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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Lynch v Director of Public Prosecutions & Ors (Approved) [2025] IEHC 159 (19 March 2025) URL: http://www.bailii.org/ie/cases/IEHC/2025/2025_IEHC_159.html Cite as: [2025] IEHC 159 |
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APPROVED
AN ARD-CHòIRT
THE HIGH COURT
[2025] IEHC 159
Record No. 2025/12JR
BETWEEN/
CATHERINE-ANNE LYNCH
APPLICANT
-AND-
THE DIRECTOR OF PUBLIC PROSECUTIONS, AN GARDA SêOCHçNA, A DISTRICT COURT JUDGE AND KOD LYONS SOLICITORS
RESPONDENTS
JUDGMENT of Mr. Justice Conleth Bradley delivered on the 19th day of March 2025
INTRODUCTION
Preliminary
1. This judgment arises from an ex parte application for leave to apply for judicial review by the applicant who is a litigant in person.
Background
2. The immediate context to this application is an impending prosecution of the applicant for an alleged minor assault against a third party, which I understand is due to take place sometime in April 2025, though the applicant was not aware of the precise date. In her written documentation and exhibits to her affidavit, the applicant sets out in detail the background to these matters. The applicant denies that there is any basis for the prosecution.
3. As this is an ex parte application for judicial review where the ultimate objective of the applicant is to prevent this prosecution for an alleged minor assault, I have had regard to the general observations of Charleton J., in his judgment in the Supreme Court case of Nash v DPP [2015] IESC 32 (at paragraph 5), that there are limitations to the extent to which a court hearing a judicial review application should engage with facts that are unnecessary to its decision and a court should only decide such procedural matters which are essential to its decision and avoid any expression of view on matters touching on the strength or likelihood of the building blocks of either the prosecution or the defence cases.
4. For the purposes of this application, therefore, and having regard to the fact that the applicantÕs central challenge is to the legislative architecture and the constitutional basis which allows a prosecution to be brought in the first instance, it is sufficient to summarise those circumstances as follows.
5. An alleged incident occurred at a dwelling at a location in County Dublin on 27th November 2022. The Garda investigating the matter wrote to the applicant on 8th February 2023 stating that he was investigating an alleged assault and inviting her to make a statement under caution at a specified time at a Garda station and stating that she could, if she wished, consult with a solicitor prior to doing so and that she could have a solicitor present during the caution statement.
6. Consequent upon the investigation of these matters, a direction was issued to An Garda S'och‡na by the DPP to prosecute the applicant for alleged minor assault against a third party. The applicant was informed of this in writing on 2nd May 2023 in a letter from the Garda dealing with the matter and was further informed that she was entitled to be considered for the Adult Caution Scheme and was notified of a proposed date and time for the Adult Caution to be explained to her. The letter stated that if the applicant did not wish to avail of this caution, a summons would be issued to her to be brought before a court in relation to the alleged incident. The applicant exhibited a copy of An Garda S'och‡na Policy Document ÒAdult Cautioning SchemeÓ dated 14th December 2020.
7. The applicant exhibited an alleged complaint dated 11th September 2023 to the Garda S'och‡na Ombudsman Commission (ÒGSOCÓ) in relation to the investigating Garda, the Garda who served the summons and the Superintendent of the relevant Garda Station.
8. The applicant also exhibited a copy of a District Court Summons dated 13th November 2023 from the Director of Public Prosecutions (as prosecutor) to the applicant (as the accused) notifying her of the date, time and location of the court sitting at which she would be accused in relation to the alleged offence that on 27th November 2022, at a location specified in the summons, the applicant allegedly assaulted a third party contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997. Again, the applicant denies that there is any basis for this prosecution and maintains that if she is correct in this application for leave to apply for judicial review and ultimately successful at a hearing, the legal basis for the prosecution falls away.
