H406
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Raithbheartaigh -v- Judge McNamara & anor [2014] IEHC 406 (11 July 2014) URL: https://www.bailii.org/ie/cases/IEHC/2014/H406.html Cite as: [2014] IEHC 406 |
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Judgment Title: O'Raithbheartaigh -v- Judge McNamara & anor Neutral Citation: [2014] IEHC 406 High Court Record Number: 2012 664 JR Date of Delivery: 11/07/2014 Court: High Court Composition of Court: Judgment by: Baker J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 406 THE HIGH COURT JUDICIAL REVIEW [2012 No. 664 J.R.] BETWEEN DAITHI O'RAITHBHEARTAIGH APPLICANT AND
JUDGE OF THE DISTRICT COURT PATRICIA MCNAMARA FIRST RESPONDENT AND
THE DIRECTOR OF PUBLIC PROSECUTIONS SECOND RESPONDENT JUDGMENT of Ms. Justice Baker delivered on the 11th day of July, 2014 1. Section 10(1) of the Non-Fatal Offences Against the Person Act 1997 created the new specific offence of harassment, and set out the test as follows:
Following a conviction the court may impose a fine or a term of imprisonment, or both, and the legislation made provision for a form of restraining order as a means of protecting a complainant. Because of what was described as an "extraordinary feature" of the Act by the Court of Criminal Appeal in the case of The People (DPP) v. Ramachchandran [2000] 2 I.R. 307, a restraining order can be made following an acquittal. It is the making by the District Court of a restraining order against the applicant following his acquittal on a charge of harassment that is the subject matter of this judicial review. Facts 3. Immediately following on the making of this determination, application was made by the solicitor acting for the DPP pursuant to s. 10(5) of the Act of 1997 for a restraining order pursuant to s. 10(3). Counsel for the accused objected to the making of an order inter alia on the grounds that the prosecution had not notified the defence that such an application would be made. The matter was adjourned until later in the day when the solicitor for the State and defence counsel made arguments. 4. The first named respondent having heard the argument but no further evidence made the order sought and heard submissions with regard to its form, and in particular the geographical distance and time frame which might be appropriate. She then made the order, now challenged in this judicial review, restraining the applicant for a period of three years from communicating with the complainant, or approaching within half a mile of any place of residence or employment of the complainant. 5. Peart J. on 23rd July, 2012, granted leave to apply for certiorari quashing the said order and for a declaration that the order made under s. 10(3) of the Act was made in a manner inconsistent with the provisions of the Constitution and in particular, Articles 38.2 and 40 thereof. The five grounds set out on which relief was sought were clarified in the course of the hearing, and two grounds were argued, namely that there was a breach of fair procedures and the order was made without an evidential basis. 6. As is usual in these matters, the first named respondent did not take part in the hearing before this Court and counsel appeared on behalf of the second named respondent as a legitimus contradictor. Submissions of the applicant Submissions of the second respondent 9. It is submitted that the first respondent, before imposing the order, gave the applicant's counsel time to consider the statutory provisions and heard him with regard to the temporal and geographical limits of the order, and that this was sufficient to meet the test of fairness. The legislative framework
(5) If on the evidence the court is not satisfied that the person should be convicted of an offence under subsection (1), the court may nevertheless make an order under subsection (3) upon an application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interests of justice to do so. "
(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or (b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both. " 11. I have had the benefit of a transcript of the DAR for the relevant part of the hearing on 31st May 2012, and from this the following appears: after the charge was dismissed, application was made by the solicitor acting for the DPP for an order under s. 10(5) of the Act of 1997. Counsel for the accused objected to the making of the order primarily on the ground that his client had not been put on notice during the hearing of the trial that such an application might be made. The judge gave an opportunity to counsel to take instructions and to consider the statutory provisions, but the she made it clear that she wished to dispose of the matter that day. It is clear that the trial judge had no personal experience of the statutory provisions, and she expressly stated that she had not heard mention at all of s. 10(5) in the course of the hearing until after she dismissed the charge. This is not surprising as the subsection appears not to be used much in practice, and the District Judge can in no way be criticised as the jurisprudence in regard to the making of a restraining order is not developed. 12. A short adjournment was granted to enable counsel to consider the statutory provisions and consult. Legal argument was then had as to the meaning of s. 10(3) and s. 10(5) and the trial judge was told that little or no jurisprudence had evolved with regard to the section, albeit that it appeared that the solicitor acting for the DPP had some personal knowledge of orders being made under the subsection in District Court applications with which she had been involved. 13. Following legal argument, the trial judge accepted that she had jurisdiction to make the order, as she undoubtedly had, and said that she would do so having regard to the ''very sincere and impressive evidence" she had heard from the complainant and because she was satisfied having regard to the evidence before the court that it was "in the interest of justice" to do so. 14. After the order was made, argument was had as to the duration of the order, it having been proposed by the solicitor for the DPP that the order should have a duration of ten years. The trial judge made an order for three years, saying she was taking some guidance from family law barring or exclusion type orders for that purpose. 15. It is clear from the transcript that the District Judge did not expressly address herself to the weight of the evidence given by the complainant, nor to the extent to which the evidence she heard might have not been tested. The nature of the order No appeal 18. Section 18(1) of the Courts of Justice Act 1928 provides the legislative basis for an appeal from the District Court in a criminal matter:-
20. Article 34.3.4 of the Constitution provides that the right of appeal from a court of limited and local jurisdiction is one that may be determined by law and Hogan and Whyte, authors of the authorative J.M Kelly, The Irish Constitution, 4th Ed. (Dublin, 2003), suggest that:
Consequence of a breach of an order
Analogous orders
![]() Constitutional fairness
