The Supreme Court judgment in a judicial review appeal concerned whether the Director of Public Prosecutions could bring identical charges again after discontinuing an earlier case in which the accused had been found unfit to be tried. Justice Hardiman would grant an order restraining prosecution on the new charges, reasoning that the earlier judicial finding could not be set aside without a further judicial decision.
The charges arose from allegations of burglary and indecent assault in a Cork Circuit Court case. In July 2006, after conflicting psychiatric evidence, the Circuit Court found the accused unfit to plead and adjourned the case. The judgment explains that the statutory test covers broader aspects of fitness to be tried, including understanding the proceedings and instructing a lawyer.
The State later obtained a report from Dr Harry Kennedy, who considered the accused fit to be tried. The prosecution planned to call him so the Circuit Court could consider whether the accused was no longer unfit. But after discussions between State lawyers and Dr Kennedy on 22 November 2007, the prosecution entered a nolle prosequi, discontinuing the case. The court did not hear Dr Kennedy’s evidence or decide whether the accused had become fit to be tried.
About five months later, the DPP brought the accused before the District Court on the same charges, and the case was returned for trial in the Cork Circuit Court. The accused sought judicial review; the High Court dismissed the application, and he appealed.
Justice Hardiman said the statutory route for resuming the original proceedings required the Circuit Court to determine fitness after hearing relevant evidence. In his view, the nolle prosequi and fresh charges had the effect of requiring the accused to litigate fitness again, despite the existing judicial finding. He said that finding could be displaced only by another judicial determination, and that discontinuing the case could not itself erase it.
The judgment records Justice Hardiman’s conclusion and proposed order. It does not state the outcome of the appeal by the Supreme Court as a whole.