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You are here: BAILII >> Databases >> Irish Court of Appeal >> Grimes v The Director of Public Prosecutions (Approved) [2025] IECA 70 (05 March 2025) URL: http://www.bailii.org/ie/cases/IECA/2025/2025_IECA_70.html Cite as: [2025] IECA 70 |
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COURT OF APPEAL
CIVIL
Approved
[2022 No. 98]
[2019/JR 56]
The President Neutral Citation Number [2025] IECA 90
Kennedy J
Noonan J
BETWEEN
MICHAEL GRIMES
APPLICANT/APPELLANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS (DPP)
RESPONDENT
JUDGMENT of the Court delivered by Ms Justice Costello on the 5th day of March 2025
1. The appellant was charged on indictment in 2018 with seven counts of tax fraud under s.1078 of the Taxes Consolidation Act, 1997, and he pleaded guilty to three counts (nos. 1, 4 and 7). The case was adjourned for sentencing to 17th May 2018. On 17th May 2018, the appellant was represented by senior and junior counsel and solicitor. His senior counsel informed the court that he had discussed conditions being proposed by the Revenue Commissioners, the prosecuting authority, with the appellant and that the appellant "has indicated that he will comply with all of those conditions". The learned Circuit judge sentenced the appellant to be imprisoned for a period of two years and six months but suspended the sentence on condition that he keep the peace and be of good behaviour towards the people of Ireland for a period of five years. Five further conditions were imposed upon the appellant. These were the conditions proposed by the Revenue Commissioners and discussed with the appellant by his senior counsel in advance of the hearing:
"(i) ...[t]hat he will comply in all respects with all applicable legislation and regulations as regards the keeping and retention of records, the preparation and filing of returns and accounts, the payment of tax and keeping all his tax affairs up to date and paying all recurring and/or periodic tax liabilities on or before the date they are due;
(ii) [That he] [d]esist from interfering with Revenue's business in respect of the assessment and collection [of] tax lawfully due to the State either on his own behalf or on behalf of others;
(iii) [That he] [c]o-operates with Revenue by providing information in a timely manner when required to do so either on his own behalf or on behalf of others.
(iv) [That he] [r]efrains from vexatious correspondence and corresponds with Revenue and its agents, for example external solicitors, in a professional manner; and
(v) [That he does] not apply on his own behalf or on behalf of any other person or business, company or entity for Company Registration, or tax, including VAT, registration."
2. As a consequence of his conviction on indictment of an offence of this nature, pursuant to s.839(1) of the Companies Act, 2014, the appellant was automatically deemed to be subject to a disqualification order, pursuant to s.839(2) of the Act for a period of five years from the date of his conviction as the court did not otherwise order.
3. The Revenue Commissioners assert that the appellant breached the conditions attaching to his sentence in multiple ways after 17 May 2018 and that staff at the Revenue Commissioners had informed him that he was precluded by the order from registering or otherwise arranging for the registration of a new motor business in Granard for tax as part of his association -to use a neutral term- with the affairs of John Alex Kane, a motor dealer of Granard, Co. Longford. Accordingly, on 28th January 2019, the appellant moved ex parte application for leave to apply for judicial review of the order of the Circuit Court dated 17th May 2018, seeking to quash the conditions attached to his suspended sentence, naming a Cork Circuit Court Judge as the respondent. At that point in time there was no indication that the respondent intended to apply to re-enter the matter before the Cork Circuit Criminal Court in respect of alleged breaches of the conditions of his bail. The High Court directed that the respondent should be substituted as the respondent and that the application should be on notice to the respondent.
4. There was considerable difficulty in bringing the application for leave to seek judicial review on for hearing for reasons it is unnecessary to detail here. Ultimately, the respondent issued a motion to dismiss the application for want of prosecution. This application and the appellant's application for leave to seek judicial review were listed for hearing before the High Court (Bolger J) on 23rd March 2022. On 22nd March 2022, the day before the hearing, the appellant issued a further ex parte application within the proceedings [2019/JR 56], still erroneous naming as the respondent a Cork Circuit Court Judge for the Time Being seeking four substantive reliefs:
"(i) An Order directing the DPP to provide the applicant herein specifically with details of any alleged breaches of the Order and made by Judge Brian O'Callaghan on May 17th. 2018 at Cork Circuit Court in the matter of DPP v Michael Grimes and if granted I be given time to respond;
(ii) The basis on which such allegations are made;
(iii) And, if thought fit, an Order granting the said Michael Grimes such time as to the court seems just to remedy any such breaches;
(iv) Legal aid as owing to the serious ness (sic), I could be imprisoned".
5. On 23rd March 2022, Bolger J dealt initially with this application. The appellant said that basically he was looking for legal aid, though he gave no evidence of having even applied for civil legal aid in the three years since he initiated the proceedings. Having heard these submissions, she refused the relief on the grounds that these are civil proceedings and the respondent- the Cork Circuit Court Judge- could not be ordered to give him legal aid . In response, the appellant accepted that this was so as he replied "I hate to agree with you but I think you're right now that you mention it and I didn't see it." He then asked could he at least be told what breaches of his conditions he was breaching. Bolger J rejected this application on the same basis and because he had wrongly exhibited without prejudice correspondence as part of his application.
