The High Court has quashed a Circuit Court decision refusing Sean Foley his costs after he was acquitted by direction at the close of the prosecution case. The application must be heard and considered again by the Circuit Court judge.
In a judgment delivered on 2 July 2007, Mr Justice McCarthy held that the reasons given for refusing costs were not sufficiently specific. He said the decision was a nullity because it breached the constitutional entitlement to fair procedures.
Foley had sought judicial review of the Circuit Court’s 2 February 2005 refusal. The Circuit Court judge had said she had reviewed the evidence, correspondence and arguments, but considered it inappropriate to award costs. Foley argued that the judge had failed to give adequate reasons and had acted irrationally or unreasonably. He had not received legal aid under the Criminal Justice (Legal Aid) Act 1962.
The costs application followed Foley’s acquittal, directed on 20 December 2004 after the judge found insufficient prima facie evidence that he knew of, or could access, relevant material on the date alleged. The prosecution concerned alleged possession of child pornography on temporary internet files. The judgment records that the prosecution relied on images found on Foley’s computer and statements he had made to gardaí; Foley denied knowingly obtaining or possessing the images.
Mr Justice McCarthy said the Circuit Court judge was not required to address every argument. But, given the evidence, correspondence and competing submissions, he considered that the judge needed to explain more clearly what had informed her decision. The reasons did not show how the different material had led to the refusal, leaving Foley and a reviewing court unable to assess the basis for it.
The High Court did not decide whether the refusal was irrational or unreasonable. Mr Justice McCarthy said that question could not properly be assessed without more specific reasons. He quashed the decision and remitted the costs application to the Circuit Court for the judge to hear and consider again.