Weak Evidence, Not No Evidence: E.B. v DPP [2025] IEHC 658 and the Limits of Judicial Review of District Court Convictions

1. Introduction

E.B. v Director of Public Prosecutions [2025] IEHC 658 is a High Court decision that restates in clear and practical terms the narrow scope for using judicial review to challenge criminal convictions from the District Court, particularly where an appeal to the Circuit Court was available but not taken.

The applicant had been convicted in the District Court of breaching a safety order under s.33(1) of the Domestic Violence Act 2018, arising from sending a birthday card and present to his daughter via her school. He sought an order of certiorari in the High Court to quash that conviction, arguing that there had been no evidence of the alleged breach on the date specified in the charge sheet, and therefore that the trial was not a “trial in due course of law”.

Gillane J dismissed the application. While accepting that judicial review can, in “extreme” cases, be used to quash District Court convictions where there is a complete absence of evidence on a necessary element of the offence, the Court held that this was not such a case. There was some evidence from which the trial judge could infer the date of the offending conduct, even if that evidence might be regarded as weak. In those circumstances, and given that a full de novo appeal to the Circuit Court had been available, judicial review was not appropriate.

The judgment is significant because it:

Clarifies once again the distinction between lawfulness (the domain of judicial review) and correctness (the domain of appeal) in criminal proceedings.
Reinforces that only in “extreme” cases of complete absence of evidence on a necessary matter will judicial review be available to quash a conviction.
Adopts and applies the “weak evidence versus no evidence” distinction as a practical threshold for intervention.
Illustrates how circumstantial evidence and inference can satisfy the evidential burden for elements such as the date of an offence.

2. Factual and Procedural Background

2.1 The Safety Order and the Alleged Breach

A safety order was made in the District Court on 18 September 2020 on the application of the applicant’s former partner, Ms A. The order protected both Ms A and the couple’s daughter, who was included as a dependent person. Under s.33(1) of the Domestic Violence Act 2018, a person who breaches a safety order commits a criminal offence.

The prosecution alleged that the applicant breached this order on 31 March 2022 by communicating with his daughter. The particulars on the charge sheet stated that he:

“on the 31/03/2022 at [the child’s school], contravened safety order made at [the District Court] on the 18/09/2020 in that you did communicate with dependent person [the child] by sending a birthday card and a birthday present to her school in contravention of the safety order.”

The “communication” consisted of a wrapped package delivered to the school. Inside was:

A birthday card addressed to a “special daughter”, wishing her a happy birthday and giving the applicant’s mobile phone number, inviting her to call him if ever needed.
A letter dated 28 March, signed in the applicant’s name, again including his phone number, addressed to the child by name, encouraging her to call “whenever you want” and referring to her birthday.

The package did not reach the child at school. Instead, the school principal, Ms B, contacted Ms A, who collected the package on 1 April 2022. Ms A later gave the package to the child, unaware that it contained the card and letter, and the child became upset on reading them.

Critically, by the time the case came before the District Court, it was conceded by the applicant in the High Court proceedings that he had delivered the package to the school. The key issue was the timing of that delivery: was there evidence that it occurred on 31 March 2022, as charged?

2.2 The District Court Trial

On 11 January 2023, the applicant was tried in the District Court and, after a contested hearing, convicted and given a two-month suspended sentence, suspended for 12 months.

Three prosecution witnesses had originally been intended:

Ms A (the complainant and mother),
Ms B (the school principal),
Garda C (the investigating Garda).

However, due to the practicalities of a busy list, the matter was initially called in the morning when the applicant’s solicitor was not present. It was then put to second call and not reached again until 3 p.m. By that time, Ms B had left to return to work and was no longer available. No application for an adjournment was made; the prosecution proceeded with just Ms A and Garda C.

