Marion Kane v Judge of the Circuit Court - Judicial Review Appeal

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  Kane v Judge Of The Circuit Court (Approved) [2026] IECA 54 (26 March 2026)

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[2026] IECA 54 | | |
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THE COURT OF APPEAL

Court of Appeal Record No: 2023/27

??????????????????????????????????????????????????????????????????????????????????????? High Court Record No.: 2022/736JR

Neutral Citation: [2026] IECA 54 ?

Butler J.

O'Moore J.

Owens J.

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Between/

Marion kane

APPELLANT

V

judge of the circuit court

RESPONDENT

JUDGMENT of the Court delivered by Ms. Justice Butler on the 26 th of March 2026

Introduction

1. This is a written judgment expanding on the ex tempore ruling delivered in court on 23 rd March 2026.? This judgment deals with Ms. Kane's (also "the appellant") appeal from the Order and ruling of the High Court (Meenan J.) of 16 th January 2023 refusing her leave to apply for judicial review. As indicated in court, we disagree in part with the decision of the High Court and have granted Ms. Kane leave to apply for judicial review on a limited ground which contends that she should have been allowed an adjournment to prepare for her appeal as a litigant-in-person rather than being forced to deal with the appeal herself after she had discharged her lawyers.? ?

2. The proceedings originated in the District Court, where the appellant was convicted of two public order offences and ordered to pay fines in respect of those offences. The appellant then appealed to the Circuit Court, which upheld the convictions and affirmed the orders of the District Court. The appellant sought leave to apply for judicial review from the High Court on the grounds that the Circuit Court judge did not adhere to fair procedures and failed to give reasons for refusing the appeal. The High Court refused leave finding the appellant had not put forward any arguable grounds.

3. The appellant now appeals the High Court refusal on similar grounds, namely a lack of fair procedures and failure to give reasons.? It is relevant to the case made by the appellant both that she is fully blind and that shortly before the hearing of the appeal in the Circuit Court commenced she discharged the solicitor and counsel that had been provided to her on legal aid.

Background

4. On 27 th September 2019 the appellant was arrested under s.24 of the Criminal Justice (Public Order) Act 1994 for offences under s.6 (threatening, abusive or insulting behaviour in public) and s.8 (failure to comply with direction of member of Garda S?och?na) of that Act. The offences occurred outside a residential premises occupied by the appellant's daughter and grandchild.

5. The matter came before the District Court on 22 nd September 2020, and the appellant was convicted of the offences and ordered to pay a fine of ?150 in respect of each offence, a total of ?300. The appellant appealed the District Court Order to the Circuit Court which was then heard on 29 th June 2022.

6. At beginning of the Circuit Court hearing the solicitor and counsel who were acting on behalf of the appellant applied to come off record on the basis that the appellant no longer had confidence in them acting on her behalf.? This was granted by the trial judge.? The appellant then sought to adjourn the hearing on the basis that she was not ready to proceed.? This was refused on the grounds that there had been a number of previous adjournments.? The number of and reasons for the previous adjournments - which form a significant part of the application Ms. Kane now makes - were not discussed further save that Ms. Kane asserted that they were not her fault.

7. The hearing then commenced and one of the arresting Garda?, Garda Brosnan, gave evidence that on the day of the offences they received a call to go to an address which is the home of the appellant's daughter. The caller's mother was said to be " causing annoyance " outside the caller's house. When the Garda? arrived at the address, the appellant was observed on the street outside, i.e. a public place, banging her walking cane on the railings of the house. On approaching her, the appellant " became very aggressive and agitated " towards the Garda? and " started shouting at us to f** off* ". After attempting to reason with the appellant, directing her to leave the area and offering to order her a taxi, matters escalated culminating in the appellant throwing herself on the ground " swinging her walking cane... and shouting at us to f** off several times that she'd have our jobs* (sic)".?

8. The appellant cross-examined Garda Brosnan.? The cross-examination was difficult, not least because the appellant put statements that were not in the form of questions to the witness and put multiple questions rolled up together without affording the witness a chance to answer any of them. The trial judge intervened on a number of occasions to allow the witness to answer.?

