About this case:

• Citation:
  [2026] IEHC 764
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Denise Brett

Delivering judgment for the High Court in December, Ms Justice Denise Brett found that the applicant was in peril of conviction at his trial such that the special plea of autrefois acquit was available to him, and that in any event, the court would exercise its discretion to refuse to remit the matter where the applicant’s ‘line of defence’ had already been revealed.

Background

The applicant, a serving member of An Garda Síochána, was prosecuted in Swords District Court on 6 March 2023 for road traffic offences including dangerous driving contrary to s.53 of the Road Traffic Act 1961, driving under the influence of an intoxicant contrary to s.4(1) of the Road Traffic Act 2010, and exceeding the permitted concentration of alcohol in his urine contrary to s.4(3) of the 2010 Act.

The offences were alleged to have been committed on 14 November 2021, when the applicant was on duty and driving an unmarked garda car which was involved in an accident on an off ramp of the M1. At trial, the applicant pleaded not guilty to all charges.

At the conclusion of the applicant’s application for a direction of ‘no case to answer’, the trial judge enquired as to whether the applicant had any previous convictions and what disqualification applied, before proceeding directly to dismiss the s.4(3) charge, to convict the applicant of both of the remaining offences and to impose sentences of fines and mandatory disqualifications.

The District Court did not make any definitive determinations on which of the submissions advanced by the applicant it did or did not accept, did not provide any reasons or hear any mitigation following conviction and notwithstanding the trial judge’s suggestion that he could do so, the applicant did not get the opportunity to go into evidence.

The applicant applied for judicial review seeking orders of certiorari quashing his convictions and sentences. The respondent accepted that certiorari was appropriate but invited the High Court to remit the matter back to the District Court for a full retrial.

The applicant argued that he was entitled to avail of the special plea of autrefois acquit and that there should be no new hearing. In the alternative, the applicant argued that if the special plea was not available to him, the facts of the case warranted the exercise of the court’s discretion to refuse remittal inter alia due to the absence of fair procedures in any retrial where the applicant had materially shown his defence.

Accordingly, the only issue for the High Court was whether or not to remit the matter to the District Court for a retrial.

The High Court

Having considered the parties’ submissions, Ms Justice Brett highlighted the guidance in Stephens v Connellan [2002] 4 IR 321 that the reviewing court should consider which side of the jurisdictional line the errors justifying quashing the lower court’s order falls.

The judge explained that if a reviewing court determines the impugned error was made outside of the lower court’s jurisdiction, then any order made by the lower court is void ab initio and the defendant was never in lawful jeopardy or peril of conviction and remittal for full retrial arises, subject to the discretion of the reviewing court.

Ms Justice Brett continued:

The judge found that she was required to adopt a two-step approach, firstly identifying whether the special plea was available, and if not available, moving to consider the court’s discretion under Order 84, r. 26(4) of the Rules of the Superior Courts.

The judge opined that the failure of the trial judge to give reasoned rulings on the individual submissions made on behalf of the applicant, his failure to afford the applicant opportunity to be heard in evidence in advance of conviction, and his failure to hear mitigation in advance of sentence, “in my view, amount to a breach of natural justice in the conduct of the hearing which rendered it so fundamentally flawed as to warrant an Order of Certiorari”.

The court was satisfied that the prosecution of the applicant was comprehensive in that extensive evidence had been called and the prosecution witnesses had been fulsomely cross-examined, so that it could not be said that the proceedings were void ab inito.

The court was persuaded by the applicant’s argument that Sweeney v Brophy [1993] 2 IR 202 applied, in that the District Court acted within jurisdiction but that there was a breach of fundamental tenets of constitutional justice in the hearing and a failure to hear the evidence in the case, such that the trial could be properly characterised as one that has not been held in due course of law.

Ms Justice Brett outlined that the fundamental breaches against the background of the uncontested account of trial “indicates that the applicant was in jeopardy or peril of conviction in the course of the trial. The applicant is therefore entitled to avail of the special plea of autrefois acquit.”

In the event that her conclusions were incorrect, Ms Justice Brett then moved on to consider the exercise of the court’s discretion.

The judge noted the respondent’s contention that the societal benefit in the prosecution of crime may be somewhat heightened where the alleged offences are said to have been committed by a serving member of An Garda Síochána on active duty, finding that “the public is entitled to expect high standards and have confidence in the members who serve on its behalf” and remarking that the applicant “does not invoke the sympathy of the Court”.

However, the court highlighted that the applicant was entitled to a trial in due course of law, and that if a retrial was ordered, the applicant could be disadvantaged where his line of defence had been revealed and frailties in the prosecution evidence could be addressed in advance of any retrial and where the “applicant has lost the opportunity of facing the charges against him wholly afresh at first instance”.

Conclusion

Accordingly, the High Court declined to remit the matter back to the District Court.

McCarthy v The Director of Public Prosecutions [2026] IEHC 764