Defence counsel raised a hearsay objection, particularly in relation to any statements Ms B might be said to have made to Ms A. The District Judge showed awareness of the hearsay issue and cautioned the Garda about it. There was also an indication that he distinguished between inadmissible hearsay and admissible “reported speech” that explained background (e.g. why Ms A attended the school).

Evidence included:

Ms A’s evidence that:
- She received a phone call from the school and collected the package from Ms B on 1 April 2022.
- She was not at the school on 31 March 2022.
- The package, in her understanding, came from the applicant and was for the child’s birthday.
An exchange in cross-examination in which Ms A stated that the applicant “dropped it [the package] to her [Ms B]”.
Evidence from Garda C that the child’s birthday was on a particular date (redacted in the published judgment), close in time to the 31 March date.
The letter inside the package, dated 28 March 2022, and the card, both referring to the child’s birthday and containing personal details.

There was no statement or interview from the applicant forming part of the prosecution evidence.

At the end of the prosecution case, the defence applied for a direction (a “no case to answer” submission), arguing:

There was no evidence of any communication on 31 March 2022.
Only Ms B could have given admissible direct evidence of the date and circumstances of the delivery to the school.
Accordingly, the actus reus of delivering the package to Ms B on 31 March 2022 had not been established by admissible evidence.

The District Judge refused the application, stating:

“No, I’ll refuse your application for direction. I have the evidence of the prima facie here. It was a clear communication from [the applicant] to his daughter, in contravention of the safety order.”

When asked for reasons, he explained that he had:

“…the letter and the card here. I’ve heard evidence from [the child’s] mother that she received the box from her school and that the box came from [the applicant], the defendant, and it was given to [the child], it was for [the child’s] use. It was a present for her birthday.”

Defence counsel then indicated that he would go no further; the applicant did not give evidence and no defence witnesses were called. The District Judge convicted and imposed the suspended sentence.

2.3 The Judicial Review Proceedings

The applicant did not appeal to the Circuit Court. Instead, he sought judicial review in the High Court, seeking an order of certiorari to quash the conviction.

Key procedural steps included:

Leave to apply for judicial review was sought on 31 March 2023.
Because of listing and resource issues, leave was ultimately granted on 18 September 2023.
There were some irregularities in the issuing and timing of the notice of motion, which were later regularised, and an extension of time was granted if necessary.
The suspended sentence bond expired on 11 January 2024, but the parties accepted that the matter was not moot because the conviction itself remained extant.

The core ground advanced was that there was no evidence on which the District Court could lawfully find that the breach occurred on 31 March 2022 as charged. The applicant contended that, without admissible evidence from Ms B, the case lacked a necessary evidential foundation and that the conviction therefore infringed his right to a trial in due course of law.

The DPP resisted the application, arguing in substance that:

The complaint concerned the sufficiency of the evidence, not its complete absence.
A full de novo appeal to the Circuit Court was available and should have been pursued instead.
All decisions of the District Judge were within jurisdiction and the trial process was fair.

The High Court heard the matter on 16 October 2025 and delivered its judgment on 28 November 2025.

3. Summary of the High Court Judgment

Gillane J dismissed the application for judicial review and refused certiorari. The main holdings can be summarised as follows:

Nature of judicial review: Judicial review in criminal matters is concerned with the lawfulness of a decision, not its correctness. Errors of evaluation of evidence, save in “extreme” cases, are for appeal, not judicial review.
No “extreme case” of complete absence of evidence: The applicant’s complaint was framed as an absence of evidence on the date of the offence. However, there was some evidence from which the District Judge could infer the date (the letter’s internal date; the child’s birthday; Ms B’s presence at school on 31 March; Ms A’s collection of the package on 1 April). This was, at most, a case of weak evidence, not no evidence.
Availability of appeal: A full de novo appeal to the Circuit Court was available to the applicant, and that was the appropriate route for challenging the sufficiency or weight of the evidence. Judicial review is not to be used as a substitute appeal.
Trial conducted in accordance with law: The District Court hearing was found to have been conducted with “impeccable fairness”. Tactical choices by the defence (e.g. proceeding without Ms B, not appealing, ceasing submissions after the refusal of a direction) did not transform the case into one suitable for judicial review.
Result and costs: The application was dismissed. Applying s.169 of the Legal Services Regulation Act 2015, the Court held that the respondent was entitled to costs, with a two-week stay to allow the applicant to seek an alternative costs order if so advised.

