DPP not allowed time to challenge decision overturning woman’s prison sentence for theft of toys

A High Court judge has refused to give the Director of Public Prosecutions (DPP) the necessary extension of time to challenge a decision overturning a woman’s two-month prison sentence for theft of toys worth less than €100.

Judicial reviews must be initiated within three months of a disputed decision but the DPP sought judicial review five months after the Circuit Court decision of November 19th, 2019.

The woman had been convicted and sentenced before the District Court in July 2019.

The DPP argued, in the judicial review, her appeal to the Circuit Court in November 2019 concerned severity of sentence only and the Circuit Court exceeded its jurisdiction in allowing her appeal in full.

Lawyers for the DPP asked the High Court to grant the necessary extension of time to bring the judicial review proceedings.

In a judgment on Friday, Mr Justice Garrett Simons declined to extend time, with the effect the judicial review was dismissed. The judge added he proposed to recommend the woman’s lawyers get their legal costs under the Legal Aid-Custody Issues Scheme.

The DPP secured leave on April 20th, 2020 for judicial review but the grant of leave did not include an extension of time, with the effect an extension had to be secured when the matter was heard.

In seeking an extension, the State Solicitor for Wexford said the delay arose due to awaiting the Digital Audio Recording (DAR) of the Circuit Court proceedings and the formal order of that court.

The judge said the requisite court application for the DAR was not made until January 28th, 2020, some two months after the Circuit Court hearing. He was also not satisfied the DPP had shown there was any need to take up the DAR in advance of seeking judicial review.

In any event, both the DAR and Circuit Court order were obtained on February 14th, 2020, he said. The three-month period for judicial review had not expired by then but “no explanation whatsoever” was offered on affidavit for the subsequent two-month delay in applying for leave for judicial review.

This was also not a case of such fundamental error in the disputed decision to warrant granting the extension of time, he said.

Nor had the DPP shown it was necessary to extend time on grounds of public interest in the prosecution of crime, he held. The woman had the benefit of a significant order affecting her liberty and the delay seeking judicial review was prejudicial to her as she was entitled to assume, after three months had passed, the order was final.

He also found “no factual basis” for arguments the delay was partly attributable to Covid-19 restrictions on court sittings, for reasons including public health measures were not introduced until mid-March 2020, when the application for judicial review would already be out of time and because the High Court continued to sit to hear certain applications, including urgent judicial review applications.

The DPP, he concluded, had failed to show objective justification for the delay. While it was argued the delay was short, if the court allowed an extension of time on that basis in the absence of objective justification for the delay, the “same indulgence” would be expected by all potential litigants, he added.