Categories
Litigation

Judicial Review in Ireland-An Overview

mckenzie-friend

Judicial review is a collection of remedies of the High Court and Supreme Court which gives these Courts the power to declare that legislative and executive actions are null and void if they are contrary to the Constitution.

However the boundaries of judicial review have been expanded by judges in Ireland to cover 2 situations:

  1. Where powers enacted by the Oireachtas are reviewed by the High Court and Supreme Court and struck down as invalid if they are in conflict with the Constitution
  2. A procedural process whereby an aggrieved person can seek relief from the High Court if the matter at the centre of the dispute comes within the domain of public law.

Public Law

To bring a judicial review application, there must be a public law dimension to the problem/issue.

Two criteria are applied to test this ‘public law’ aspect:

a)      Is the source of power that is being challenged based on statute or delegated legislation?

b)      If so, what is the function of the body whose decision is being challenged?

Supervisory Jurisdiction

A core aspect of judicial review is the power of the High Court and Supreme Court to exercise supervisory jurisdiction over the legality of decisions of the District and Circuit Courts, public bodies, tribunals, and related persons.

The Courts are not concerned with the merits of the decision taken; they are concerned with the manner in which the relevant body has exercised its decision making power. For this reason, it is worth noting that it is not an appeal process.

So it is the decision making process, not the decision, which the Courts will scrutinize.

The goal of a judicial review is to ensure that the individual is given fair treatment by the body against whom his complaint lies.

Fairness, Natural Justice, Constitutional Justice

It is a central tenet of common law and the Irish constitution that a public body is to comply with the requirements of fairness in its dealings. Fairness is a fundamental component of natural or constitutional justice.

Reasonableness

Another ground for seeing a judicial review is the absence of reasonableness in the conduct of the public body complained against. ‘Reasonableness’ in this context is common sense and fundamental reason.

Legitimate Expectation

Legitimate expectation has developed as a ground for judicial review in Ireland. This may arise where a promise has been given by a public body or where a regular practice exists which the claimant can reasonably expect to continue.

Proportionality

The principle of proportionality can also be a ground for judicial review; this arises where restrictions imposed by legislation are disproportionate vis a vis a person’s constitutional rights.

Sufficient Interest

The rules of the Supreme Court state that a person must show that he/she has ‘sufficient interest’ to pursue a judicial review. This will be decided in the circumstances of each individual case.

Types of Judicial Review Remedies

Firstly, it is important to note that judicial review is a discretionary remedy.

The specific remedies are:

1.      Certiorari

This order is generally used where a public body has acted beyond its powers or contrary to its duty.

The grounds for making an order of certiorari are generally

  • The public body had no legal authority to make the decision it made
  • An error of law on the face of the decision of the public body
  • Natural/constitutional justice was ignored in reaching its decision
  • There was bias in the public body in coming to its decision
  • The public body acted fraudulently.

2.      Prohibition

Prohibition is sought to prevent a public body acting ultra vires (beyond its powers) and is similar to an injunction.

3.      Mandamus

Mandamus is an order from the High Court directed to a public body to perform a duty of a legal nature.

4.      Quo Warranto

This is not common nowadays; it was used to determine whether someone who claimed a public office was entitled so to do.

Section 50 of the Planning and Development Act, 2000 also provides for a judicial review type procedure in planning matters and decisions of a planning authority. This is more restrictive than an ‘ordinary’ judicial review as the application must be brought within 8 weeks of the decision that is being challenged.

Categories
Criminal Law

Appeals in Criminal Law in Ireland-Court Appeals and Judicial Review

legal appeals ireland

If you are convicted of a criminal offence in the District Court you have a right to appeal the decision from the District Court to the Circuit Court which is a general right to appeal set down in the Courts of Justice Act, 1928.

However you cannot appeal against the conviction alone; you must appeal either the severity of the sentence imposed or the severity of sentence and conviction.

The appeal in the Circuit Court will be heard by a Judge sitting alone and you can put forward new evidence in your case. However the Circuit Court can increase your punishment if it finds against you but it can also simply affirm the decision of the District Court or vary the sentence as it sees fit.

There is no further right of appeal from the Circuit Court to a higher court but there is a right of a judicial review by the High Court in appropriate cases.

Once an appeal is lodged, and this must be done within 14 days of conviction, the original District Court decision is suspended until the outcome of the appeal. This means that if you are convicted of a driving offence leading to a disqualification from driving and you lodge an appeal the disqualification does not apply.

Extension of time to appeal

If you do not lodge your appeal within 14 days of conviction you will need to make an application to the District Court seeking an extension of time within which to appeal.

However if you have been disqualified from driving and do not appeal within 14 days the disqualification will still stand even if you are successful in your application to extend time to appeal.

Court of criminal appeal

The Court of Criminal Appeal hears appeals from the Circuit Court, the Special Criminal Court and the Central Criminal Court.

However it can only hear appeals on the basis of a point concerning the conduct of the trial or on a point of law and the appeal is based on a transcript of the original trial.

Other remedies

Some other remedies open to you if you feel you have not obtained justice include the following which are orders arising from a successful judicial review.

A Judicial review is an action to the High Court and is appropriate where a Court has convicted you in excess or breach of it’s jurisdiction or you feel that natural or constitutional justice has not been observed in the conduct of your trial/hearing.

Arising from a judicial review the High Court may make any of the following orders-

  • Certiorari( this is an order which quashes a decision of the Court and might be used if you can show that the Court acted in excess of it’s powers)
  • Mandamus (this is an order directing someone to do it’s legal duty)
  • Injunction and declaration
  • Quo warranto
  • Habeas corpus
  • Appeal by way of consultative case stated
  • Appeal against a decision of the Court of Criminal Appeal
  • Appeal by way of case stated.