9. The appellant objected to the fact that only one of the two Garda? who attended at the scene was called to give evidence.? The court was told that the other Garda was unavailable. As this Garda gave evidence in the District Court, Ms. Kane was of the view that she had been convicted on the basis of his evidence and therefore had a right to cross-examine him on her appeal. ?The appellant then gave evidence on her own behalf and was cross-examined by counsel for the prosecution.

10. The Circuit Court judge affirmed the ruling of the District Court, holding that the appellant's version of events, which included that the Garda? never identified themselves and had assaulted the appellant, was " fanciful, frivolous and absolutely incredible ".

11. The appellant sought leave to apply for an order of certiorari to quash the Circuit Court Order and declarations that the respondent failed to consider fair procedures by not allowing the appellant the right to be heard; the right to reply; the right to cross-examine; the right to adjourn and that the respondent failed to give reasons for refusing the appeal. Additionally, the appellant contended that she was treated unfairly by reason of her disability.

12. The High Court was satisfied that the appellant had not reached the appropriate threshold under which leave could be granted. Meenan J., having looked at and considered the transcript of the Circuit Court hearing, did not see that there were any arguable grounds for contending that the decision ought to be quashed and found that the appellant was heard at every stage of the proceedings; afforded correctly an opportunity to cross-examine witnesses and to give evidence herself. The High Court also found that the respondent did in fact give reasons for the refusal of the appeal, which were set out clearly in the transcript of the hearing, namely that the prosecution had proved the elements of the offences beyond a reasonable doubt and accepted the arresting Garda?'s version of events. Meenan J. also held that it is " manifestly clear from the transcript " that the judge ** " had due regard to [the appellant's] disability ".

Grounds of Appeal

13. The appellant appeals the refusal of the High Court on several grounds, which are summarised as follows: the High Court failed to consider the application of the right to fair procedures under Article 40.3 of the Constitution; erred in striking out the application as an abuse of process; failed to consider the application of the right to fair procedures under Article 13 UNCRPD (United Nations Convention on the Rights of Persons with Disabilities); failed to give adequate reasons for refusing leave and failed to consider the proportionality of dismissing the appeal. Some of the grounds of appeal make no sense and do not seem to bear any relation to the appellant's case.? The High Court Judge did not strike out the appellant's proceedings as an abuse of process nor did he reach any conclusion that the litigation was being pursued for an improper purpose. Leave to apply for judicial review was refused on the basis that the appropriate threshold for the grant of leave, i.e. arguable grounds, had not been reached by the appellant.

Threshold for the Grant of Leave

14. The threshold for the grant of leave to apply for judicial review under Order 84 RSC is well established.? Finlay C.J. set it out as follows in G. v. D.P.P [1994] 1 I.R. 374 at pp.377-378:

" An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:... (b) That the facts averred to in the affidavit would be sufficient, if proved, to support a stateable ?ground for the form of relief sought by way of judicial review. (c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief he seeks... " .

Thus, save for those cases governed by a separate statutory standard, to obtain leave an applicant must establish that there are arguable grounds for the grant of the relief which he or she seeks. Further, the case law establishes that this is not a particularly high threshold and does not require that the applicant establish any particular likelihood of success in the substantive proceedings.

15. The threshold of ' arguable grounds' has both a legal and a factual component. It is not sufficient to establish a legal proposition in vacuo, there must be a factual basis for saying that the application of that legal proposition in the particular circumstances would justify the grant of relief to the applicant. This is of some significance in this case. The appellant relies on grounds asserting a general right to a fair trial, the right to fair procedures under Article 40.3 of the Constitution and Article 6 of the European Convention on Human Rights.? She also makes many points regarding the rights of a person with a disability to access the courts and to be treated in a non-discriminatory fashion under the UNCRPD.?

16. Very little of this is likely to be disputed. However, to be entitled to relief it is not sufficient merely to establish the existence of a right. ?An applicant has to establish on the facts deposed to in his or her affidavit that there are grounds for contending that the right in question was breached.? The appellant has not done this in respect of many of the grounds which she advances.? Alternatively, the version of the facts to which she has deposed in her affidavit is inconsistent with what is recorded in the transcript as having occurred at the Circuit Court hearing.? Therefore, for the most part the High Court judge was correct in concluding that the appellant had not established arguable grounds for the relief she was seeking.