4. Detailed Legal Analysis

4.1 Core Legal Issues

Two central legal issues framed the High Court’s decision:

Whether the alleged lack of evidence that the offence occurred on 31 March 2022 rendered the District Court conviction unlawful (and thus amenable to judicial review) or merely potentially incorrect (and thus a matter for appeal).
Whether, given the availability of a de novo appeal to the Circuit Court, it was appropriate for the High Court to entertain a judicial review challenge based on alleged insufficiency of evidence.

The applicant accepted that:

The specific date on the charge was not, in a strict legal sense, “material” in the way that a date might be in, for example, defilement or tax default offences.
It would have been open to the prosecution to seek to amend the date or to frame the charge using a date range (e.g. “on a date unknown between…”).

Nonetheless, he argued that where a particular date has been chosen and pleaded, the prosecution must establish that particular on admissible evidence. The failure to call Ms B, the only direct witness to the delivery on 31 March, was said to leave an evidential void that no amount of inference could fill.

The respondent’s answer, accepted by the Court, was that the challenge was really to how much weight the District Judge could legitimately place on the circumstantial evidence, not to the existence of evidence. That type of complaint goes to correctness, not lawfulness.

4.2 Precedents Cited and Their Influence

4.2.1 Sweeney v Fahy [2014] IESC 50

Sweeney v Fahy is the leading Supreme Court authority on the proper boundaries of judicial review in criminal proceedings. Clarke J (as he then was), relied upon extensively by Gillane J, articulated several key principles:

Lawfulness vs correctness: Judicial review focuses on whether a decision is in accordance with law, not whether it is factually or legally correct. Some errors will render a decision unlawful; others, even if serious, will not but must be addressed on appeal.
“Error within jurisdiction” and “extreme” cases: Where a court has jurisdiction to hear and determine a case, many errors it might make in assessing the evidence are “errors within jurisdiction” and do not open the door to judicial review. Only in “extreme” situations—such as when there is a complete absence of evidence on a necessary matter—might such an error make the decision unlawful.
Availability of appeal: That judicial review is not a substitute for appeal was underscored. If an appeal is available and suitable to address the complaint, judicial review should not be invoked.

Gillane J quoted several passages from Sweeney v Fahy:

At para 3.6: judicial review is “fundamentally concerned with the lawfulness of decisions” not their correctness; the distinction between unlawfulness and incorrectness is “fundamental”.
At para 3.7–3.8: there are “very significant limitations” on the superior courts’ jurisdiction to quash decisions on the basis of insufficient evidence as to the merits, as opposed to absence of lawful power or complete absence of evidence on a necessary matter. Only in “extreme” cases can judicial review intervene in relation to evidential sufficiency.
At para 3.16: summarising that (a) judicial review is about lawfulness, (b) only fundamental errors may render a decision unlawful when jurisdiction exists, and (c) issues concerning the adequacy (rather than absence) of evidence will not ground judicial review.

This framework is the backbone of the judgment in E.B. v DPP. Gillane J applies Sweeney v Fahy to conclude that, since:

The District Court had jurisdiction over the applicant and the offence; and
There was at least some admissible evidence from which key inferences could be drawn,

any complaint about the sufficiency or strength of that evidence fell within the realm of correctness, for which appeal is the proper remedy.

