The Supreme Court has ruled that a defendant applying to dismiss charges before trial under section 4E of the Criminal Procedure Act 1967 cannot be required to disclose the grounds of the application in advance. It allowed an appeal by the Director of Public Prosecutions and quashed a Circuit Court order requiring that disclosure.
The case concerned Patrick Phipps, who was facing three charges under the Misuse of Drugs Acts, including one under section 15A. After an earlier set of charges was struck out because the prosecution had not produced required documents in time, he was re-charged and sent forward for trial in the Circuit Criminal Court.
Phipps’s motion, filed in June 2003, sought dismissal of all charges on the indictment under section 4E. The section allows an accused, after being sent forward for trial, to apply to the trial court to dismiss one or more charges. It requires notice of the application to the prosecutor at least 14 days before the hearing, subject to the court’s power to allow shorter notice.
The prosecution submitted that the motion was insufficient because it did not identify the grounds for dismissal. The Circuit Court required Phipps to give those grounds before the hearing. He sought judicial review, and the High Court ruled in his favour. The DPP appealed to the Supreme Court.
Delivering the judgment, Mr Justice Hardiman said section 4E requires notice of the application but does not expressly require advance notice of its grounds. He rejected the argument that such a requirement was implied by the notice provision or by a trial judge’s inherent power to manage proceedings.
The judgment distinguished criminal proceedings from civil case management. It said that requiring a defendant to disclose legal or factual material could oblige them to reveal matters they did not wish to disclose at that stage. The court also noted that the prosecution could seek an adjournment if it needed more time to respond to an application.
The Supreme Court’s decision addressed only whether advance disclosure could be required. It allowed the appeal and quashed the order directing Phipps to give the grounds of his application. It did not determine whether the evidence against him was sufficient, dismiss any charge, or decide the criminal case.