Judicial Review Is Not a Shortcut to Halt Pending Prosecutions: High Court Reaffirms Exceptional Nature of Prohibition and Routes Wrongful-Arrest Grievances to Plenary Actions

Decision commented on: Harford v Commissioner of An Garda Síochána, [2025] IEHC 476 (High Court, Egan J., 26 August 2025)

Note on citation: Although the header line refers to “Green v Personal Insolvency Acts 2012–2021,” the body of the judgment clearly identifies the proceedings as Cillian Harford v Commissioner of An Garda Síochána with the neutral citation [2025] IEHC 476. The commentary below addresses the case as presented in the judgment text (Harford).

Introduction

This case arises from a late-night public-order incident near the Luas Line bridge opposite George’s Dock, Dublin 1, during which a Garda cordon was extended following a fire. The applicant, Mr. Cillian Harford, entered the cordon to retrieve his bicycle and later retained a piece of crime scene tape as a “souvenir.” He was arrested, searched, and detained at Store Street Garda Station before being released on bail. He now faces charges under the Public Order Act 1994 and, in relation to the tape, under the Criminal Justice (Theft and Fraud Offences) Act 2001.

Mr. Harford sought leave to apply for judicial review against the Commissioner of An Garda Síochána, seeking (i) declarations that his arrest was unlawful and his rights violated, (ii) orders of certiorari/prohibition to prevent his prosecution, (iii) compensation for emotional distress, and (iv) costs under Article 40.4 of the Constitution. He also advanced an ex parte motion seeking declarations on access to the courts, a waiver of court fees, and an order to preserve CCTV and bodycam footage.

The High Court (Egan J.) refused leave, holding that the application disclosed no stateable or arguable grounds for judicial review, that judicial review during the currency of criminal proceedings is only available in wholly exceptional cases (which were not present), and that any wrongful arrest/false imprisonment claim must be litigated in a plenary tort action rather than by judicial review.

Summary of the Judgment

• Leave refused: The applicant failed to meet the leave threshold under G v DPP [1994] 1 IR 374: no stateable ground or arguable case for relief by judicial review was disclosed (paras 14, 17, 26).
• Prohibition is exceptional: Stopping a criminal prosecution by way of prohibition is only appropriate in exceptional circumstances where there is an unavoidable risk of an unfair trial that cannot be cured by the trial judge (paras 12, 15). No such risk was demonstrated.
• Judicial review not available mid-prosecution save in wholly exceptional cases: Courts are slow to entertain judicial review during pending criminal proceedings, absent compelling interests of justice. None arose here (para 18).
• JR targets decision-making process, not facts or merits: This case is fact-heavy (whether a direction was given; whether the applicant stayed within the cordon), and such matters belong in the District Court at trial, not in judicial review (paras 16, 21–24).
• Alternative remedies exist: Any claim of wrongful arrest/false imprisonment must be pursued by plenary proceedings seeking damages; this provides an adequate alternative remedy (paras 20, 23, 25).
• Court fees and Article 40.4 issues: The court observed that fee waiver only arises if leave is granted (para 7), which it was not; and the applicant’s attempt to invoke Article 40.4 to retrospectively examine arrest and detention was not entertained within this JR context (paras 4, 7–9, 26).

Analysis

1) Precedents and Authorities Cited

The judgment relies on well-settled Irish administrative-law principles governing judicial review of criminal processes, referencing:

• G v Director of Public Prosecutions [1994] 1 IR 374 (para 14): the leading authority on the leave threshold, requiring the applicant to show on a prima facie basis that:
  • (a) facts would, if proved, support a stateable ground;
  • (b) an arguable case in law exists for the relief; and
  • (c) judicial review is the only effective or the more appropriate remedy compared with any alternative.
• Order 84 of the Rules of the Superior Courts (para 13): mandates clarity in pleaded grounds and frames the procedural gateway for JR.