4.2.2 Sweeney v Brophy [1993] 2 I.R. 202

Clarke J in Sweeney v Fahy quoted Hederman J from Sweeney v Brophy, and Gillane J in turn adopted that quotation. Hederman J held that:

“certiorari is an appropriate remedy to quash … [a decision] where [a court] acts apparently within jurisdiction but where the proceedings are so fundamentally flawed as to deprive an accused of a trial in due course of law. I take this opportunity of emphasising that certiorari is not appropriate to a routine mishap which may befall any trial; the correct remedy in that circumstance is by way of appeal.”

This passage underlines the idea of a “fundamentally flawed” process as a precondition for judicial review in the criminal context. In E.B. v DPP, Gillane J finds that:

The District Court proceedings were not fundamentally flawed.
The non-availability of Ms B, and the tactical decision to proceed without seeking adjournment, were “the sort of thing that happens as a matter of routine in a busy District Court list”.
Such a situation is exactly the kind of “routine mishap” for which appeal, not certiorari, is the appropriate remedy.

4.2.3 E.R. v DPP [2019] IESC 86

Charleton J in E.R. v DPP emphasised that judicial review in criminal matters:

“is about process, jurisdiction and adherence to a basic level of sound procedures. It is not a reanalysis [of the correctness of the decision].”

Gillane J explicitly cites this and cautions against “reanalysis” or “combing the evidence” as though sitting on appeal. This is directly relevant to the applicant’s argument, which, if accepted, would have required the High Court to:

Re-weigh the evidence heard by the District Judge, and
Decide whether that evidence was sufficiently persuasive on the date of the offence.

By adopting Charleton J’s warning, the High Court reinforces that it must not let judicial review become a “backdoor appeal”.

4.2.4 Zadecki v DPP [2022] IEHC 602

Zadecki was a High Court decision by Phelan J concerning a conviction for possession of stolen property. There was a stark evidential issue: no direct evidence established that the items were in fact stolen. The defence argued that this absence meant there was “no case to answer”.

Key aspects, as summarised by Gillane J:

The prosecuting Garda appeared to concede the lack of direct proof that the items were stolen.
The District Judge nonetheless convicted, reasoning that he was entitled to infer theft from the accused’s suspicious inability to identify the supposed owner of the property.
Phelan J held that, although the evidence might be weak, it was not non-existent: the suspicious answer allowed an inference of theft.
She coined or adopted the formulation that this was “a case of weak evidence as opposed to no evidence” and therefore not amenable to judicial review, given the availability of appeal.

In E.B. v DPP, Gillane J:

Relies heavily on this “weak evidence vs no evidence” distinction.
Applies the same reasoning: because there was inferential evidence regarding the date of the offence, the High Court should not interfere by way of judicial review.
Quotes with approval Phelan J’s statement that “it is well established that a District Judge is quite entitled to make a wrong decision on the law, once he retains jurisdiction to make that decision and has not erred in a manner which deprives him of jurisdiction.”

Thus, Zadecki provides the immediate template for dealing with evidential challenges in judicial review, and E.B. v DPP confirms and extends its approach to the context of alleged breaches of a safety order.

4.2.5 R v Galbraith [1981] 1 WLR 1039

Although an English case, Galbraith is routinely applied in Irish criminal practice to govern applications for a direction of “no case to answer”. The core test is:

If, taking the prosecution evidence at its highest, no jury (or judge as fact-finder) properly directed could convict, the judge must stop the case.
But if, on one reasonably possible view of the evidence, a jury could convict, issues of weakness or reliability are for the fact-finder and the case should proceed.

Gillane J notes that Galbraith, though formulated for jury trials, applies equally to summary trials. In the District Court here, the refusal of the direction meant the judge considered there to be a case to answer. Once that threshold is crossed on admissible evidence, the High Court will not revisit the evaluation of that evidence in judicial review.