Refusal of Adjournment

17. Most of the appellant's oral submission on this appeal focused on the refusal of an adjournment so that she could prepare to present her case as a litigant-in-person.? There were two main strands to this argument. The first concerned the reasons she was dissatisfied with the lawyers who had been assigned to her on legal aid and whom she discharged on the morning of the hearing. These lawyers are not parties to the proceedings and consequently I do not propose to set out the nature of the complaints made by the appellant against them.

18. It may be sufficient to observe that the appellant's barrister made an application for herself and her instructing solicitor to come off record at the commencement of the hearing. In the course of that application she stated: " Ms. Kane has informed myself and Mr B. this morning that she felt she was forced into taking a solicitor and that she has a right to represent herself and that she would prefer to proceed and represent herself in this appeal and that she doesn't have confidence in us to do it.". The appellant confirmed to the court that she did not have confidence in her solicitor and did not dispute the contention that she felt forced into accepting the solicitor who had been provided to her on legal aid. She did not make any other complaint and certainly did not make the complaints she now makes against her lawyers.

19. The second strand of the appellant's argument concerns the disadvantage which she contends followed when she was forced to proceed with her case. She told the respondent she needed time to prepare and found it intimidating " to be rushed into this ". She also advised the respondent that she was blind and that she was accompanied by an assistant who had to leave in order to attend another client. She explained that she could not be left on her own in the court building. In exchanges with this court on her appeal, it appears that the assistant did not fact abandon Ms. Kane in the court building so as to attend her next appointment. Nonetheless, it must have been stressful for Ms. Kane to apprehend that she might be left on her own in the courthouse unable to find her way out of the building. ?The adjournment application was brief, and the appellant feels that she was not afforded a proper opportunity to explain her position to the court.? The respondent did not make any enquiry of the appellant as to how her disability impacted on her ability to present her case nor as to the role of her assistant or how the absence of that person might impact the appellant in the presentation of her case.

20. The respondent refused the adjournment on the basis that the appeal had been adjourned several times and that Ms. Kane had had ample opportunity to prepare. In her application for judicial review the appellant contends that the previous adjournments were due to the death of her brother and the fact that her daughter, apparently a witness, had caught covid and was restricted by the public health measures then in place from attending court.? Whilst the appellant did indicate to the Circuit Court that the previous adjournments were not her fault, these reasons were not explained to the respondent during the application for an adjournment. The transcript does not support the contention that the appellant attempted to raise these issues but was not permitted by the respondent to do so. The appellant clearly feels that she was not afforded the opportunity to develop her point and the text of the transcript of the exchange between the judge and the appellant relating to this issue provides some support for this contention. The appellant mentioned the death of her brother but did so in the context of his being a witness to injuries allegedly sustained by her and not in connection with the adjournment of an earlier hearing date.? There was no mention of her daughter catching covid.

21. Thus, the complaint against the respondent is based, in part, on grounds which were not brought the respondent's attention at the time she refused the adjournment. The respondent may well have had reason to be sceptical of the appellant's application for an adjournment following immediately on the discharge of her legal team. Nonetheless, the respondent was aware of the appellant's disability, the fact that her assistant needed to leave and, of course, that the appellant was now a litigant-in-person responsible for the presentation of her own case. I am of the view that the arguable grounds threshold has been reached on the issue of whether it was a breach of fair procedures to refuse an adjournment to allow the appellant further time to prepare her case in those circumstances. ?Whilst a litigant who chooses to proceed in person is not entitled to preferential treatment over litigants who are legally represented, it is certainly arguable that a litigant-in-person who also has a disability may require greater accommodations than would otherwise be the case to ensure that their right of access to the courts is fully vindicated.

22. As noted above, this is the sole ground upon which the appellant will be granted leave to apply for judicial review. It is proposed to address the other grounds raised by her briefly below.

Fair Trial Rights

23. It is well established that a defendant in criminal proceedings is entitled to cross- examine witnesses for the prosecution, to call witnesses on their own behalf and to make submissions to the court. The appellant alleges that all of these rights were breached in her case. From a perusal of the transcript of the Circuit Court hearing this does not appear to be correct.

