Introduction

This High Court judgment (Simons J.), delivered on 29 September 2025, addresses a bid to prohibit a criminal trial on grounds of prosecutorial delay where a central prosecution witness died after charges had been laid. The applicant (“the accused”), one of two co-accused facing multiple counts of theft, forgery, and using a false instrument under the Criminal Justice (Theft and Fraud Offences) Act 2001, argued that the death of the managing director of the car dealership (the alleged victim company) rendered a fair trial impossible and/or fatally undermined the prosecution’s ability to prove lack of consent—an essential element of theft.

The case arises from alleged conduct between April 2014 and June 2017 in which the accused, then a dealer at a car dealership, is said to have misappropriated profits on vehicles traded in by customers. The State’s theory includes allegations that sales contracts (SIMI Vehicle Order/Sales Contracts) were altered after the customer received their copy, and that traded-in vehicles were privately disposed of by the accused rather than through the dealership, at a profit to himself.

The managing director died in August 2023—three years after charges issued (September 2020). The accused maintained that the managing director “signed off on everything” and would have provided testimony supporting consent or, at least, undermining the prosecution’s case were he alive. The High Court considered whether such fairness issues, and the alleged consequences of delay, should be determined by the trial court or can be decided at the judicial review stage. The matter came before the court by way of a rolled-up (telescoped) leave and substantive hearing.

Notably, Simons J. also imposed reporting restrictions (anonymisation of the accused, co-accused, and dealership) to protect the integrity of the prospective jury trial while allowing reportage of the judgment’s substance.

Summary of the Judgment

• The High Court dismissed the substantive application to prohibit the criminal trial, holding that the issues raised are quintessentially for the trial court.
• Leave to seek judicial review was granted (rolled-up hearing), but relief was refused because the grounds, while arguable, did not meet the substantive threshold.
• Applying Director of Public Prosecutions v. C.C. [2019] IESC 94, the Court held that the proper forum to assess fairness in light of delay and the death of a witness is normally the trial court, save for clear-cut cases where potential unfairness will not be affected by trial developments.
• The accused failed to demonstrate the “real possibility” of losing an “obviously useful line of defence” by reason of the witness’s death; in fact, the deceased’s witness statement denied consent and would have assisted the prosecution.
• Whether there was culpable delay and whether the prosecution can prove absence of consent are matters for the trial court, which can direct an acquittal if proofs are not made out.
• Reporting restrictions were imposed to safeguard the integrity of the eventual jury trial, but they apply only to reporting of this judgment, not the criminal proceedings themselves.
• The Court observed that it is “unsatisfactory” that the trial has not yet occurred and urged that a trial date be fixed as soon as possible.

Detailed Analysis

Precedents Cited and Their Influence

The Court’s approach is anchored in the Supreme Court’s guidance in Director of Public Prosecutions v. C.C. [2019] IESC 94 (per O’Malley J. and O’Donnell J.). Two aspects of C.C. are central:

• The trial judge’s task: As summarised by O’Malley J., the trial judge must:
  • Assess whether the prosecution has adduced sufficient evidence to go to a jury.
  • Evaluate what evidence is missing and whether there is a legitimate, reasonable basis to infer that particular, potentially favourable defence evidence would likely have been available if tried earlier.
  • Consider the prosecution case “in the round.” If the State’s case is strong, the absent evidence must realistically be capable of influencing the jury despite that strength.
  • Apply the core test: has the accused lost the real possibility of an obviously useful line of defence?
• Forum and timing: As emphasised by O’Donnell J., fairness assessments are “best carried out at the trial” rather than in advance based on affidavit speculation. The judicial review court should only intervene in very clear-cut cases where potential unfairness is unaffected by how the trial evidence actually unfolds. Applicants must engage directly with the State’s case rather than advance hypothetical or tangential concerns.
• Robustness of the criminal process: O’Donnell J. also stated that trials are not unfair merely because a relevant witness is absent if the missing evidence is not an essential proof. The criminal process is expected to be robust enough to handle such difficulties unless their cumulative effect renders the trial impossible or unfair.

