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1. This is an appeal from the judgment and order of the High Court (Carroll J. 4th October, 2001) whereby the Applicant was refused relief by way of judicial review. The facts appear clearly from the judgment of Carroll J. The Applicant, who is a member of the Aircorps, was tried on two public order offences (intoxication in a public place and threatening/abusive/insulting behaviour) on the 21st March, 2000. The allegations were hotly disputed and the Applicant alleged that he had been assaulted by a garda. A previous complaint of assault by a garda had been made in the local station.

2. The first-named Respondent heard the evidence and reserved his judgment for about two weeks. He then found the Applicant guilty. No reasoned judgment or analysis of the evidence was delivered. The solicitor who appeared for the Applicant on the occasion of the reserved judgment was not the solicitor who had defended him. A plea in mitigation was made and character evidence was called. The solicitor then suggested that rather than record a conviction the Respondent might consider requiring a payment of money into the poor box.

3. It should be added that a plea of this sort is often made in cases where the Defendant is a member of the Defence Forces. This is because, apparently, even a relatively small fine may imperil the Defendant’s continued acceptability as a member of the forces.

4. What happened immediately after this plea is described by a number of persons who filed affidavits on behalf of the Applicant. The solicitor then representing him, Mr. McGlynn, said:-

5. Provost Sergeant Ronald Palmer, who attended the District Court hearing in that capacity, recorded in his report:-

6. A Garda Superintendent who swore an affidavit on behalf of the Respondent simply said that:-

7. I am satisfied on the evidence, as the learned High Court Judge was, that a discussion along the lines summarised by Mr. McGlynn in his affidavit did indeed occur.

8. Mr. McGlynn says that he requested a brief adjournment and explained the effect of the foregoing conversion to the Applicant. The latter then spoke by telephone to his own solicitor Mr. O’Regan. He then instructed Mr. McGlynn that he should indicate to the learned District judge that the contemplated order would mean the end of the matters in dispute between the parties. The case was then adjourned to the 2nd May, 2000.

9. The matter was subsequently adjourned to the 6th June because the learned District judge was not sitting in the relevant court, and then again until the 4th July. In the mean time, according to the Applicant, he decided that he did not want to give the undertaking indicated on the basis that it was indeed his intention to institute proceedings for assault arising out of his encounter with the Gardaí. He said that when the learned Respondent first mentioned the possibility of such an undertaking:-

10. It appears that, having changed his mind in this manner, the Applicant sought relief by way of judicial review, essentially involving the prohibition of the first-named Respondent from proceeding further in the matter.

11. It thus appears that the District Court proceedings are now, so to speak, in a state of suspended animation the Applicant having been convicted but no sentence having been imposed.

12. On the hearing of the appeal, it was conceded on behalf of the Director of Public Prosecutions that the matter to which the learned District judge referred was an irrelevant consideration. That is, it is conceded that the question of whether or not the Applicant intended to take civil proceedings and/or to make some form of complaint of assault at the hands of the Gardaí was irrelevant to the question of the proper sentence to be imposed on the two offences of which he had been convicted. But this irrelevancy, the Director contended, did not amount to evidence of bias. The remark in question was a misguided one and one which never should have been made, the Director conceded ; it did not however permit of the inference that the hearing leading to the conviction had been biased, or that the learned Respondent would be biased in imposing sentence.

13. The Applicant, on the other hand, contended that it followed from the admission that the remark was irrelevant, that there had been a flawed hearing. It was submitted that no reasonable person could hear a remark so plainly made in the interests of one party to the proceedings, the Gardaí, without concluding that the Applicant had had no chance of a fair trial on the allegations brought against him by those same gardaí.

14. In reply the Director emphasised that the remarks had not been entirely spontaneous but had been elicited in response to the solicitors plea that a specially lenient course of action should be taken. The remarks were open to the interpretation that the learned District judge simply wished to bring closure to the incident between the Applicant and the Gardaí. The Director also emphasised that no objection, much less an allegation of bias, had been made by or on behalf of the Applicant in the immediate aftermath of the words spoken.

15. In my view the question of whether or not the Applicant intended to sue for assault is wholly irrelevant relevant to the question of the appropriate sentence in the District Court proceedings against him. Nor, in my opinion, does the fact that the Applicant, like all other members of the Defence Forces in the same position, draws attention to the particular consequences of a relatively lenient sentence for a member of the Defence Forces, in some way render the prospect of civil proceedings against the Gardaí relevant. It is unfortunate, and it was inappropriate, that matter was mentioned at all.

16. But these conclusions do not lead to the consequence that the Court should now interfere by way of judicial review.

17. The Supreme Court commented:-

18. Although Judicial Review was found to be available in the very unusual circumstances of that case, which had not progressed beyond the opening and in which no evidence had been heard, I believe the foregoing extracts correctly express the principle generally applicable.

19. Apart from the foregoing, which suggests that the present application is premature, there is the question of whether it is possible to obtain judicial review in relation to a criminal trial on a qui timet basis. The learned trial judge thought that it was not possible to do so, and I am in agreement with this. In Clune and O‘Dare and Ors. v. DPP [1981] ILRM 17 Gannon J. decided that neither an injunction against the DPP nor an order of prohibition against a judge of the District Court was available on that basis. In relation to the latter he said:-

20. I would hold that this approach is equally applicable to an order sought to prevent the continuance of, rather than the commencement of, summary trial.

21. It follows that, although I regard the words attributed to the learned District Judge as unfortunate and irrelevant, they would not at this stage of the proceedings - and they might not at any time - justify the granting of relief by way of judicial review. The matter should accordingly be remitted to the District Court, there to proceed in accordance with law. It is to be presumed that the learned Respondent will then confine himself to matters relevant to the charges before the Court in imposing sentence and in any observations he may make on the matter.