The Court of Appeal has allowed Patrick Towey’s appeal against the refusal of leave to seek judicial review of his conviction, finding that his challenge was brought in time and was arguable. It removed two paragraphs from an affidavit and remitted the application to the next judicial review list so a hearing date could be fixed. The court did not decide the judicial review application itself or quash the conviction.
Towey had been prosecuted over an alleged assault on Paul Cuddy. At a Ballaghaderreen District Court hearing on 11 September 2015, Towey asked the judge to recuse himself, saying the judge had earlier made comments about his difficulty finding a solicitor. The judge declined, saying he did not remember making a comment and would not hold it against Towey if he had. Towey was tried on 9 October and convicted; the judgment records that he was bound over to keep the peace.
Towey applied for leave to seek judicial review on 12 October, seeking to quash the District Court order. The High Court refused leave on three grounds: that the bias complaint was not arguable, that the application was out of time, and that a later affidavit contained scandalous allegations. The transcript of the September hearing did not contain the disputed earlier comment. A recording of the 10 July hearing, when Towey said the comment had been made, was unavailable.
The Court of Appeal held that the application was in time. The order Towey sought to challenge was made on 9 October, and he began proceedings three days later. Even if the relevant decision were the judge’s refusal to recuse in September, the appeal court said the application was still within time.
On recusal, the court applied the objective question of whether a reasonable person would reasonably apprehend that Towey would not receive a fair hearing from an impartial judge. It held that Towey had an arguable case: the judge’s inability to remember the alleged comment did not, by itself, answer that question, and the immediate refusal to recuse supported the claim that it required consideration.
The appeal court also considered a second affidavit containing allegations against the District Court judge. It concluded that striking out the entire claim was unnecessary to protect the court’s process. It directed that paragraphs 4 and 5 of the affidavit sworn on 10 December 2015 be removed, and returned the judicial review application to the High Court list for a hearing date to be fixed. The court said Towey would benefit from legal representation and noted that a scheme was available if he chose to use it.