The High Court has refused Stephen Fogarty’s application to quash criminal proceedings against him in Nenagh District Court, ruling that he had no right to elect for a jury trial on the assault charge being tried summarily.
The judicial review challenge concerned the District Court’s decision on 24 September 2020 to accept jurisdiction over three charges: assault causing harm, threatening and abusive behaviour, and resisting or obstructing a peace officer. Fogarty argued that the judge should have asked whether he wanted a jury trial. He represented himself in the High Court proceedings.
The judgment, delivered by Mr Justice Max Barrett on 12 July 2021, said the threatening and abusive behaviour and resisting or obstructing charges were summary offences and were not electable. The jury-trial argument could therefore relate only to the assault causing harm charge under section 3 of the Non-Fatal Offences against the Person Act 1997.
That offence can be tried summarily or on indictment. The Director of Public Prosecutions had directed a summary trial, and the District Court had accepted jurisdiction. The judge said the 1997 Act provides no right to elect for a jury trial on that charge, and that the offence is not listed as a scheduled offence under the Criminal Justice Act 1951.
Fogarty had argued that a jury-election right attached to the older common-law offence of assault occasioning bodily harm, which was listed under the 1951 Act, carried over to the section 3 offence. The judgment rejected that argument. It said the common-law offence was abolished in 1997 and the section 3 offence was a new and separate offence; the earlier election right did not transfer to it.
Fogarty also suggested that the DPP had chosen summary charges to deny him a jury trial. The court rejected that suggestion and referred to the DPP’s independent role in deciding what charges to prosecute and whether a hybrid offence should be tried summarily or on indictment. It said judicial review of that administrative decision was available only in limited circumstances, which did not arise in this case.
The court found nothing unlawful in the proceedings to date and refused the requested order of certiorari. The criminal case was still pending in the District Court. The judgment records that Fogarty had told the court he was struggling to find a solicitor for his trial and suggests he consider widening his search to Dublin, Cork or Limerick. The court reserved the question of costs for a later hearing.