9. In an e-mail dated 12th July 2024, the applicant wrote to the proposed first and fourth named respondents in relation to the prosecution by the DPP of the applicant which was going to be in a specified District Court in County Dublin on 22nd July 2024 and in relation to which she stated a hearing date had been set for some time in April 2025. The applicant stated that she wished to become a Justice of the Peace and could not do so with this case hanging over her head for almost another year.
10. In summary, the email referred inter alia to the applicantÕs intention to bring a judicial review on the basis that the case should never have been brought to prosecution in the first instance based on the evidence provided and wished for the matter to be struck out on 22nd July 2024 due to the alleged lack of any prima facie evidence. The e-mail further alleged the following matters: the nature of the evidence and the manner of its collation by a named garda; quoted extracts from the DPPÕs Guidelines for Prosecution (5th Edition, 2019) including inter alia the definition of a prima facie case; and the alleged failure of the garda to rely on Òindependent evidenceÓ.
11. In an e-mail to an official of the proposed first named respondent sent on Monday 30th September 2024, the applicant stated as follows:
ÒDear DPP,
I wrote to you before regarding lack of prima facie case against me which you ignored.
I wish now to notify you that I intend to take a High Court criminal action against the Director and others with respect to your unauthorised practice of summary prosecutions which is explicitly prohibited by Article 30.3 of the Irish Constitution. As you are aware, the Constitution trumps all laws and you cannot therefore rely on any statute pre- or post-1937 that gives the DPP additional powers to those the AG constitutionally enjoys.
I look forward to your explanation of the ultra vires powers you have taken up but as I have been met with silence and obfuscation in the past when trying to get to the bottom of this fundamental [c]onstitutional change and the clock is ticking, I still intend to take legal action nonetheless due to the pain and anguish caused by said unlawful practices.
Please take this email as a) request for explanation and b) notification of intention to sue.Ó
RELIEFS SOUGHT & GROUNDS RELIED UPON
13. The applicant seeks the following reliefs which are quoted directly from the ex parte motion docket dated 6th January 2025:
Ò(1) A Declaration that my Constitutional rights have been infringed upon, and I have been denied fair and lawful procedure.
(2) Order that the Applicant be compensated for being denied such Constitutional rights and for being threatened, coerced and frightened into submitting to unlawful and criminal practices.
(3) A Declaration that the Adult Cautioning Scheme is unconstitutional, unlawful and illegal.
(4) An Order that all Adult Cautioning Scheme victims be compensated and their records expunged.
(5) A Declaration that all cases summarily prosecuted under the Director of Public Prosecutions (DPP) in the name of the People are unconstitutional and are null and void.
(6) Declaration that the DPP and/or An Garda Sioch‡na cannot summarily prosecute cases under S2 of Non-Fatal Offences Against the Persons Act 1997 or any other section thereof or any other legislation stipulating such summary power that was not afforded to them by the Constitution.
(7) Declaration that the Respondents have been deceptive at the expense of the Applicant and contrary to the aforementioned Sections of Criminal Justice (Theft and Fraud) Act 2001.
(8) Order that the Respondents have been negligent in their duty in upholding the law as per maxim Imperitia culpae annumeratur and have failed the Applicant by said negligence.
If the Court deems the above unconstitutional:
(9) That the Court direct that any prosecution for summary offences by the DPP and/or An Garda Sioch‡na be conducted within the parameters set by the Constitution, which excludes authority for summary prosecutions.
(10) Should the Court deem that one statement is a prima facie case commensurate with DPP Guidelines and is in the public interest and value for money to prosecute, an Order that my case be moved to the High Court as requested on numerous occasions to my court-appointed solicitor.
(11) Should the Court deem a prima facie case under the criteria of the DPP has not been met, an Certiorari to quash said prosecution case number 2023/190208 1970D.
(12) [Mandamus] that any fines or other financial penalties be reimbursed to the Applicant and/or any other person affected by such unauthorised actions.
(13) Order that any breach of personal liberty be compensated to the Applicant and/or any person affected by such unauthorised actions.
(14) Order that the Applicant and/or anyone who suffered loss, damage or injury in relation to the unconstitutional practices be compensated.
