The High Court has refused leave for Stephen Manning to pursue judicial review seeking to prohibit a criminal trial that was already underway, while preserving his ability to seek certiorari after the criminal proceedings conclude.
In an ex tempore judgment delivered on 21 November 2016, Mr Justice Richard Humphreys said the prosecution had opened its case and had been running for several days, but had not concluded. The trial was paused under an interim stay granted on 14 November.
The judge said the binding Supreme Court decision in Mellett v O’Reilly indicated that, absent truly exceptional circumstances, prohibition should not be sought midway through a trial. An applicant seeking that remedy should do so in advance, the judgment said, or could seek certiorari afterwards.
The court said refusing leave would not deprive Manning of the right to return to seek judicial review by certiorari if dissatisfied with the eventual decision in the criminal proceedings. The judgment said he was not losing rights by engaging with the trial.
Manning had brought two judicial review cases: one against Judge Aeneas McCarthy and another against the Director of Public Prosecutions. The judge said only the case against the DPP was appropriate; even if leave had been granted, the case against the judge would have been struck out.
The court refused leave, applying Mellett v O’Reilly, and discharged the interim stay. The judgment does not decide the ultimate outcome of the criminal proceedings.