The High Court refused Michael Berry’s application for judicial review seeking to stop his criminal trial over disclosure and legal aid concerns, finding he had not established a real risk that he could not receive a fair trial.
Mr Justice Hedigan gave his reasons on 26 July 2012, after refusing the relief at a hearing on 2 July. The application challenged decisions and disclosure arrangements in a prosecution before Wexford Circuit Criminal Court. The judgment records allegations that Mr Berry was part of a gang involved in ATM thefts and aggravated burglaries; those allegations were not determined in this judicial review.
The defence argued that about 500 handwritten witness statements and other material had not been provided in a usable form or with enough time for review. It also sought information concerning an alleged accomplice and informant, including the basis of any arrangement with prosecutors and his admission to a witness protection programme. The defence said that reviewing extensive material at Enniscorthy Garda Station without legal aid support would impair preparation.
The respondents said disclosure had been available for inspection and copying at the station since November 2011, and that the trial judge was managing disputes about what further material should be disclosed. They also argued that the timing and preparation difficulties followed repeated changes of legal team. On legal aid, the Department’s evidence was that payment for disclosure review could be considered according to the circumstances, but no written application had been made in this case.
The High Court held that stopping a criminal trial by judicial review required exceptional circumstances: a real risk of an unfair trial that could not be avoided through the trial judge’s rulings and directions. Mr Justice Hedigan found that the trial judge had addressed disclosure issues on several occasions and had said he would stop the trial if improper non-disclosure threatened an injustice. In those circumstances, the High Court was not satisfied that intervention was warranted.
The court also rejected the legal aid complaint as premature. No decision on an enhanced fee had been made because no proper application had been submitted. The court refused the relief sought; it did not decide whether Mr Berry was guilty, nor determine every disputed disclosure question. Those matters remained for the criminal proceedings and the trial judge.