4.2.6 Woolmington v DPP [1935] AC 462

The applicant cited Woolmington, a seminal authority on the burden of proof in criminal trials (“the golden thread” that it is for the prosecution to prove guilt). Gillane J found it of limited assistance:

Woolmington concerned directions to a jury about burden and standard of proof.
There was no dispute in this case as to where the burden of proof lay.
The real issue was one of evidential sufficiency, not burden-shifting or presumptions.

The Court therefore did not regard Woolmington as materially influencing the outcome.

4.3 The Court’s Legal Reasoning Applied to the Facts

4.3.1 Jurisdiction and Fairness of the District Court Hearing

Gillane J emphasised that this case did not involve a collateral attack on the jurisdiction of the District Court. The District Judge plainly had jurisdiction:

Over the person of the accused (properly before the court); and
Over the subject-matter (an alleged s.33 Domestic Violence Act offence).

The High Court carefully reviewed the District Court transcript and concluded:

The hearing was conducted “with impeccable fairness”.
The District Judge was alive to evidential issues such as hearsay.
The main complaint related not to how the trial was conducted procedurally, but to the judge’s assessment of the evidence at the close of the prosecution case.

The failure to call Ms B, and the decision to proceed without seeking an adjournment, were characterised as examples of the kind of ordinary logistical issues that arise daily in busy District Court lists. They did not amount to “fundamental flaw” or denial of a trial in due course of law.

4.3.2 Evidence on the Date of the Offence: Weak vs No Evidence

The core factual issue was whether there was any evidence on which the District Judge could lawfully find that the package was delivered on or about 31 March 2022, as charged.

The High Court held that the following strands of evidence were available:

The letter inside the package was dated 28 March 2022.
The child’s birthday was on a date very close to 31 March (as given in evidence by Garda C).
It was uncontroverted that Ms B was present in school on 31 March 2022.
Ms A received a phone call from the school and collected the package on 1 April 2022.
It was conceded (by the time of the High Court proceedings) that the applicant had delivered the package to the school.

From this, the District Judge could reasonably infer that:

The delivery must have been recent to the date of collection.
Given the letter’s date (28 March) and the proximity to the child’s birthday, delivery on or about 31 March was a plausible inference.
Even if the precise date was not conclusively proved, the evidence allowed a rational conclusion that the offence occurred as charged.

The High Court accepted that another fact-finder might have taken a different view of the weight of this evidence. However, that possibility does not convert the situation into one of “no evidence”. The test is not whether the High Court would have reached the same conclusion, but whether there was any admissible evidential basis at all on a necessary element.

Accordingly, this was “a case of weak evidence as opposed to no evidence” (para 95), squarely within the logic of Zadecki and Sweeney v Fahy.

4.3.3 Galbraith and the Refusal of a Direction

The defence’s application for a direction at the close of the prosecution case invited the District Judge to apply a Galbraith-style test: whether, taking the prosecution case at its highest, there was any evidence on which the court could lawfully convict.

By refusing that application and finding there was a prima facie case, the District Judge effectively held that:

The evidence, taken at its highest, could support a conviction.
Issues of strength and weight of that evidence were for him as the trier of fact to determine after hearing any defence evidence (which, in the event, was not called).

Gillane J held that, when the prosecution evidence is such that a properly directed fact-finder could convict, it is within the fact-finder’s jurisdiction to allow the case to proceed and ultimately to convict. That decision, even if arguable or even if wrong, does not generally give rise to unlawfulness. It is a classic example of an “error within jurisdiction” which is correctable, if at all, by appeal.

The High Court also noted that, after the direction was refused:

Defence counsel simply said, “I’ll not go any further Judge.”
No further submission on the weight of the evidence was made.
The applicant chose not to give evidence or call any witnesses.

The trial therefore concluded swiftly, and the District Judge convicted on the basis of the prosecution case as it stood. These tactical decisions underscored that the grievance about the conviction was, at root, about the District Judge’s assessment of the sufficiency of the evidence rather than about procedural unfairness.