Previous decisions on the subsection 30. The Court of Criminal Appeal quashed the conviction and did not order a new trial. However, under what was termed by Barrington J. as "a remarkable feature of the Act", the court held that even in the event of an acquittal the court had the power under s. 10(5) of the Act to grant an order restraining a person from communicating with or approaching the complainants. The court was satisfied, on the balance of probabilities and having considered the evidence, that the complainant and her mother were entitled to protection from further unwanted communication from the applicant. An order was made prohibiting the applicant from communicating with or approaching the complainant or her mother for a period of ten years. 31. One must assume that the Court of Criminal Appeal found the power "remarkable" partly because the order could be made in a criminal trial where a wholly different standard and burden of proof exists, and where the order could be made, as it was in that case, following an acquittal. The court however gave no guidance as to the procedural requirements for the making of the order and the question of fair procedures was not considered in the judgment. Discussion on the first ground: fairness 33. The District Court must govern and manage its own procedures but in a case where there is no appeal, as in the case of an order under s. 10(3), the constitutional imperative of fair procedures is one to which the court must have particular regard. Further, the effect of the restraining order was to impede the movement of Mr. O'Raithbheartaigh in the particular area then defined by reference to the place of work and place of resident of the complainant. She might over the period of three years for which the order was imposed have moved either her home or place of work, and the restraining order therefore could, in practice, have had an effect on Mr. O'Raithbheartaigh and on where he himself lived, worked and on the places he visited far beyond that envisaged by the District Judge at the time she made her order. 34. Having regard to the potential consequences of the order and the fact that it significantly restricted, both actually and potentially, the freedom of movement of Mr. O'Raithbheartaigh, and his future personal and work life, as well as the fact that the legislation expressly provides the breach of an order is a criminal offence, means that a high standard of fair procedures must be imported into the conduct of the hearing of an application for a s. 10(3) order. Was fair procedure afforded? 36. After the prosecution evidence had closed, an application to dismiss was made by the accused on the basis that the accused had no case to answer, there being no admissible evidence to link him to the alleged offence of fixing the posters. The trial judge heard no further evidence and made the restraining order on the basis of the evidence of the complainant adduced for the purpose of meeting the subjective test of her response to the alleged fixing of the posters. This evidence was not adduced for any other substantive purpose, or at least none identified or capable of being ascertained, and without it the prosecution would likely have failed even had there been evidence linking the accused to the fixing of the posters, as the crime is one specifically referable to the emotional response of the complainant. Conclusion 38. How the test of fair procedures might be satisfied is a matter for the individual judge hearing an application under the section and there may be circumstances where notice is required to be given to an accused of the possibility that an application will be made under the subsection, whether on a conviction or an acquittal, at an sufficiently early time in the process to enable the accused to consider whether to test the evidence of the prosecution or to adduce evidence himself or herself. The degree of notice and the extent of the obligation to meet the test of fairness will differ in each case, but the requirement is that there be reasonably sufficient opportunity afforded to the person faced with an order to deal fully with the evidential and legal requirements of the order. The evidence of the complainant formed the entire evidential basis of the order, and after the prosecution case had concluded the accused was not afforded an opportunity to test the evidence which was so crucial to the decision of the court. Indeed, it would have been difficult if not impossible after the conclusion of the evidence in the case for the accused to have given contrary evidence to challenge the version of events given by the complainant as some or all of the matters that he might address in his evidence would not properly have been put in cross examination to her. 39. A criminal trial has a particular and unique structure grounded in the presumption of innocence, and the right of accused to remain silent and put the prosecution on proof of the charge beyond a reasonable doubt. An accused may opt, as the accused in this case did, not to adduce any evidence and to rely in defence on the testing of the prosecution evidence and on legal argument. The applicant was entitled not to cross examine the evidence of the complainant as he was reasonably taking the view that the evidence was not probative of the charge being prosecuted. The charge brought against Mr. O'Raithbheartaigh was narrow in scope both in terms of time and in regard to the specific allegations in respect of which the charge was brought, and he was not charged with harassment flowing from a series of events of unwelcome following and communicating with the complainant, the charge being confined to an allegation that he fixed posters at identified locations. 40. In my view, having regard to way the case proceeded, and that the evidence was concluded after the prosecution closed its case, the requirement of fair and proper procedure was not met. Notice ought to have been given to the accused of the possibility of an application for a restraining order at a time when the evidence on foot of which the order was made could still be tested. The trial judge did not satisfy the test of fair procedures and in this particular case the following individual factors arise:-
(ii) Fair procedure would have required notice be given to the accused of the intention of the DPP to make an application under the subsection before evidence concluded. (iii) The case having concluded, the District Judge fell into error and breached fair procedures in not either requiring or permitting additional evidence, whether by way of cross examination or direct evidence from the accused himself or other persons on his behalf. 42. The making of a restraining order is a form of preventative justice recognised as an important element in the administration of justice. But equally important is the manner in which an order is made and where the order is made after the conclusion of a criminal trial where an accused was acquitted, the differing standards of proof give rise to a particular difficulty in assessing whether and how fairness is achieved. A judge hearing a charge under the Act is in a unique position to assess the desirability of making orders of a preventative nature, but the requirements of constitutional justice and fair procedures must be kept in mind in the operation of what must be seen as an unusual and, to borrow the language of the Court of Criminal Appeal in The People (DPP) v. Ramachchandran "extraordinary" powers of the court following an acquittal. 43. Having regard to my finding on the first ground I do not propose to consider the second ground on which leave was granted. 44. I therefore make an order of certiorari quashing the order.
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