(15) Order that all court orders, records, criminal or otherwise, garnered under such unconstitutional procedures be expunged.
(16) Order that any other legislative Act allowing the DPP and/or An Garda Sioch‡na additional powers to prosecute summarily are unconstitutional and invalid.
(17) Declaration that all public and State employees paid by the Public Purse to uphold the law must be cognitive to the basic elements of the law in the first instance.Ó
14. The grounds set out in the Statement of Grounds (which also includes the above reliefs) are date stamped by the Central Office of the High Court as being as filed on 6th January 2025 and have the Record Number H.JR.2025.12, and are stated to be as follows:
ÒForeword: Interpretation and Invocation of Constitutional Articles in These Proceedings
(1) I say that I make this statement in support of my application before this Honourable Court. In this statement, I invoke several constitutional provisions of the Constitution of Ireland to assert and protect my statutory and constitutional rights. Each article cited is essential in demonstrating the violations committed against me by state employees, highlighting their relevance to my case and the lawful authority under which I seek redress in the Superior Courts.
(2) Article 6 of the Constitution of Ireland
(i) Article 6 affirms that all powers of government Ð legislative, executive, and judicial Ð derive from the people and must be exercised through the organs of the state established by the Constitution. It establishes the principle of separation of powers, ensuring that each branch operates independently and free from undue influence.
(ii) I invoke Article 6 specifically in its application to the judiciary, emphasizing that judicial power is vested solely in the courts and must be exercised independently of the executive and legislative branches, The judiciaryÕs role is to interpret the law, resolve disputes, and safeguard my rights and liberties as defined by the Constitution.
(iii) I assert that the actions of state employees that infringed upon my statutory rights must be reviewed and adjudicated within this judicial framework, free from interference. The High Court, as the independent body exercising judicial power, is constitutionally obligated to review these actions and ensure compliance with statutory and constitutional law.
(3) Article 30.3 of the Constitution of Ireland
(i) Article 30.3 sets out the boundaries in which the Attorney General can take prosecutions in the name of the People. I submit and assert that the Respondents have infringed upon my constitutional and statutory rights by operating outside these boundaries and attempting to summarily prosecute me without the constitutional authority to do so.
(4) Article 34.3 of the Constitution of Ireland
(i) Article 34.3 grants the High Court full original jurisdiction in all matters of law, whether fact, civil or criminal, ensuring that justice is administered in accordance with the Constitution.
(ii) I invoke Article 34.3 to affirm the High CourtÕs authority to hear and adjudicate the breaches of statutory and constitutional law committed by state employees. Through these proceedings, I seek to ensure that justice is administered impartially and that my rights are vindicated according to the law and the Constitution, upholding the principles of fairness and accountability.
(5) Article 35.2 of the Constitution of Ireland
(i) Article 35.2 establishes the independence of judges in the exercise of their judicial functions, ensuring that all judicial decisions are made without fear, favour, affection, or ill-will. Judicial independence is fundamental to the rule of law and is essential for safeguarding my rights as a citizen.
(ii) I invoke Article 35.2 to emphasize the importance of impartiality in these proceedings. The High Court must exercise its judicial functions independently when determining whether state employees have acted unlawfully and infringed upon my statutory and constitutional rights. This article is crucial to ensuring that the courtÕs decision is free from any external influence or bias.
(6) Article 40.1 of the Constitution of Ireland
(i) Article 40.1 guarantees that all citizens are equal before the law, ensuring no discrimination or inequality in accessing justice. It embodies the principle that the law must be applied equally to everyone, regardless of their status or position.
(ii) I invoke Article 40.1 to highlight that the actions of state employees that infringed upon my statutory rights have violated this constitutional guarantee. In these proceedings, I seek to uphold the principle of equality before the law, ensuring that I am treated fairly and justly by the state and its representatives.
(7) Article 40.3 of the Constitution of Ireland
(i) Article 40.3 obliges the state to protect, defend, and vindicate the personal rights of each citizen, including life, property, and personal liberty. It is a broad guarantee of the stateÕs duty to safeguard my rights and take appropriate action when those rights are violated.