4.3.4 Availability of Appeal and the Function of Judicial Review

A critical element of the Court’s reasoning was the availability of a full de novo appeal to the Circuit Court. Such an appeal would have allowed:

A complete rehearing of the evidence.
Fresh evaluation of credibility, admissibility, and sufficiency of the evidence.
Potential correction of any error in the District Judge’s assessment of the facts.

Relying on Sweeney v Fahy and Sweeney v Brophy, the High Court treated the availability of this appeal as a strong reason not to exercise its judicial review jurisdiction unless the applicant had been deprived of a trial in due course of law at first instance.

Because:

The process in the District Court was lawful and fair;
Any error related to the weight and sufficiency of circumstantial evidence on the date of the offence; and
A straightforward appellate route existed,

judicial review was held to be an inappropriate avenue for challenge.

4.3.5 Procedural Irregularities and Candour at the Leave Stage

The respondent had criticised aspects of how the applicant’s case was presented at the leave stage, particularly:

A submission that “only one witness was called by the DPP, namely the applicant’s former partner,” which might be read as overlooking the Garda’s evidence.
The absence, at leave stage, of detail about what had occurred when the case was first called in the District Court and why Ms B was unavailable.

However, Gillane J was satisfied that:

There was no deliberate lack of candour.
The solicitor’s affidavit at leave accurately stated that only one civilian witness (Ms A) was called, which was correct.
What transpired between first and second call did not necessarily appear obviously relevant at the leave stage.
Once opposition papers were served, the issue was fully ventilated.

The Court therefore did not treat these matters as undermining the applicant’s entitlement to seek relief. Nevertheless, it ultimately held that no relief was warranted on the merits.

4.4 The Treatment of Evidential Challenges in Judicial Review

E.B. v DPP reinforces a line of authority that:

Challenges to evidential sufficiency (e.g. “there was not enough evidence to convict”) belong on appeal.
Judicial review is reserved for cases where there is either:
- Complete absence of evidence on an essential element (a true “no evidence” case); or
- Some other fundamental flaw in process or jurisdiction that deprives the accused of a trial in accordance with law.

By describing this case as one of “weak evidence as opposed to no evidence”, the High Court draws a clear, practically oriented line:

“No evidence” means no admissible factual basis at all on a necessary ingredient of the offence. In such extreme situations, the resulting conviction may be unlawful and susceptible to certiorari.
“Weak evidence” means that evidence exists, but a party or a reviewing court might regard it as insufficiently persuasive or tenuous. This is a matter of correctness, and must be addressed (if at all) by appeal, not by judicial review.

For practitioners, the case is a warning that recasting an argument about the weakness of evidence as a “no evidence” argument will not easily succeed, particularly where the High Court can identify any inferential or circumstantial basis for the District Judge’s conclusions.

4.5 Discretionary Aspects and Costs

Having found that the applicant had not established an entitlement to relief, Gillane J moved to the question of costs under s.169 of the Legal Services Regulation Act 2015. The section enshrines the general principle that costs follow the event, subject to the court’s discretion.

Applying that principle, the Court held:

The respondent (DPP) was entitled to costs of the proceedings.
An order to that effect would be made but stayed for two weeks, giving the applicant an opportunity to argue for an alternative order if he wished.

The approach to costs is orthodox but important in signalling that unsuccessful applicants in criminal judicial review may face costs liability, a factor that should be weighed when deciding between appeal and judicial review.

5. Impact and Significance

5.1 Implications for Accused Persons and Criminal Practitioners

The judgment has clear practical consequences:

Choice of remedy is critical. Where an accused believes the District Court misinterpreted or over-valued the evidence, a de novo appeal to the Circuit Court is the appropriate remedy. Judicial review is highly unlikely to succeed except in extreme circumstances.
“No evidence” arguments face a high threshold. Practitioners must distinguish rigorously between:
- a genuine absence of any admissible evidence on an essential ingredient; and
- a situation where evidence exists but may be weak, circumstantial, or open to challenge.
Only the former category will normally justify judicial review.
Tactical decisions have consequences. The defence in this case:
- Chose not to seek an adjournment when Ms B became unavailable.
- Accepted, for tactical or other reasons, that the applicant had delivered the package to the school.
- Opted not to call evidence or pursue an appeal after conviction.
These decisions cannot later be reversed by way of judicial review.

