The High Court refused an applicant’s request to stop the Burnfoot Tribunal module from proceeding while a criminal case against him remained pending. The court also declared discharged an interim order made the previous Saturday, noting that the judge had not seen that order.
In a judgment delivered on 22 November 2005, Mr Justice Paul Butler considered an application for leave to seek judicial review and an interim injunction. The applicant wanted to challenge a ruling by the tribunal’s sole member, Mr Justice Frederick Morris, which had refused to postpone the module until the criminal proceedings were resolved. Morris had directed that the module be heard in private.
The applicant had been charged with unlawful possession of a firearm in December 2001. That charge remained pending. The High Court had stayed those criminal proceedings while awaiting judgment in separate proceedings in which the applicant had sought to prohibit the prosecution.
The Burnfoot module concerned the circumstances surrounding the arrest and detention of seven people in Burnfoot, County Donegal, on 23 May 1998, and the related investigation. The applicant argued that proceeding would irreparably prejudice his criminal trial by interfering with his right not to incriminate himself and giving the prosecution a “dry run” with witnesses and evidence likely to be used at trial.
Butler rejected both arguments. Because the tribunal hearing would be private, he said, the risk of influencing jurors did not arise. He also pointed to legislation providing that a person’s admission before a tribunal could not be used as evidence against that person in criminal proceedings. On the “dry run” argument, he said that if hearing evidence before a tribunal prevented a later trial, the criminal justice system would grind to a halt; retrials routinely involve evidence heard at an earlier trial.
The judge separately found that delay was a sufficient reason to refuse the application. The applicant had known by September that the module was due to begin in November, and the judge said the application could and should have been made in mid-September. Butler refused the application. The judgment does not state the module’s eventual outcome.