O'Connor on 23 January 2025 and the last affidavit affirmed by the applicant on 11 February 2025.
Insofar as they are relevant to this judgment, the matters relied upon by the applicant and the Director respectively in the statement of grounds and statement of opposition and grounding affidavits are discussed below.
It is clear from the statement of opposition that the Director did not contest the granting of an order of certiorari, albeit that it was the Director's position that this Court had discretion whether or not to grant such an order to the applicant.
It cannot be gainsaid that the manner in which the District Court Judge approached the hearing – as set out at §4 above – was peremptory, notwithstanding the well-intentioned rationale behind such approach. Further, and as borne out by the DAR, the District Court Judge approached the matter with a view to protecting the applicant's interests such that he did not want her to be remanded in custody. However, the applicant – by her actions – was entitled to choose not to enter into a bail bond, and her right to a fair trial in due...