5.2 Implications for District Court Judges

For District Court judges, the decision is reassuring:

It confirms that reasonable inferences drawn from circumstantial evidence will generally be respected and are not easily amenable to collateral attack via judicial review.
It reinforces that a refusal of a direction where there is some evidence on each ingredient of the offence will almost never be quashed on judicial review, even if the appellate courts might ultimately disagree with the evaluation.
It underscores the importance of conducting proceedings fairly and being attentive to evidential rules—but indicates that routine practical difficulties (like witness availability in busy lists) do not automatically generate a ground for judicial review.

5.3 Domestic Violence Context: Communication and Protective Orders

While the main legal development concerns judicial review, the case also sits within the broader context of domestic violence law:

It illustrates how “communication” in breach of a safety order can occur through indirect means, such as sending a package to a child’s school with messages encouraging contact, even if the child does not receive it at the time.
The applicant ultimately conceded that he delivered the package, effectively conceding the core factual basis of the breach; the dispute became about timing rather than the nature of the conduct.

Although the High Court did not have to resolve any contested issue about the scope of “communication” under the Domestic Violence Act 2018, future litigants may nonetheless point to this case as an example of the kind of indirect contact that can constitute a breach.

5.4 Systemic and Procedural Observations

The judgment also reflects, in passing, on systemic realities:

Busy District Court lists and witness availability issues are treated as normal features of the system, not as automatic grounds for alleging unfairness.
The High Court noted with some concern the delay between the 20-minute District Court hearing in January 2023 and the High Court judicial review in October 2025, underscoring how using judicial review instead of appeal can protract criminal litigation.

The underlying message is that the criminal justice system is better served, in typical evidential sufficiency disputes, by utilising the quicker and more straightforward appeal mechanism rather than invoking the exceptional remedy of judicial review.

6. Complex Concepts Simplified

6.1 Judicial Review vs Appeal

Appeal: A higher court reconsiders the case, often with power to re-evaluate the facts, the evidence, and the legal conclusions. In the District Court context, a Circuit Court appeal is usually a full rehearing (de novo).
Judicial review: A higher court examines whether the original decision-maker acted lawfully—that is, within its powers, following fair procedures, and without fundamental errors. It does not normally re-examine the merits or correctness of the decision.

In this case, the applicant tried to use judicial review where an appeal would normally be the proper route because he was complaining about the sufficiency and evaluation of the evidence.

6.2 Certiorari

Certiorari is the court order sought in judicial review to quash (set aside) a decision of a lower court or tribunal. If granted, it nullifies the decision as unlawful. In E.B. v DPP, the applicant sought certiorari to quash his District Court conviction; the High Court refused to grant it.

6.3 Actus Reus

“Actus reus” is Latin for the “guilty act” – the physical element of an offence (as opposed to the mental element, or “mens rea”). Here, the actus reus of the s.33 offence was the communication with the dependent person in breach of a safety order, alleged to have occurred by sending the package to the child’s school on 31 March 2022.

6.4 Hearsay and Reported Speech

Hearsay is evidence where a witness recounts statements made by another person, which are offered to prove the truth of what was said. It is generally inadmissible in criminal trials because the original speaker cannot be cross-examined.
Reported speech (non-hearsay use): Sometimes a statement is not offered for its truth but simply to explain why someone took a particular action (e.g. “I went to the school because I got a phone call saying there was a package”). This kind of use may be admissible because the truth of the statement is not at issue.