(ii) I invoke Article 40.3 as a basis for seeking relief in these proceedings. The state has a duty to defend my personal rights, and the breaches of statutory law committed by state employees have infringed upon these rights. The High Court, under this article, must vindicate my rights and hold accountable those state actors who have acted unlawfully.
(8) Article 40.4 of the Constitution of Ireland
(i) Article 40.4 protects against the unlawful deprivation of personal liberty and guarantees the right of citizens to seek judicial relief if their liberty is unjustly infringed. This article provides me with a mechanism to challenge unlawful restrictions on my liberty and to have such matters reviewed by the courts.
(ii) I invoke Article 40.4 to challenge the actions of state employees that have unlawfully infringed upon my personal liberty, extending beyond mere physical detention. The protections under this article encompass any undue restrictions placed upon my autonomy or legal rights by state agents, which must strictly comply with constitutional and statutory law.
(13) This statement is made to ground my application for judicial review for relief in respect of a gross miscarriage of justice that took place in or around February 2023. On that date, Catherine Pierse (Director of Public Prosecutions (DPP)), Gordon Wolfe (Superintendent, Blackrock Garda Station), Cian Cullen (Garda at Blackrock Garda Station), Ann Watkin (Dun Laoghaire District Court Judge) and subsequently the court appointed solicitor Patricia Camilon, of KOD Lyons acted unlawfully and in violation of my constitutional rights. Their conduct has resulted in depriving me of my personal liberties by clear breaches of statutory procedure by the Respondents.
(14) In support of this application, I have compiled a Consolidated Exhibit, referred to as Exhibit CAL1, which includes all the documents submitted to or received from the Respondents.Ó
DISCUSSION & DECISION
17. The applicant, therefore, seeks to raise a number of grounds which can be characterised as seeking to challenge the prosecutorial function by the parties mandated by law to exercise that function in the State.
18. Nearly every aspect of that function is sought to be challenged in this case arising from the fact that the applicant has been charged with an alleged offence contrary to section 2(4) of the Non-Fatal Offences Against the Persons Act 1997.
19. The applicant, for example, set out inter alia the following alleged grounds in a separate document entitled ÒSupplementary Argument for Judicial ReviewÓ: (1) The DPPÕs summary prosecution ÒIn the name of the PeopleÓ allegedly violates Article 30.3 of the Constitution; (2) the 1924 Acts enabling this are allegedly invalid under Article 50.1 of the Constitution; (3) alternatively, Garda' prosecuting their own investigations allegedly breaches Article 38.1 and 40.3 of the Constitution due to an alleged conflict of interest. The applicant then sets out a series of supplementary arguments, referable to legal authority and constitutional provisions and setting out the reliefs sought, which address what is described as the (A) the primary challenge i.e., the DPPÕs alleged lack of authority under Article 30.3 of the Constitution; (B) supplementary challenge, i.e., the Garda'Õs role and alleged conflict of interest; (C) systemic implications; (D) the Leave Stage; and then addresses what is described as ÒStrategic ConsiderationsÓ, ending with a ÒConclusionÓ.
Requirement for permission
20. The legal prism through which I must assess this ex parte application for judicial review is well settled. The provisions in Order 84, rules 18 to 29 of the Rules of the Superior Courts 1986 (as amended) prescribe the process for making (including seeking the leave or permission of the court) an application for judicial review together with various practice directions from the President of the High Court.
21. The test to be applied has been the subject of recent re-statements by the Superior Courts.
22. The Court of Appeal (in the judgment of Burns J., with Edwards and Kennedy JJ.) in Sutton v DPP & Ors [2024] IECA 303 (17th December 2024), for example, summarised the test to be met for leave to apply by way of judicial review at paragraph 17 of the courtÕs judgment, as follows:
Ò(17) In OÕDoherty v Minister for Health [2022] IESC 32, OÕDonnell C.J. stated at para. 39:- Ò39. É It is clear that the threshold of arguability in G. v. DPP[ [1]] is a relatively low bar, but, as Birmingham P. said in the Court of Appeal, it is not a non-existent threshold.
