The Supreme Court has extended Kevin Tracey’s time to appeal a High Court decision that refused to quash a District Court contempt finding, allowing the appeal to proceed on limited grounds.
Mr Justice Clarke delivered the judgment on 10 February 2017. The application, filed in late November 2016, sought an extension of almost nine years. The Court ordered that the appeal proceed as a new jurisdiction appeal, but confined it to whether the way the contempt finding was made breached rights under the Irish Constitution, the European Convention on Human Rights or European Union law.
The contempt finding had resulted in Mr Tracey being committed to prison. The underlying order was made by District Court Judge Aeneas McCarthy. In March 2008, the High Court, in a decision by Mr Justice McGovern, declined to quash it. The Supreme Court’s judgment addressed only whether time should be extended and the terms on which the appeal could proceed; it did not decide whether the contempt finding or imprisonment was lawful.
The Court considered whether the application should be assessed under the appeal system that existed when the High Court order was made or under the system introduced by the 33rd Amendment. It found that Mr Tracey met the constitutional threshold for a direct appeal to the Supreme Court under the newer system, including the requirement for an issue of general public importance and exceptional circumstances. Since that meant the constitutional issue would not affect the result, the Court left the question of whether the amendment applied retrospectively unresolved.
The Court said the established criteria for extending appeal time were met: an intention to appeal had been formed in time, arguable grounds existed, and there was an adequate explanation for the delay. Mr Tracey had regularly attended the court office to ask when the High Court order would be perfected. The order’s date of perfection had been backdated; the Courts Service accepted that fact, although the reason was not clear. Once he discovered the problem, the Director of Public Prosecutions declined to consent to an extension. The Court accepted that this explained why the appeal was not filed on time.
The remaining delay was also exceptional, the Court said. Mr Tracey was unrepresented, had faced an unusual situation involving the Courts Service, and had experienced significant ill health during much of the relevant period. The Court found no reason that it could not decide the appeal fairly despite the passage of time. It directed the DPP to file an adapted respondent’s notice within two weeks and gave Mr Tracey eight weeks to file written submissions, after which the case was to proceed under the applicable case-management procedures.