In the District Court, the judge appeared to understand this distinction, allowing some references to what Ms B said to Ms A as background, while seeking to exclude hearsay offered as proof that the applicant had delivered the package.

6.5 Galbraith Direction / “No Case to Answer”

A Galbraith direction is a ruling by a judge that there is no case to answer at the close of the prosecution case. It should be granted if, taking the prosecution evidence at its highest, there is no evidence on which a reasonable fact-finder could convict.

If the judge refuses such a direction, it means there is at least some evidence on each element of the offence that could, in principle, sustain a conviction. The case then usually proceeds to the defence evidence, and the fact-finder assesses the credibility and weight of the evidence as a whole.

6.6 Prima Facie Case

A “prima facie case” means that, on the face of it, there is enough evidence that, if believed, could support a conviction. It does not mean the judge must convict, only that the case is strong enough to proceed beyond the prosecution stage.

6.7 Mootness

A case is “moot” if the underlying issue has ceased to have any practical significance—typically because the order or sanction being challenged has expired or been superseded.

Here, although the suspended sentence bond expired in January 2024, the conviction remained on the applicant’s record. The parties accepted that this continuing consequence meant the case was not strictly moot; the High Court agreed and dealt with the merits.

6.8 Costs and s.169 Legal Services Regulation Act 2015

Section 169 LSRA 2015 sets out the general rule that the unsuccessful party in civil proceedings will normally pay the successful party’s costs, unless the court orders otherwise. Judicial review proceedings are civil in nature, even when they relate to criminal matters.

In E.B. v DPP, the applicant lost and, applying s.169, the Court ordered him to pay the DPP’s costs, subject to a short stay. This emphasises that unsuccessful criminal judicial review applicants risk substantial costs orders.

7. Critical Evaluation

From a doctrinal standpoint, E.B. v DPP is a careful and orthodox application of existing Supreme Court authority. It does not radically change the law, but it does:

Consolidate the “extreme case / no evidence” threshold for judicial review in criminal matters.
Embed the “weak evidence versus no evidence” distinction as a decisive factor in determining whether a conviction can be quashed on judicial review.
Demonstrate deference by the High Court to the fact-finding functions of the District Court where jurisdiction is established and fair procedures are followed.

There is room, of course, for debate at the margins:

Some might argue that the evidential link to 31 March 2022 was tenuous and that the refusal to adjourn when a key witness was unavailable risked unfairness. However, the applicant’s subsequent tactical choices (not appealing, not calling evidence, not seeking adjournment) significantly weaken that critique.
Others might question whether the “extreme” threshold for judicial review is too restrictive, particularly in lower courts where legal representation or resources may be limited. But that policy balance has been struck by the Supreme Court, and Gillane J is faithfully applying it.

On balance, the judgment provides a clear and practical roadmap for practitioners:

If the problem is about how evidence was weighed or what inferences were drawn, go to the Circuit Court on appeal.
Reserve judicial review for true structural or jurisdictional problems or for cases where an essential element is supported by literally no evidence at all.

8. Conclusion

E.B. v DPP [2025] IEHC 658 is an important reaffirmation of the limited role of judicial review in criminal proceedings from the District Court. The High Court held that:

Judicial review is concerned with lawfulness, not correctness.
An “extreme” case of complete absence of evidence on a necessary matter may justify quashing a conviction on judicial review, but this case did not meet that threshold.
The presence of some inferential evidence on the date of the offence meant this was a case of weak evidence, not no evidence.
Given the availability of a full de novo appeal to the Circuit Court, judicial review was inappropriate for the applicant’s complaint about evidential sufficiency.

The decision will likely be cited for the proposition encapsulated by its effective title: weak evidence is not no evidence. It underscores that where a District Court trial has been conducted fairly and within jurisdiction, and where the evidential record contains at least some basis for each element of the offence, any challenge to the conviction should be pursued by appeal, not by judicial review.