It is worth recalling in this context the observation of Charleton J. in the course of his judgment in EsmŽ v. Minister for Justice and Law Reform [2015] IESC 26 [É]:- Ôany issue of law can be argued: but that is not the test. The point of law is only arguable within the meaning of the relevant decisions if it could, by the standards of rational preliminary analysis, ultimately have a prospect of success.Õ The threshold is a familiar one in the law. It is, in essence, the same test which arises when proceedings are sought to be struck out on the grounds that they are bound to fail, or the test that is normally required in order to seek an interlocutory injunction. It must be a case that has a prospect of success (otherwise it would not be an arguable case) but does not require more than that.Ó
23. In Sutton v DPP & Ors [2024] IECA 303, the Court of Appeal upheld the judgment of the High Court ([2024] IEHC 155), where Gearty J. had refused to grant the applicant (appellant) leave to apply by way of judicial review for inter alia an order of prohibition in respect of his pending trial before the Circuit Court.
24. In Casey v DPP [2015] IEHC 824, the High Court (Humphreys J.) refused leave to apply for judicial review to an applicant who was seeking to prohibit his trial on charges of being drunk in a public place contrary to section 12 of the Licensing Act 1872 on the grounds that the provision was unconstitutional or contrary to his ECHR rights. Humphreys J. inter alia observed at paragraph 25 of his judgment that ÒIt is clear from the decisions I have mentioned and the overall criteria for grant of leave as set out in G. v. Director of Public Prosecutions [1994] 1 I.R. 374, that the court is not limited to a consideration of arguability and must consider a number of other issues, such as whether judicial review, at the point in time at which the application is made, is the most appropriate remedyÓ.
25. As a general proposition, the Superior Courts are reluctant to grant an order of prohibition (by way of an application for judicial review) preventing an imminent trial for the following reasons articulated by the Supreme Court (Charleton J.) in Nash v DPP [2015] IESC 32 at paragraph 23:
ÒAn application to stop a trial before the trial judge may best be decided upon a consideration of all of the evidence and how the alleged defect, be it delay or missing evidence or unavailable witnesses, impacts on the overall case. Whether the real risk of an unfair trial that cannot be otherwise avoided exists is, in such cases of any argument that justice has been diminished, often best seen in the context of such live evidence as had been presented and not through the contest on affidavit that characterises these cases on judicial review seeking prohibition in the High Court or on appeal.Ó
The prosecutorial function
26. Given the orders which I propose to make, it is appropriate to address the alleged grounds raised in this application for leave to apply for judicial review, at this juncture, as follows.
27. Prior to the coming into operation of the 1937 Constitution, the Ministers and Secretaries Acts 1924 had vested in the office of the Attorney General Òall powers, authorities, duties and functions formerly vested in or exercised by the Attorney-General for Ireland, the Solicitor-General for Ireland, the Attorney-General for Southern Ireland, the Solicitor-General for Southern Ireland, the Law Adviser to the Lord Lieutenant of Ireland and any or all of them respectively.Ó Professor Dermot Walsh makes the point that ÒClearly, this assumes the existence of the office in Ireland pre-1922, an office which Casey explains is rooted in the common lawÓ (Walsh, Walsh On Criminal Procedure (Third Edition, 2025, Thomson Reuters (Professional) Ireland Limited, at paragraph 3-15, p. 115. The reference to ÔCaseyÕ is to J. Casey, The Office of the Attorney General in Ireland (Dublin: Institute of Public Administration, 1980) Chapters 1 and 2)).
