The High Court has refused S. F.’s application for judicial review of a Circuit Court judge’s decision not to award him costs after his acquittal in a criminal case. Mr Justice Hedigan held that the trial judge acted within her discretion and gave adequate reasons for refusing costs.
S. F. had been charged with knowingly possessing child pornography in temporary internet files on a computer at his business premises on 27 May 2002. At the end of the prosecution case, the trial judge directed the jury to acquit him, finding insufficient prima facie evidence that images were accessible to him on that date and that he knew of them.
The trial judge first refused his application for costs in February 2005. The High Court quashed that decision in 2007 because the reasons were not sufficiently specific, and sent the costs application back for reconsideration. On 22 October 2008, the judge again refused costs, citing the technical nature of the grounds for acquittal, the prosecution’s proper basis, and her rejection of S. F.’s claim that pre-trial correspondence had alerted prosecutors to the flaw that led to the acquittal direction.
In the second judicial review, S. F. argued that the judge had failed to follow the earlier High Court judgment, misunderstood the basis of the acquittal and the rules on costs, and breached his constitutional and Convention rights. He also challenged the absence of a statutory appeal from the costs ruling. The respondents disputed those claims and argued that costs in criminal proceedings involve a broad judicial discretion, including consideration of the public interest in prosecuting crime.
The High Court held that the 2007 judgment had not made a binding finding that the correspondence put prosecutors on notice of a weakness in the case. It had identified the correspondence as relevant to the costs question, while leaving its significance to the trial judge. The court also held that the applicant could not argue this point as a ground of review because it had not been clearly included in the grounds on which leave was granted.
The court found that the trial judge had considered the correspondence and was entitled to assess its weight. It held that her stated reasons were proper considerations and that her decision was not unreasonable. The High Court stressed that judicial review was not an appeal on the merits of the costs application and that the trial judge, having heard the criminal case, was best placed to assess it.
The court also ruled that the costs decision did not violate the presumption of innocence: the trial judge had not said S. F. was guilty or cast doubt on his innocence. It found that the lack of a statutory appeal did not itself breach the Constitution or the State’s obligations under the European Convention on Human Rights; judicial review remained available against an unlawful or unreasonable exercise of discretion. The court refused all relief sought. It did not decide what remedies might be available if a Convention breach had been established.