The High Court has quashed a Virginia District Court conviction after finding that the judge had twice identified the offence as one under section 19(1) of the Criminal Justice (Public Order) Act 1994, although the charge sheet described resisting a peace officer.
Mr Justice Barr ruled that the applicant had been convicted at the end of the hearing on 19 October 2018, even though the formal District Court order did not record a conviction. The order provided for his arrest and return to court for sentencing. The High Court found that the judge’s statements in open court, captured in a recording, showed that he had decided to convict and had identified the offence as one under section 19(1).
The applicant had not attended the hearing because he was at an alcohol dependency unit in Newry. He was represented by a solicitor. Prosecuting gardaí gave evidence that he had resisted arrest; one also said he had assaulted a garda by injuring his thumb. The applicant’s solicitor did not cross-examine the first two witnesses. At the close of the prosecution case, she challenged the charge sheet because it did not specify which offence under section 19 was alleged.
The District Court judge said he was satisfied the case had been made out and that he would convict. When asked to clarify the offence, he said section 19(1). The Director of Public Prosecutions argued in the High Court that the judge had intended to convict for resisting under section 19(3), and had simply named the wrong subsection. The DPP accepted that a section 19(1) conviction could not stand because the applicant had not been given the required election for summary trial.
Mr Justice Barr held that the court could not assume the judge had made a mistake after twice naming section 19(1) in open court. He granted certiorari, quashing the conviction and order, and remitted the matter to the District Court for rehearing. He did not need to decide the separate challenge concerning whether the charge sheet had been amended. He said that, even if his conclusion about the subsection were wrong, uncertainty over whether and how it had been amended, and whether safeguards against prejudice from a late amendment were followed, would also justify quashing the order and directing a rehearing.