28. Article 30.1 of the Constitution provides that Ò[t]here shall be an Attorney General who shall be the adviser of the Government in matters of law and legal opinion, and shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by this Constitution or by law.Ó (underlining added). Article 30.3 provides that Ò[a]ll crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted Ôin the name of the PeopleÕ and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose.Ó Accordingly, this constitutional statement of the prosecutorial powers, functions and duties of the Attorney General can be supplemented by both the common law and statute law, including, for example, section 9(1) of the Criminal Justice (Administration) Act 1924 provides that Ò[a]ll criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney-General of Saorst‡t EireannÓ and section 9(2) provides that Ò[s]ave where a criminal prosecution in a court of summary jurisdiction is prosecuted by a Minister, Department of State, or person (official or unofficial) authorised in that behalf by the law for the time being in force, all prosecutions in any court of summary jurisdiction shall be prosecuted at the suit of the Attorney-General of Saorst‡t Eireann.Ó Again, Professor Walsh makes the observation that section 9 of the Criminal Justice (Administration) Act 1924 Òconfirms what had already been the position at common law, namely that the Attorney General is competent to prosecute all offences on indictment and is a competent prosecutor of summary offences.Ó (Walsh, Walsh On Criminal Procedure (Third Edition, 2025, Thomson Reuters (Professional) Ireland Limited) at paragraph 3-17, p. 115).
29. The Prosecution of Offences Act 1974 (Òthe 1974 ActÓ) created the office of the Director of Public Prosecutions to undertake most of the AttorneyÕs prosecutorial functions and authorised the DPP, in accordance with law, to act for the purpose of prosecuting in the name of the People as provided for in Article 30.3 of the Constitution. Section 3(1) of the 1974 Act provides that Ò[s]ubject to the provisions of this Act, the Director shall perform all the functions capable of being performed in relation to criminal matters and in relation to election petitions and referendum petitions by the Attorney General immediately before the commencement of this section and references to the Attorney General in any statute or statutory instrument in force immediately before such commencement shall be construed accordingly.Ó
30. The alleged offence the subject of this application for leave to apply for judicial review is alleged to have occurred on 27th November 2022.
31. The prosecution of offences by members of An Garda S'och‡na is inter alia addressed in section 8 of the Garda S'och‡na Act 2005, as amended and substituted by the Garda S'och‡na (Amendment) Act 2022, and insofar as the matters raised in this application, are concerned, the following provisions are relevant:
Ò(1) No member of the Garda S'och‡na in the course of his or her official duties may institute a prosecution except as provided under this section.
(2) Subject to subsection (3), any member of the Garda S'och‡na may institute or conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions.
(2A) Where a prosecution is instituted by a member of the Garda S'och‡na pursuant to subsection (2), the prosecution may be conducted by that member or any other such member.
(3) In deciding whether to institute and in instituting or conducting a prosecution, a member of the Garda S'och‡na shall comply with any applicable direction (whether of a general or specific nature) given by the Director of Public Prosecutions under subsection (4).
(4) The Director of Public Prosecutions may give, vary or rescind directions concerning the institution and conduct of prosecutions by members of the Garda S'och‡na.
(5) Directions under subsection (4) may be of a general or specific nature and may, among other things, prohibit members of the Garda S'och‡na fromÑ(a) instituting or conducting prosecutions of specified types of offences or in specified circumstances, or (b) conducting prosecutions beyond a specified stage of the proceedings.
(6) If a prosecution is instituted or conducted by a member of the Garda S'och‡na in the name of the Director of Public ProsecutionsÑ(a) the member is presumed, unless the contrary is proved, to have complied with this section and any applicable direction given by the Director under this section, and (b) nothing done by the member in instituting or conducting the prosecution is invalid by reason only of the memberÕs failure to comply with this section or that direction.
(7) Nothing in this sectionÑ(a) precludes the Director of Public Prosecutions from, at any stage of the proceedings, assuming the conduct of a prosecution instituted by a member of the Garda S'och‡na, or (b) authorises a member of the Garda S'och‡na to institute a proceeding without the consent of the Director of Public Prosecutions if an enactment prohibits the institution of that proceeding except by or with the DirectorÕs consent.
