Tuesday, August 31, 2021

Aodhan O'Faolain

A businessman has brought a High Court challenge over what he claims is a failure to inform him or his lawyers when his appeal against a motoring conviction was being heard before a lower court.

The action has been brought by Francis McGuinness, who operates a truck and trailer sales business.

He had appealed a 2013 conviction he received in the District Court for driving without a licence and driving while disqualified.

Change of lawyers

The hearing of his appeal was delayed for years for several reasons, including health reasons, change of lawyers, and to await the outcome of cases before the Supreme Court which impacted on his action.

The matter went before the Circuit Court in July 2019 where it was heard by Judge Petria McDonnell at the Courts of Criminal Justice in Dublin.

It is claimed that judge McDonnell adjourned the case to consider submissions by his counsel Alan Toal Bl to refer the Court of Appeal by way of case stated, to determine a point of law.

The point of law in this case was if road traffic convictions Mr McGuinness got in the 1980s could be taken into account by the judge hearing the appeal.

The case was adjourned and Mr McGuinness says neither he nor his lawyers heard from the court or the Director of Public Prosecutions in relation to the matter.

Covid-19

In early 2020 Covid-19 struck and many courts did not sit. He believed that the case was in hiatus.

Last April Mr McGuinness claims that “out of the blue” his solicitor received an email that the case had been heard in Dublin that day and had been adjourned for a week.

He claims that without any notification it appears that Judge McDonnell made a ruling against him in his appeal in December 2020, but nobody seems to have to informed him or his lawyers of this.

When the matter came back before a different judge of the Circuit Court Mr McGuinness claims his lawyer was informed Judge McDonnell had no further role in the matter.

His lawyers have sought to have the matter return before Judge McDonnell, but remain unsure about the judge’s availability.

He claims that in July and August he was arrested by the gardaí and charged with road traffic offences, including not having a driver’s licence.

He fears that without the intervention of the High Court he will be subject to further arrests by the gardaí.

Represented by Mr Toal, instructed by solicitor John Geary Mr McGuinness of Old Dublin Road, Newry, Co Down seeks an order quashing judge McDonnell’s purported decision to affirm his 2013 conviction.

Mr Toal said the action was being brought in a bid to “unravel what was happening” to his client’s appeal.

The action is brought on grounds including that Mr McGuinness believed he had a legitimate expectation that his appeal would be sent to the Court of Appeal by way of case stated before it would be determined.

It should also be set aside due to the respondents’ failure to act in accordance with natural and constitutional justice, it is argued.

Declarations

He also seeks declarations from the court including that any decision by the lower court to proceed to affirm the District Court in the absence of Mr McGuinness and his legal advisors amounted to a denial of his basic constitutional rights.

His judicial review action is the Circuit Court, the Director of Public Prosecutions, the Garda Commissioner and the Courts Services.

The matter came before Ms Justice Niamh Hyland, on an ex-parte basis, on Tuesday.

The judge directed that the application for permission to bring the challenge be made in the presence of the respondents. The matter was made returnable to a date in early September.

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