6. Once this application was refused, the appellant then withdrew his application for leave to seek judicial review of the decision of 17th May 2018. The High Court judge emphasised that if he withdrew his application, then that would be the end of the matter and that he could not appeal the decision any further. The appellant acknowledged that this was so, and nonetheless withdrew his application for leave to seek judicial review.
7. It follows, as a matter of law, that proceedings [2019/JR 56] are at an end and that no appeal lies to this Court in respect of them.
8. To complete the factual background to this appeal I should record that on 23rd May 2022, the appellant brought a fresh application for leave to seek judicial review in relation to a notice of re-entry served upon him, pursuant to s. 99 of the Criminal Justice Act 2006 (as amended), on the grounds, inter alia, that no triggering offence has occurred. Those proceedings are grounded on an affidavit sworn by the appellant on 24th May 2022. He exhibits a letter from Garda Sergeant Bartley dated 31st October 2020, which runs to nine pages, setting out in detail the basis upon which Sergeant Bartley recommends that the two and a half year suspended sentence, which the appellant received at Cork Circuit Criminal Court on 17th May 2018, be re-entered due to breach of conditions, while also noting that the appellant is currently before the courts charged under s. 11, Criminal Justice (Public Order) Act 1994, adjourned to 12th January 2021 at Longford District Court.
9. Notwithstanding the fact that the judicial review proceedings are at an end, the appellant purported to appeal the refusal by the High Court to grant him the reliefs which he sought in his application dated 22 March 2022 brought in those proceedings.
10. The notice of appeal was filed in April 2022 and asks the Court of Appeal to make the four orders sought in his application dated 22nd March 2022, plus an additional order "preventing the matter being re-entered in the Cork Circuit Court on May 26, 2022 or any adjourned date pending the outcome of this appeal".
11. The grounds upon which the appellant seeks to appeal the order of the High Court are:
"(i) As the basic case in the Cork Circuit Court had already granted legal aid then the said legal aid should have continued into this matter;
(ii) That the applicant is approaching his 87th. year is almost unable to do the case himself;
(iii) That as the applicant is bankrupt, he has no money to employ solicitor and counsel;
(iv) That as the penalty at the end of this matter is 2.5 years in Jail, it is a matter of the utmost seriousness and is clearly eligible for legal aid and free legal aid should have been granted;
(v) That the failure to inform me of what alleged breaches I was committing turned the case into a game to see if the state could; end up having me in jail for other reasons including driving the revenue crazy over the years;
(vi) That the said failure is contrary to my constitutional rights and contrary to law and natural justice;
(vii) That the Revenue, since the application are trying to re-enter the matter to try and have me jailed for the rest of my life;
(viii) All matters already had herein;
(ix) Such other reasons as may be offered and the nature of the case."
12. Despite filing the appeal in April 2022, the appellant failed to progress matters. Ultimately, he having failed to comply with directions of the court to file submissions by 31st August 2024, and an extended deadline of 13th January 2025, an unless order was issued. The appellant failed to provide submissions in accordance with the unless order, but on the day his submissions were due to be filed, the court agreed to his application to deal with his appeal on the papers.
13. This is a judgment of the court on the papers filed.
14. In my judgement, the appeal must be dismissed.
15. Firstly, the appellant withdrew his application for leave to seek judicial review on 23rd March 2022 in the full knowledge that he would not be entitled to appeal that matter. The matter which he has appealed, his application for supplemental relief within those proceedings, cannot be maintained in circumstances where the proceedings themselves are now spent. This applies, regardless of the merit or otherwise of the relief sought in his application of 22nd March 2022.
16. Secondly, the details of the breaches of the order asserted by the DPP were set out in considerable detail in the nine-page letter from Sergeant Bartley dated 31st October 2020, which the appellant has exhibited in his 2022 Judicial Review proceedings. He is thus fully aware of the basis upon which it is said that he has breached the conditions attached to his bail. This is a pointless appeal in the circumstances.
17. Thirdly, the lawfulness of the notice for re-entry of the proceedings DPP v Michael Grimes before the Cork Circuit Criminal Court dated 9th March 2022, is the subject of separate judicial proceedings initiated by the appellant on 23rd May 2022. Clearly, this should be dealt with by the High Court as the court of first instance in those proceedings.
18. Fourthly, the validity or otherwise of the notice of re-entry was never an issue in these proceedings, and accordingly, the reliefs sought in the ex parte application of 22nd March 2022 essentially sought to challenge a different decision which was made three years after the proceedings had been commenced. It follows that it was never appropriate to seek this relief within these proceedings.
19. Fifthly, as was pointed out by Bolger J, the question of civil legal aid is separate and distinct from legal aid in relation to criminal matters, these judicial review proceedings are civil, not criminal, and accordingly, the fact that he obtained legal aid in respect of the criminal prosecution in no way means that he is entitled to legal aid in respect of a judicial review application in relation to the sentence imposed upon him. Furthermore, as was equally correctly pointed out by the High Court, the question of civil legal aid is a matter for the Legal Aid Board and neither the High Court nor the respondent to the judicial review proceedings has any role in the granting of civil legal aid.
20. So for each of these reasons, I refuse the appeal in this matter.
Kennedy J: I have read the judgment just delivered by the President, with which I agree.
Noonan J: I also agree.
Result: Appeal Refused