Ann O'Loughlin
Two men alleged to have published photos on Twitter of two teenage boys convicted of the murder of a teenage girl have taken a High Court challenge in a bid to prevent them being sent forward for trial to Dublin Circuit Criminal Court.
In proceedings against the DPP, Kyle Rooney (25), Rathvale Park, Ayrfield, Dublin, and Jamie Shannon (25), Bremor, Castlegate, Balbriggan, Co Dublin, are challenging a District Court judge’s refusal last December to accept jurisdiction for summary disposal of the charges in that court and instead adjourn the matter for service of a Book of Evidence.
Both applicants are alleged, contrary to the right of accused and convicted minors to anonymity under the Children Act 2001, to have published photos on their Twitter accounts on or about June 19th 2019 of two boys convicted of the murder of a teenage girl.
Section 51 of the 2001 Act creates a hybrid offence which can be prosecuted summarily in the District Court where the maximum penalty is 12 months imprisonment and/or a fine not exceeding the Euro equivalent of £1,500.
DPP direction
When the men’s cases were among 10 similar cases which came before the District Court on October 28th 2020, the sitting Judge, Judge Brian O’Shea, was informed the DPP had directed summary disposal of the charges.
After the prosecution summarised the nature of the alleged offences, Judge O’Shea accepted summary jurisdiction in respect of all 10 cases and adjourned them to December 2nd 2020.
When the cases returned before the District Court that day, the presiding judge, Judge John Hughes sought and heard an outline of the alleged facts in each case.
He decided the alleged offences were not minor and not fit for summary trial in the District Court. The proceedings have since been adjourned to March 2021 for the DPP to indicate consent to the defendants being sent forward for trial to the Circuit Court, where jail terms of up to three years and/or a fine of up to the euro equivalent of £10,000 can be imposed.
On Monday, Conor Devally SC, for Mr Rooney and Mr Shannon, secured leave from Mr Justice Garrett Simons to bring judicial review proceedings aimed at overturning the December 2nd order.
It is alleged the refusal of summary jurisdiction concerning both prosecutions, in circumstances where the District Court earlier accepted jurisdiction, was “fundamentally unfair”, in excess of jurisdiction, breached fair procedures and natural justice, and was not in accordance with law.
Jurisdiction
Counsel argued, while a change of position by a District Court judge concerning jurisdiction is permitted, District Judge Hughes’ decision was made in excess of jurisdiction because no new information indicating a greater level of seriousness or moral culpability which was different to the information before Judge O’Shea had been provided.
The grounds of challenge also include claims District Judge Hughes erred in failing to deal with each prosecution on its own merits and adopting what counsel alleged was a “blanket policy” in not distinguishing between any of the cases before him in terms of the specific alleged facts, level of severity and/or moral culpability.
In affidavits, Tony Collier, of Ferrys Solicitors, the solicitor for both applicants, said he objected in the District Court on December 2nd to Judge Hughes’ having revisited the issue of jurisdiction.
Mr Collier said he wrote to the DPP on December 8th requesting confirmation by December 11th the prosecutions would be discontinued failing which he would otherwise take it the matter was proceeding on indictment and judicial review would be pursued.
As matters stand, his clients’ cases remain adjourned to February 17th for service of a book of evidence of foot of which both applicants face return for trial on indictment to the Circuit Criminal Court, he said.
Mr Justice Simons said he was satisfied the applicants had made an arguable case for judicial review. He also granted a stay on the District Court order pending the outcome of the judicial review.
