The High Court dismissed Ruairí Mac Cárthaigh’s application for permission to bring judicial review proceedings over a charge relating to his alleged refusal to provide a breath sample. The judgment, delivered by Charleton J on 30 May 2008, turned on delay. The court did not decide whether the charge or the underlying demand was legally valid.
The applicant sought to restrain his prosecution under drink-driving legislation. Clarke J had granted him permission ex parte on 27 May 2007. The respondents later applied to dismiss the claim because it had been brought late. Charleton J considered the permission question afresh, explaining that the delay had not been addressed in the evidence put before Clarke J.
The judgment states that the alleged offence arose on 5 May 2005, when Garda Daniel O’Connor brought the applicant to Tullamore Garda Station and a statutory demand was made for a breath sample. The applicant was charged with failing to provide a sample. The judgment says questions for the District Court trial included the validity of the duties imposed and the circumstances of the alleged refusal.
A summons in Irish required the applicant to attend Tullamore District Court on 21 December 2005. His solicitors obtained relevant witness statements in Irish and later sought English versions. A hearing was set for 20 November 2006; the applicant said he was ill and did not attend, and a medical certificate had been left at the court office. After a bench warrant was executed on 20 December 2006, a new trial date was set for 29 May 2007. On that date, he first said he wanted to seek judicial review.
He attributed the delay to changing solicitors shortly before the second trial date, to assert his right to Irish translations of about 20 amendments to the District Court Rules. Charleton J said the application did not explain why the amendments were materially relevant to the proposed Irish-language trial, or why proceedings could not have been brought earlier. He found no explanation or excusing circumstances for the delay.
The court held that the earlier ex parte permission had not extended the time for starting proceedings, and that it could assess the application de novo. It dismissed the application at the permission stage. The judgment added that, if this had been a substantive hearing, the court would also have dismissed it in the exercise of its discretion because of the inexcusable delay. No substantive determination of the applicant’s proposed legal challenge was made.