The High Court has removed an invalid public order charge from an order sending Mark Murphy forward for trial from Kilmainham District Court.
Mr Murphy had been charged with eight offences on 9 July 2008. After three two-week remands, District Judge William Early made an order on 21 August 2008 returning him for trial on six charges.
Five were indictable offences under the Criminal Justice (Theft and Fraud Offences) Act 2001 and the Criminal Damage Act 1991. The sixth was a summary offence under section 13 of the Criminal Justice (Public Order) Act 1994.
All sides accepted that the summary charge had been included in error. Irish law allows certain summary offences to be added to an indictment after an accused has been validly sent forward for trial, but there was no statutory basis for sending Mr Murphy forward for trial on that summary charge in the first place.
The Director of Public Prosecutions indicated that the prosecution did not intend to proceed with the public order charge and argued that the judicial review had therefore become moot.
Mr Justice O’Neill rejected that argument. He held that the DPP could not alter the legal effect of the District Court order simply by deciding not to prosecute one of the charges. The Circuit Court also had no appellate or judicial review jurisdiction to correct the defective return itself.
The judge said the return for trial was severable because each charge had to be considered individually by the District Court. That meant the High Court did not need to quash the entire order.
He also found that leaving the invalid charge formally in place could affect the legal basis on which the Circuit Court exercised jurisdiction over the case.
The High Court therefore granted certiorari quashing only the part of the return for trial relating to the summary public order offence. The five indictable charges were left intact and could continue toward trial.