The High Court has dismissed a constitutional challenge to rules that allow prosecutors to appeal some pre-trial decisions under section 4E of the Criminal Procedure Act 1967, while giving an accused person no equivalent appeal after an unsuccessful application.
The plaintiff, who faced seven charges under the Misuse of Drugs Acts, argued that the appeal arrangements breached his rights to a fair trial and equality of arms. His application to dismiss charges under section 4E had been refused by the Circuit Court. The criminal proceedings were adjourned pending the outcome of his constitutional case.
The challenge focused on whether the High Court should follow Brohoon v Ireland, an earlier decision that rejected an identical challenge to section 4E. The plaintiff argued that Brohoon was unsound, including because it had not considered certain prosecution appeal rights or the Supreme Court’s decision in Carmody v Minister for Justice. He also disputed the earlier judgment’s account of the options available to an accused after an unsuccessful section 4E application.
The defendants and the Director of Public Prosecutions, a notice party, submitted that the court should follow Brohoon. They argued that the prosecution appeal rights raised by the plaintiff applied after trial and were not relevant to this pre-trial procedure. The notice party also submitted that section 4E rulings could establish precedents, including on search warrants, and should therefore be open to prosecution appeal.
Mr Justice Barr held that a High Court judge should not depart lightly from a decision of a judge of equal standing, and that no sufficient reason had been shown to depart from Brohoon. He accepted that the prosecution appeal rights cited by the plaintiff were not relevant to the pre-trial process under section 4E. He also accepted that section 4E rulings could have precedent value, providing a justification for the prosecution’s appeal right.
The judge concluded that section 4E was not unconstitutional, in whole or in part, and that the difference in appeal rights did not create inherent unfairness. He said an accused whose application was refused retained the ability to challenge evidence at trial and to use existing appeal and judicial review procedures.
The court did not decide the defendants’ separate objection that the plaintiff lacked standing. It refused all relief sought in the plenary summons and statement of claim and dismissed the action. Because the judgment was delivered electronically, the parties were given two weeks to provide written submissions on the form of the final order, costs and any other arising matters.