The High Court refused an application to quash the return of an accused man for trial in the Dublin Circuit Criminal Court on an arson charge. The court held that the District Court had the prosecution’s consent to send him forward and that the return was valid under section 4A of the Criminal Procedure Act 1967.
The judgment, delivered by President of the High Court Kearns on 14 January 2011, concerned an alleged arson at an Esso garage at Grange Road, Rathfarnham, Dublin, on 1 September 2007. The charge alleged that fire damage was caused to a car wash valued at €76,386. Those details were set out in the applicant’s affidavit; the High Court was deciding the judicial review application, not the criminal charge.
The Director of Public Prosecutions initially directed summary disposal. The District Court judge declined jurisdiction, and the accused was sent forward for trial on 18 February 2009 after the prosecution consented to the return. After the Supreme Court’s decision in Reade v District Judge Reilly raised questions about returns to trial for so-called hybrid offences, the Director told the accused’s solicitor in January 2010 that a nolle prosequi or an application to quash the return was being considered. The Director later changed course following the Supreme Court’s decision in Gormley v District Judge Smyth and intended to proceed with the prosecution.
The applicant argued that Reade meant the District Court had no power to send him forward after declining summary jurisdiction. He also said the Director should be held to the proposed nolle prosequi and that continuing the prosecution would be unfair and prejudicial.
Kearns P. found that the case more closely resembled Gormley. The District Court order expressly recorded the prosecution’s consent to the return, and that consent had not been challenged in the judicial review. The court held that section 4A required proceedings to be struck out where the prosecutor refused consent, but that was not the situation here. The section did not make striking out obligatory whenever a District Court judge declined jurisdiction.
The court also rejected the claim that the Director was prevented from changing course, noting that the correspondence had made clear the accused would still face prosecution on the charge regardless of the procedural route taken. It refused the relief sought. The judgment did not determine the accused’s guilt or innocence; it left the prosecution able to proceed.