The High Court has refused Martin O’Brien’s application to quash a Circuit Criminal Court decision that left two possession charges to be tried. The court ruled that judicial review could not be used to appeal the earlier decision on the sufficiency of the evidence.
O’Brien is charged under section 15(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001 with possessing a crowbar, described in the judgment as a “jimmy bar”, and a screwdriver, allegedly intending that they be used in connection with theft. He awaits trial in Dublin Circuit Criminal Court. The charges remain allegations; the High Court made no finding on whether he possessed the items or had the alleged intention.
The judgment records an allegation that O’Brien was a front-seat passenger in a car driven by another person. After a high-speed chase in or around Dublin’s Port Tunnel/Swords Road area, the car collided with a taxi. The items were found in the front passenger footwell. During questioning after his arrest, O’Brien gave information about the previous evening, meeting the driver and pills he had taken, and did not respond to some questions.
In May 2017, O’Brien applied to the Circuit Court under section 4E of the Criminal Procedure Act 1967 to dismiss the charges, arguing that there was insufficient evidence of possession or intent. The prosecution submitted that the items and circumstances of the stop could support an inference of intent. Judge Martin Nolan refused the application, saying there was a case to answer at that stage while noting that the prosecution would have to prove its case before a jury.
O’Brien then sought judicial review, asking the High Court to quash that refusal and to prohibit further prosecution on the two charges, among other reliefs. His counsel argued that the evidence did not show an intention to use the articles in a future theft, and relied on an English Court of Appeal decision concerning the interpretation of the offence.
Justice Max Barrett said the legal argument about the statute’s interpretation was not an issue the court could properly decide in this judicial review. Judicial review examines the decision-making process, he said, and is not an appeal on the merits. The judgment also pointed to safeguards available at trial, including an application for a direction of no case to answer and, if convicted, an appeal against conviction.
The High Court refused all relief sought. It did not dismiss the charges or determine the evidence that will be considered at trial.