On reporting restrictions, the Court relied on Gilchrist v. Sunday Newspapers Ltd [2017] IESC 18, which recognises the courts’ common law power to calibrate publicity to protect fair trial rights while upholding the principle that justice is administered in public. Here, anonymisation allows publication of the judgment’s substance without risking prejudicial pre-trial publicity that could reach prospective jurors.

Legal Reasoning: Why the Trial Court Must Decide

The High Court framed two principal defence arguments and located both within the remit of the trial court:

1. Fair trial risk due to the death of the managing director:
   • The accused argued that he has been deprived of the chance to cross-examine the managing director to establish knowledge, approval, or consent; and to challenge motive and credibility.
   • Simons J. held that this contention requires fact-sensitive evaluation of (a) whether the managing director was the controlling mind and (b) how, concretely, his evidence would have been “obviously useful” to the defence. On the papers, both are disputed. A surviving director’s statement suggests that a “dealer principal” (the co-accused) had overall responsibility for sales and trade-in allowances, complicating the accused’s narrative of the managing director’s pervasive oversight.
   • The accused did not engage specifically with the prosecution evidence, including documentary allegations of sales contract alterations (e.g., removal of trade-in notations), and did not offer a plausible explanation of why the dealership would benefit from such alterations or why the managing director would approve them.
   • Crucially, the managing director’s recorded witness statement denied consent. If given in evidence, that would have supported the prosecution. While cross-examination might have theoretically undermined or changed that position, the Court emphasised that prohibition requires more than theoretical possibility; it requires a real possibility of losing an obviously useful defence line, grounded in the case as it stands.
2. Inability of the prosecution to prove absence of consent:
   • The accused claimed that the State can no longer prove the “without consent” element of theft. The Court held this is a sufficiency-of-evidence question for the trial judge, who can direct an acquittal if the prosecution’s proof fails (for example, after hearing surviving directors and considering admissible business records).

On prosecutorial delay, the Court found that determining culpability or blameworthiness is also a matter for trial, given:

• The scale and complexity of the investigation (over 100 witness statements).
• Extensive disclosure obligations and the disclosed reason for vacating a trial date (December 2023) to address disclosure issues.
• The limited affidavit record available on judicial review, which is not an adequate basis to reach conclusive findings on investigation pace or delay attribution.

In short, none of the applicant’s contentions presented the kind of “clear-cut” unfairness that could be resolved without the dynamic context of a trial. The trial court is better placed to:

• Hear oral evidence resolving contested factual issues (e.g., who was the controlling mind for sales and trade-ins).
• Evaluate the prosecution case “in the round” and gauge the real-world significance of the missing witness.
• Employ trial management tools (including the possibility of a directed acquittal) if proofs are insufficient.

Impact and Prospective Significance

The judgment powerfully reaffirms, and practically sharpens, existing Supreme Court guidance:

• Forum discipline in delay-based prohibition applications:
  • Most fairness challenges tied to missing witnesses and complex evidential inferences must be resolved at trial. Judicial review will remain an exceptional remedy, confined to cases where unfairness is genuinely clear-cut and insulated from trial developments.
• Evidential engagement burden on the defence:
  • Accused persons must engage directly with the prosecution case. Conclusory assertions that “management signed off on everything” will not suffice. Applicants must identify with specificity what admissible evidence is missing, how it would plausibly assist the defence, and why the absence creates a real possibility of losing an obviously useful defence line.
• Practical litigation strategy:
  • Defence teams considering prohibition applications should marshal concrete, case-specific reasons demonstrating how deceased or unavailable witnesses would likely have provided material assistance, supported by documents, contemporaneous records, or other witness accounts.
  • Prosecutors should continue to build robust documentary cases (including business records) and be prepared to explain investigative timelines and disclosure steps, especially in complex multi-witness cases.
• Substantive criminal law context (theft and consent):
  • The decision underscores the centrality of “consent” and “dishonesty” (defined in the 2001 Act as “without a claim of right made in good faith”) and highlights that corporate consent can be proved or disproved through multiple sources, not solely through a deceased managing director.
• Reporting and fair trial:
  • The tailored reporting restrictions exemplify how courts will protect the integrity of impending jury trials while preserving open justice by allowing publication of judgments with anonymisation where appropriate.
• Case management urgency:
  • The Court’s closing observation—that it is “unsatisfactory” the trial has not occurred over a decade after the first alleged events—signals a judicial expectation that complex fraud/theft prosecutions be actively managed to trial.