While the court did not list further case citations, it reaffirmed orthodox principles that:

• Prohibition of a criminal prosecution is an exceptional remedy (paras 12, 15).
• Judicial review examines the lawfulness of decision-making processes, not the merits of factual disputes (para 16).
• Judicial review should not intrude upon the criminal trial process unless a real and unavoidable risk of unfairness exists that cannot be remedied by the trial judge (para 12).
• Judicial review during the currency of criminal proceedings is permitted only in wholly exceptional cases (para 18).

Against that settled backdrop, Egan J. applied longstanding jurisprudence rather than creating novel doctrine. The value of the decision lies in its crisp restatement and application to a practical scenario involving public-order policing, alleged non-compliance with a Garda direction, and an attempt to deploy judicial review at an early stage.

2) The Court’s Legal Reasoning

Egan J.’s reasoning unfolds logically from the threshold inquiry at leave, through the nature of the relief sought (prohibition), to the identification of adequate alternative routes and the character of the applicant’s claims.

1. Focus on the relief sought (prohibition) and its exceptional nature (paras 11–12, 15):
   • Stopping a prosecution via prohibition requires demonstration of a real, unavoidable risk of an unfair trial.
   • The court underscored the primary duty of the trial judge to secure a fair trial, implying that ordinary evidential disputes will be managed in the District Court, not short-circuited via JR.
2. Leave test under G v DPP not satisfied (paras 14, 17):
   • No stateable ground and no arguable case disclosed. The applicant’s core complaint—that no direction was given before he was charged—raises a factual contest unsuitable for JR.
   • The court saw nothing in the materials to justify the extraordinary step of prohibition at this early stage.
3. Judicial review during pending criminal proceedings is tightly constrained (para 18):
   • Save in wholly exceptional circumstances (not present), the High Court will not intervene while a prosecution is ongoing.
4. JR targets process, not merits (para 16, applied at paras 21–24):
   • Whether a Garda direction was given, and whether the applicant remained inside or outside the cordon, are merits-based factual disputes to be decided on oral evidence in the District Court.
5. Alternative remedies defeat JR (paras 20, 23, 25):
   • If the applicant alleges false imprisonment or wrongful arrest, his remedy is a plenary tort action for damages.
   • Given the availability of the trial process and plenary proceedings, judicial review is neither the only effective nor the more appropriate remedy (para 14(c)).
6. Collateral matters: Article 40.4 and fee waiver (paras 4–9, 7, 26):
   • The applicant invoked Article 40.4 (habeas corpus) to invite an inquiry into arrest/detention and to secure preservation of evidence. The judgment proceeds on the JR axis and does not entertain this as a standalone habeas corpus application—especially as the applicant was released.
   • The request for a fee waiver was rendered moot by the refusal of leave, as the issue would arise only if the application had been permitted to proceed (para 7).

3) Impact and Significance

This decision is significant not because it innovates, but because it reasserts and clarifies—at a practical level—how, and crucially when, judicial review may be sought in the criminal process:

• Clear message to would-be applicants: Judicial review is not a vehicle to ventilate disputed facts about arrest, compliance with Garda directions, or possession of property (here, crime scene tape). Those issues will be tried in the ordinary way in the District Court, with the trial judge safeguarding fairness.
• Proper channeling of wrongful-arrest grievances: Claims of false imprisonment must be litigated in a plenary action seeking damages, not via judicial review. This preserves the trial on viva voce evidence that such tort claims require.
• Preservation of the trial court’s role: The High Court’s refusal to intervene mid-stream respects the principle that the criminal courts are the primary forum for resolving disputed facts and ensuring fair trials.
• Practical guidance on collateral requests: Efforts to use JR to procure orders for preservation of CCTV/bodycam material or to waive court fees are unlikely to gain traction at leave where the underlying JR does not pass the threshold. Such requests should be pursued, where appropriate, through the criminal process (e.g., disclosure applications) or ordinary civil avenues.
• Continuity with established doctrine: The decision strengthens the consistent line of authority that prohibition is a last resort, reserved for truly exceptional situations in which no trial-directed remedy can avert unfairness.

