The Supreme Court has dismissed Eamon Dillon’s appeal against the refusal of judicial review over his return for trial on an arson charge, holding that the District Court judge had authority to send him forward for trial with the Director of Public Prosecutions’ consent.
The judgment, delivered by Chief Justice Susan Denham on 30 October 2013, concerns an alleged arson offence said to have been committed on 1 September 2007. The charge was under section 2 of the Criminal Damage Act 1991 and was described as a “hybrid” offence, capable of trial summarily or on indictment.
The DPP had initially directed summary disposal. The District Court judge declined jurisdiction, and after a book of evidence was prepared, sent Dillon forward for trial in the Dublin Circuit Criminal Court on 18 February 2009. The DPP later indicated an intention to enter a nolle prosequi, then withdrew that position after considering another Supreme Court decision and said the prosecution could continue.
Dillon sought judicial review, arguing that the return for trial was invalid under the Supreme Court’s earlier decision in Reade v Judge Reilly. He also argued that the DPP should be held to the stated intention to enter a nolle prosequi. The High Court refused relief in January 2011, and Dillon appealed. The DPP argued that the return was valid under the reasoning in Gormley v Judge Smyth.
The Supreme Court distinguished Reade, finding that the relevant comments there were obiter and that the case had not addressed section 4A of the Criminal Procedure Act 1967. It adopted the analysis in Gormley: where a hybrid offence is to be tried on indictment with the DPP’s approval, the District Court judge may take the procedural steps needed to send it forward, absent unfair procedures, oppression or abuse of process.
The court clarified that a hybrid offence does not change its legal nature when a method of prosecution is chosen. Before sending a person forward, the District Court judge must ascertain whether the DPP consents; the judge should not take steps concerning the book of evidence before doing so. If the DPP refuses consent, the judge may strike out the matter.
The court dismissed the appeal. It did not quash the return for trial or prohibit the prosecution. The judgment resolved the judicial review appeal; it does not report the outcome of the arson charge itself.