Complex Concepts Simplified

• Prohibition of a criminal trial (judicial review):
  An application asking the High Court to stop a trial before it happens because proceeding would be unfair (e.g., due to delay or lost evidence). It is exceptional and granted only where unfairness is clear and cannot be cured by trial processes.
• Rolled-up (telescoped) hearing:
  The court considers both whether to grant leave to apply for judicial review and the substantive merits at one hearing. Here, leave (low threshold of arguability) was granted, but relief was refused.
• “Real possibility of an obviously useful line of defence”:
  The key test from DPP v. C.C. An accused must show that, because of delay (e.g., death of a witness), they genuinely lost the chance to deploy an evidently valuable defence argument or evidence—not merely a speculative or marginal one.
• Trial court primacy:
  The trial judge is best placed to evaluate fairness, because they see and hear all the evidence, can assess credibility, and can tailor directions or even direct an acquittal where the prosecution case falls short.
• Directed acquittal:
  If, at the close of the prosecution case, there is insufficient evidence on an essential element (e.g., lack of consent), the trial judge can stop the case and direct a verdict of not guilty without sending the matter to the jury.
• Business records:
  Documents created in the ordinary course of business can, subject to statutory and evidential rules, be admitted at trial. Here, the prosecution may seek to admit SIMI sales contracts as business records to establish the content of transactions, with alleged alterations forming the basis of forgery/false instrument counts.
• “False instrument” (2001 Act):
  A document that is altered or made to appear genuine with intent to induce acceptance as genuine, thereby committing fraud-related offences under the Criminal Justice (Theft and Fraud Offences) Act 2001.
• Dishonesty and consent in theft:
  Theft requires appropriation of property without the owner’s consent and dishonestly. “Dishonestly” is defined as “without a claim of right made in good faith.” A belief that the owner consented or would have consented in the circumstances can be a defence.
• Reporting restrictions:
  Temporary court-imposed limits on reporting certain identifying details to protect the integrity of a forthcoming jury trial. Here, the substance of the judgment can be reported, but not names/locations identifying the accused, co-accused, or dealership, and the restriction expires after the criminal trial unless varied.

Conclusion

S v Director of Public Prosecutions [2025] IEHC 513 solidifies a disciplined approach to delay-based prohibition applications where a key witness has died. The judgment reaffirms that:

• Fair-trial assessments rooted in contested facts, the strength of the prosecution’s case, and the real significance of missing evidence belong to the trial court.
• Judicial review will intercede only in truly clear-cut cases where alleged unfairness is demonstrably independent of how the evidence unfolds at trial.
• Applicants must move beyond speculation and engage specifically with the prosecution case, demonstrating a real possibility that an obviously useful defence line has been lost.

The decision also exemplifies careful use of reporting restrictions to balance open justice with fair-trial rights and signals judicial impatience with protracted delays in complex fraud/theft prosecutions. For practitioners, the message is clear: build prohibition applications on concrete, case-specific prejudice that satisfies the “real possibility” threshold; otherwise, prepare to contest fairness, consent, and sufficiency of proof before the trial judge, who remains the principal guardian of fairness in criminal proceedings.

Orders: Leave granted; substantive relief refused; costs to be addressed on 14 October 2025.