A trained barrister has persuaded the High Court he received a “fundamentally unfair” hearing before a “hostile” District Court judge when charged with allegedly holding a mobile phone while driving.
Mr Justice Garrett Simons agreed to overturn the conviction and €120 fine imposed on Bartholomew Anthony O’Neill in late 2023.
The judge, having reviewed a recording of the District Court proceedings, said a trial judge must “remain above the fray”, but in this case he “descended into the arena” by taking over the cross-examination of Mr O’Neill.
The District Court judge insulted and exhibited “hostility” towards the accused, suspended the hearing for no apparent reason and “banished” him to the back of the courtroom for a period, said Mr Justice Simons.
He noted the trial judge also objected to Mr O’Neill (52) drinking from a water bottle containing ice cubes due to the noise of the ice rattling, and told him he would have to leave the courtroom if he wished to continue drinking.
The trial judge also failed to provide reasons for refusing to refer to the High Court two legal queries Mr O’Neill raised regarding interpretation of section 3 of the 2006 Road Traffic Act, under which he was being prosecuted, said Mr Justice Simons.
The refusal must be viewed in the context of the judge having earlier “embarked upon a hostile cross-examination” of Mr O’Neill, he said.
“Any objective observer, informed of all of the foregoing, would be left with the impression that the trial judge had not approached the hearing with an open mind,” he added.
Mr Justice Simons said Mr O’Neill wanted the District Court judge to use a mechanism of referring a “consultative case” to the High Court for interpretation of section 3 of the 2006 Act, which makes it illegal for a person to “hold” a “mobile phone” while driving.
The District Court was obliged to consider Mr O’Neill’s request for a referral of his interpretation to the High Court and can only refuse to refer if it considers the request to be frivolous, said Mr Justice Simons.
Section 3 states that the term “mobile phone” does not include a “hands-free device”, which is in turn defined as a “device designed so that when used in conjunction with a mobile phone there is no need for the user to hold the phone by hand”.
Mr Justice Simons said Mr O’Neill admitted before the District Court that he had been holding a phone at the time and had received a call via bluetooth headphones. He claims that when using his phone with his headphones, it becomes a hands-free device that he can lawfully hold.
The judge said his argument appears to be that a driver is permitted to hold a phone while driving provided it is not actually necessary to hold it.
Mr Justice Simons said the judge’s interventions during the hearing were “so extensive” that they prevented Mr O’Neill from developing his legal submissions in full.
The trial judge “signally failed” to engage with the request for legal questions to be referred to the High Court, Mr Justice Simons added. He then went on to insult, asking “sarcastically” whether Mr O’Neill, a qualified barrister, had gone to any classes or received any lectures, the judge said.
“In truth, it was the trial judge, not the accused, who exhibited ignorance of the procedural requirements governing a request to refer a consultative case stated to the High Court,” Mr Justice Simons said, as he agreed to quash the conviction.
He said he will hear from Mr O’Neill and the Director of Public Prosecutions (DPP) later this month on whether he should remit the case back to the District Court for fresh consideration.
- Sign up for push alerts and have the best news, analysis and comment delivered directly to your phone
- Join The Irish Times on WhatsApp and stay up to date
- Listen to our Inside Politics podcast for the best political chat and analysis