Complex Concepts Simplified

• Judicial Review (JR): A public law remedy reviewing the lawfulness of decision-making processes by public bodies. JR does not determine disputed facts or guilt/innocence. It is not an appeal on the merits.
• Leave to Apply for JR: A screening stage. The applicant must show a stateable ground, an arguable case in law, and that JR is the only effective or more appropriate remedy than alternatives. This is the G v DPP test.
• Order of Prohibition: An exceptional remedy stopping a criminal prosecution before trial, granted only if there is a real, unavoidable risk of unfairness that cannot be managed by the trial judge.
• Alternative Remedies: If other legal routes (e.g., trial, appeal, plenary tort action) can address the complaint, JR will generally be refused.
• Plenary Action for False Imprisonment: A civil lawsuit seeking damages for wrongful arrest/detention, tried on oral evidence. It is the correct vehicle for such claims, not JR.
• Article 40.4 (Habeas Corpus): A constitutional procedure aimed at immediate judicial review of ongoing detention. It is not a retrospective forum for determining whether an arrest previously effected was lawful when the person is no longer detained.
• District Court’s Role: The trial court where public-order prosecutions are heard. It decides factual disputes on evidence and ensures fairness through rulings and directions.

Applying the Principles to the Case

The applicant’s central factual contention—that he was never given a direction to leave before being charged with a public order offence—goes to the heart of the merits and turns on testimony from the Gardaí and the applicant. The High Court properly held that:

• Such issues must be resolved in the District Court via oral evidence (paras 21–22).
• JR is procedurally and substantively unsuitable for this kind of factual adjudication (paras 16, 24).
• Even if there were concerns about the arrest, the correct legal route is a civil action for false imprisonment (paras 20, 23), not public law JR.
• Given the adequacy of these alternative avenues, the third limb of the leave test also fails (para 25, read with para 14(c)).

Practical Guidance for Future Cases

• For defendants in criminal proceedings:
  • Raise factual disputes at trial; seek rulings from the District Court judge as necessary to protect fair-trial rights.
  • If alleging wrongful arrest/false imprisonment, consider a separate plenary action for damages.
  • Seek disclosure/preservation of relevant evidence (e.g., CCTV/bodycam) through the criminal process, data-access mechanisms, or ordinary civil procedures rather than via JR at leave.
• For public authorities (An Garda Síochána):
  • This decision underscores judicial reluctance to halt prosecutions at interlocutory JR stage absent exceptional unfairness.
  • Factual allegations about directions, cordons, and arrest circumstances will generally be tested at trial rather than through JR affidavits.
• For practitioners:
  • Calibrate the forum to the grievance: due-process complaints affecting trial fairness may justify JR only where the unfairness is unavoidable at trial; otherwise, use trial motions and appeals.
  • For tortious arrest/detention complaints, prefer a plenary action with discovery and oral evidence.
  • Be precise at leave: plead clear, stateable grounds supported by affidavit facts and identify why JR is the only effective route.

Conclusion

Harford v Commissioner of An Garda Síochána [2025] IEHC 476 is a succinct but authoritative reaffirmation of core public-law constraints:

• Judicial review is not a forum for fact-finding or for pre-empting the criminal trial; it polices process, not merits.
• Prohibition of a pending prosecution is exceptional, available only where an unavoidable unfairness cannot be cured by the trial judge.
• Disputes about Garda directions, arrest circumstances, and similar facts belong in the District Court; wrongful-arrest claims belong in plenary tort proceedings.
• Collateral requests (fee waivers, evidence-preservation orders) do not arise when leave is refused and, in any event, should typically be pursued via appropriate criminal or civil procedures.

The judgment’s principal contribution is to guide litigants—particularly self-represented applicants—back to the correct procedural pathways, preserving the integrity of the criminal trial process while keeping the door open to plenary redress where private law rights have been infringed. In doing so, it strengthens the predictable, disciplined deployment of judicial review in the criminal justice system.