The High Court has refused an application by Courtney Walsh and Kirsty Walsh to strike out the Director of Public Prosecutions’ appeal by way of case stated, and extended time for the prosecution to complete the required procedural steps in the correct order.
The ruling, delivered by Mr Justice Heslin on 31 August 2021, concerns a District Court decision dismissing charges under the Prohibition of Incitement to Hatred Act 1989. The respondents had pleaded guilty to separate public order offences. The DPP’s appeal raises whether the District Court was right to find that the prosecution had not established the consent required by section 8 of the 1989 Act.
The High Court did not decide that underlying question. The hearing was about the respondents’ motion to strike out the appeal because the DPP had not followed the statutory sequence for serving notice of appeal and a signed case stated before transmitting the case to the High Court.
The case stated was signed on 30 October 2020 and lodged with the High Court that day. The DPP then sent the respondents and their solicitors the signed case stated and notice of appeal. The respondents’ solicitors received the documents by email on 2 November; hard copies followed. The court accepted that the sequence required by law had been reversed, but found that the documents were served promptly and that the error caused no prejudice.
The DPP’s solicitor said she had inadvertently lodged the case before serving the documents. The judge described the error as understandable and accepted that the parties had been aware of the intended appeal and had engaged in preparing the case stated. He found no evidence that the DPP knew of the sequencing mistake before the respondents raised it in their April 2021 motion.
The respondents argued that the court could not extend time to remedy a breach of the statutory sequence, and that an extension would be contrary to the interests of justice given the appeal concerned a decision to dismiss charges. The judge rejected those submissions, following the approach in an earlier High Court decision, DPP v Kudriacevas. He held that the court had power to extend time for compliance with all procedural requirements in section 2 of the Summary Jurisdiction Act 1857, including the requirement to take the steps in the right order.
The court refused the strike-out motion and enlarged time so the DPP could repeat the steps already taken, this time in the correct sequence. It directed the parties to correspond about the form of order, including costs; if they could not agree, short written submissions were to be filed within 14 days.