(8) For the purpose of this sectionÑ(a) a direction is of a general nature if it relates to a class of prosecutions, and (b) a direction is of a specific nature if it relates to the prosecution of a person for a specific offence.Ó
32. Section 2(1) of the Garda S'och‡na (Amendment) Act 2022 provides that section 8 of the Act of 2005 is amended as follows: Ò(a) in subsection (2), by the substitution of Òinstitute or conductÓ for Òinstitute and conductÓÓ, and (b) by the insertion of the following subsection after subsection (2): Ò(2A) Where a prosecution is instituted by a member of the Garda S'och‡na pursuant to subsection (2), the prosecution may be conducted by that member or any other such memberÓ.
33. Section 2(2) of the Garda S'och‡na (Amendment) Act 2022 provides that the amendments to section 8 of the Act of 2005 effected by section 2(1) of the 2022 Act Òshall apply in respect of prosecutions instituted pursuant to subsection (2) of that section irrespective of whether such prosecutions were instituted before or after the coming into operation of this section.Ó
34. Some of the matters raised by the applicant in this application for leave to apply for judicial review appear to have been addressed by section 8 of the Garda S'och‡na Act 2005 as amended and substituted by the Garda S'och‡na (Amendment) Act 2022 and also by the relatively recent judgment of the Supreme Court, in a case stated, The DPP (at the suit of Garda Liam Varley) v Ciaran Davitt & The Attorney General [2023] IESC 17 (14th July 2023, judgment delivered by Dunne J., with OÕDonnell CJ., Charleton, OÕMalley and Collins JJ. concurring) which inter alia rejected the submission that section 8(2) of the 2005 Act had the effect of depriving members of the garda', other than the prosecuting garda, from conducting a prosecution in the District Court.
35. After the judgment of the High Court and before the hearing in the Supreme Court in The DPP (at the suit of Garda Liam Varley) v Ciaran Davitt & The Attorney General, the amendments to section 8 of the 2005 Act had been effected by the Garda S'och‡na (Amendment) Act 2022. The Supreme Court decided that the appeal was not moot and delivered its judgment dealing with a range of matters, including that just referred to.
36. Having regard to the applicantÕs grounds and reliefs sought and the matters addressed in this judgment, I consider that it is appropriate that this leave application be heard on notice to the DPP, the Garda Commissioner and the Attorney General as putative respondents and the previously court-appointed solicitors be joined as an intended notice party rather than as an intended respondent.
37. The applicant (who is a litigant-in-person) and the intended respondents (and, if the solicitors so wish, the intended notice party) can make submissions to the judge dealing with the matter as to whether the threshold for leave to apply for judicial review has, or has not, been met (or, if appropriate, whether the leave application should be treated as if it were the hearing of the application for judicial review, with appropriate directions pursuant to O. 84, r. 24(2) of the Rules of the Superior Courts 1986 (as amended)).
ORDER
38. In the circumstances, I shall make the following orders:
(i) Pursuant to the provisions of O. 84, r. 24(1) of the Rules of the Superior Courts 1986 (as amended), I shall make an order directing that the application for leave to apply for judicial review be heard on notice to the following intended respondents and the title of the proceedings be amended accordingly:
(a) The Director of Public Prosecutions (through service on the Chief Prosecution Solicitor);
(b) The Garda Commissioner (through service on the Chief State Solicitor);
(c) The Attorney General (through service on the Chief State Solicitor);
(ii) KOD Lyons Solicitors be joined as an intended notice party rather than as a respondent;
(iii) I direct that the applicant serve copies of the intended Statement of Grounds, Affidavit and exhibits, the document entitled ÒSupplementary Argument for Judicial ReviewÓ, this judgment and Order of the court, on the intended respondents, the intended notice party and the District Court Clerk (the latter pursuant to O. 84, r. 22(2A) of the Rules of the Superior Courts 1986), all service to be effected by registered pre-paid post before or by close of business on Wednesday 26th March 2025 and by e-mailing those parties with this judgment and Order within the same period.
(iv) I shall adjourn the leave application to the Non-Jury/Judicial Review List, with a return date of Tuesday 1st April 2025.
CONLETH BRADLEY
19th March 2025