The Court of Appeal has dismissed Patrick McNamee’s appeal against the refusal of leave to seek judicial review of criminal proceedings arising from his temporary release from prison.
In a judgment delivered on 25 July 2017, Mr Justice Mahon, with whom the judgment records agreement with the High Court’s decision, concluded that McNamee had not shown an arguable case for the relief he sought. The appeal concerned the High Court’s refusal of leave, not a determination of whether McNamee committed the alleged offences.
McNamee was serving a sentence of four and a half years, with the final 12 months suspended, for robbery, attempted robbery, burglary and unauthorised taking of a motor vehicle. He was temporarily released from Mountjoy Prison on 17 December 2015 under conditions that included keeping the peace and being of good behaviour.
The judgment recounts that gardaí alleged they saw him trespassing on residential property on 23 December 2015. He was charged with an offence under section 11 of the Criminal Justice (Public Order) Act 1994 and with being unlawfully at large under section 6 of the Criminal Justice Act 1960, on the basis that he had breached a temporary-release condition.
McNamee argued that the “good behaviour” condition was too vague to support the unlawful-at-large charge and sought, among other relief, to stop the prosecution and challenge the condition’s validity. The Court of Appeal considered whether the judicial-review application was premature. Mr Justice Mahon said such challenges may, in the interests of justice, be considered before a criminal trial where a person argues that they cannot understand the charge.
But the court also identified a procedural defect: the application’s grounding affidavit had been sworn by McNamee’s solicitor rather than by McNamee. Given that his central claim was that he did not understand what conduct the condition prohibited, the court said his own sworn evidence was required.
The judgment further noted that the charge did not allege merely a breach of a general good-behaviour condition. It specified that the alleged breach was an attempt to commit trespass, which was also the subject of a separate charge. The court held that the alleged conduct was sufficiently identified for the challenge to fall short of the threshold for leave.
The judgment did not decide whether McNamee was guilty of attempted trespass or being unlawfully at large. It said that if he were found not guilty of the alleged attempted trespass, he would not have breached the condition on that basis and, absent another proven breach, would be entitled to acquittal on the unlawful-at-large charge.
The Court of Appeal dismissed the appeal, leaving the refusal of leave in place.