Always discuss your case with a legal professional such as a solicitor or barrister before deciding to appeal.

Categories
Criminal Law

The District Court Criminal Trial Procedure and District Court Appeals

district court ireland

If you find yourself in the District Court as a result of receiving a summons or having been arrested and charged through the charge sheet procedure you will be asked how you plead on your first occasion in Court.

If you plead guilty then that is the end of the matter and the Judge (and it will be a Judge alone in the District Court) will sentence you or adjourn the matter to have community service or probation reports prepared before sentencing.

If however on your first occasion before the Court you plead not guilty then the matter will be adjourned and your solicitor will ask the Judge for a hearing date and to make an order for him/her to be furnished with the evidence that will be used to try to secure your conviction.

This can simply be a précis of the evidence or a Gary Doyle order but whichever order is made your solicitor will be entitled to receive Garda statements, custody records (if any), and videotape evidence(if any).

Your case will also be given a date for trial.

The District Court trial

On the day of the trial your case will be called by the Court clerk and the prosecution solicitor or commonly the prosecuting Garda will give his/her evidence of the alleged offence and the circumstances surrounding it.

If there is a solicitor involved for the State then he/she will carry out a direct examination of all of the state’s witnesses. Your solicitor will then cross examine the state’s witnesses and attempt to raise doubts about their version of events to raise a reasonable doubt in the mind of the Judge.

Your solicitor will then make a submission to the Judge that based on the evidence heard you have no case to answer and ask the Judge to dismiss the case.

At this point if the Judge does indeed decide that you have a case to answer having listened to the State’s case then your solicitor will mount your defence by calling any witnesses that will be useful to your case and carry out a direct examination. These witnesses will then be cross examined by the state’s solicitor.

Once all witnesses have been heard your Solicitor can make a submission to the Judge that the State has failed to discharge it’s burden of proof (beyond a reasonable doubt) and argue that the case against you has not been made out.

It is up to the Judge then to decide to convict or dismiss.

If you are convicted then your Solicitor will make a plea in mitigation of sentence on your behalf.

The Judge will ask about previous convictions (if any) and may either impose a sentence on the spot or adjourn sentencing pending the receipt of probation or community service reports or indeed any other type of report he decides.

Plea in mitigation of sentence

The plea in mitigation of sentence is a critical part of the skill of a good solicitor-we will look at it in greater detail in another part of this site as this part of the criminal process is so critically important. (You might be interested in sentencing in criminal law in Ireland).

If you find yourself in Court you should consider very strongly instructing a solicitor on your behalf because a good solicitor will more than justify the cost (if you don’t qualify for free legal aid).

District Court Appeals and Judicial Review

There are many avenues of appeal to decisions in cases in the criminal courts in Ireland. Broadly there are two types of appeal:

1.       An appeal about the decision of the court as to the verdict or the sentence or both,

2.      An appeal to the High Court through the judicial review procedure where you feel your natural or constitutional rights have been infringed or where you feel the court or prosecuting authority has exceeded it’s jurisdiction or has failed to act within the law.

Judicial Review procedures

The remedies which you can seek through the judicial review procedure to the High Court include

1.       An order of prohibition-you might seek this order if you felt that you could not get a fair trial due to adverse prejudicial publicity or because of delay in bringing your case before the courts

2.      An order Certiorari-this is an order which quashes the decision of the court on the grounds that it acted in excess of it’s jurisdiction

3.      An order or mandamus-this orders a body to perform a certain task

4.      An order for damages

5.      An injunction

6.      Quo warranto-this compels a body to demonstrate it’s authority to pursue a certain course of action

7.      Habeas corpus-this applies where the person is alleging that he is being detained without authority, for example in a jail, mental hospital or Garda station. This relief arises out of Article 40.4.2 of the Irish Constitution.

Generally, an application for a judicial review must be made within 3 months or 6 months for certiorari. These time limits run from the time when the grounds for the judicial review first arose.

Appeals from the District Court

An right of appeal arises from the District Court to the Circuit Court and you have 14 days to do so. However you can apply to court for an extension of time within which you can lodge your appeal.

It is important to note that if you are appealing against a driving disqualification and you appeal within 14 days, then the disqualification is suspended pending the outcome of the appeal. If you are late, the disqualification cannot be lifted by the District Court.

You can appeal

1.       The severity of sentence

2.      The severity of sentence and conviction.

You cannot appeal against the conviction alone.

Once you lodge an appeal the sentence handed down by the District Court is suspended pending the outcome of the appeal.(If you have been imprisoned though you will stay in prison until the appeal is filed and recognisances entered into)

Circuit court appeal

Your appeal to the Circuit Court will be heard by a judge and you can submit new evidence and you can change the original plea submitted in the District Court.

If the Circuit Court decides to change your sentence it can only do so within the jurisdiction of the District Court. There is no further right of appeal from the Circuit Court but if the grounds arise you can seek a judicial review in the High Court.

Case stated procedure

You can appeal a decision of the District Court by way of a case stated appeal to the High Court. The purpose of this procedure is to allow you to ask the High Court’s opinion on a point of law or a mixture of law and fact.

However you cannot state a case to the High Court on the basis of the facts alone.

There is also a consultative case stated procedure which must take place before a decision is made in the District Court-this allows a Judge to send a consultative case stated to the High Court before he makes his decision for clarification on a point of law.

Appeal from the Circuit Court

You can appeal a decision of the Circuit Court to the Court of Criminal Appeal and this must be done on the basis of the conduct of the trial in the Circuit Court or on a point of law.

Unlike the District Court appeal avenue, you can appeal a conviction only to the Court of Criminal Appeal.