The High Court has ruled that a Circuit Court judge had jurisdiction to revisit an order allowing Michael Richards’s appeal, but said fair procedures required Richards to have an opportunity to argue against reviving it. The court reserved the form of its order for discussion with counsel.
Richards had pleaded guilty in the District Court to assault causing harm and wilful obstruction, offences alleged to have occurred at Oliver Bond House on 22 September 2011. He received a nine-month prison sentence for the assault; the public order offence was taken into consideration. He was admitted to bail pending appeal, with Liam Byrne approved as an independent surety.
Richards’s appeal was listed in the Dublin Circuit Criminal Court on 20 November 2012. When it was called at 10am, no garda was present to give evidence, and the judge allowed the appeal. Sergeant Maureen Burke arrived at about 10.30am. Later that day, the prosecution applied to have the appeal re-entered. Richards’s counsel, who was in court by chance for another matter, objected, saying the appeal had been concluded and Richards had left on that basis. The judge then reinstated the appeal and adjourned it to 18 December for mention.
Richards sought judicial review, arguing that the judge had no jurisdiction to undo the earlier order and that, in any event, the afternoon decision was made without notice to him. The Director of Public Prosecutions argued that the matter remained “in the breast of the court” and that no substantive decision adverse to Richards had been made: his appeal had merely been adjourned.
Mr Justice Birmingham accepted that the “breast of the court” jurisdiction remained part of Irish law and that the judge could change his mind. But he held that the person who benefited from an earlier order must have an opportunity to oppose its variation. Although Richards was entitled to have his appeal considered on its merits, he was not entitled to have it allowed because the prosecuting garda was late after receiving inaccurate information about the listing time.
The judgment did not state the final form of relief. The judge said he would discuss the order with counsel.