24. It is difficult at times to understand the factual basis, if any, for the complaints the appellant makes. Insofar as she complains that she was not allowed to cross-examine prosecution witnesses, she clearly was allowed to cross-examine the only witness called on behalf of the prosecution, namely Garda Brosnan.? She complains that she could not hear Garda Brosnan.? However each time she brought that to the court's attention, the respondent directed that the witness speak up and repeat the evidence which had just been given.?

25. The appellant was not threatened with contempt as she alleges when she complained that she could not hear the Garda witness. She was given a warning for repeatedly interrupting at a point where the respondent was trying to get her to ask single questions which the witness would then be permitted to answer.? The respondent intervened on a number of occasions during the course of the cross-examination. However, those interventions were not designed to prevent the appellant asking questions. Rather, they were intended to ensure that the witness had an opportunity to answer the questions which had been asked.

26. It may be that the complaint of a refusal to permit cross-examination relates to the absence of a Garda witness who had been present and who gave evidence at the District Court hearing.? This Garda was one of two who attended the scene on the night of the alleged offences and the partner of the Garda who did give evidence.

27. The appellant appears to misunderstand the nature of an appeal from the District Court to the Circuit Court. Such an appeal is by way of full re-hearing and the evidence given before the District Court is of limited, if any, relevance in the fresh hearing before the Circuit Court. The prosecution is not obliged to call all or any of the witnesses who gave evidence in the District Court. Of course, the onus of proof remains on the prosecution and a failure to call a key witness may result in the prosecution being unable to discharge that onus to the requisite standard, i.e. beyond a reasonable doubt.

28. The extent to which a witness who gave evidence in the District Court is an essential witness on the appeal before the Circuit Court will vary depending on the circumstances of the case and what other witnesses are called to give evidence. In general, there is no obligation on the prosecution to call a witness simply because that witness was called in the court below. There is no requirement for or entitlement of a defendant to challenge the evidence of a person who has not in fact given evidence at the hearing and therefore whose evidence is not being relied on by the prosecution.? Consequently, the respondent was entirely correct in the explanation she gave to the appellant on this issue. ?

29. In her affidavit the appellant states that when questioned by the respondent as to the reasons for the absence of this Garda witness, counsel for the DPP said he would ring the station " to see why the guard did not turn up ".? This is not consistent with what is recorded in the transcript.? Rather, an issue was raised by the appellant as to her treatment whilst in custody in the Garda station. The member-in-charge, who was responsible for her as a prisoner in the Garda station, was not present because the prosecution was not on notice that the appellant was going to raise issues concerning her custody. The member-in-charge had not given evidence in the District Court.? Counsel for the DPP indicated he would phone Garda station to see if the relevant witness (i.e. the member-in-charge) was available. There was no suggestion that he would phone the Garda station to secure the attendance of the second Garda who attended at the scene and who had given evidence in the District Court.

30. In her Statement of Grounds the appellant complains that she was not permitted to hand in a typed document with different bullet points which she had prepared to make sure that she would not forget any of her main points. The appellant expressly pleads that " The respondent would not take the applicant's document ". ?There is an inherent inconsistency in this argument.? The appellant claims that she needed an adjournment to prepare her appeal, having fallen out with and discharged her lawyers on the morning of the hearing.? In those circumstances it is very difficult to understand how she had a typed document with her main arguments in bullet point form prepared and ready to hand in to the trial judge.

31. Leaving aside this problematic inconsistency, the transcript indicates that no application was made to hand in any such document.? There is an early exchange where the appellant seemed to say that she would like the respondent to look at something.? The respondent asked twice what the appellant wanted to hand in but instead of replying or handing in the document, the appellant sought an adjournment.? No further reference was made to whatever the appellant was referring to.? At a later point, the appellant handed in correspondence from a Garda based in Dublin which the respondent accepted.? She also handed in photographs after it was confirmed that the DPP did not require formal proof of them.? There is simply no factual basis for this complaint, and all of the evidence suggests that, on the contrary, the respondent was open to the receipt of any evidence the appellant was in a position to produce.

32. The appellant gave evidence on her own behalf.? That evidence covers four uninterrupted pages of the transcript.? She was then cross-examined by counsel for the DPP and was permitted to give lengthy answers.? There is no basis for the complaint that the appellant was not permitted to make submissions or that she was not heard.

33. The appellant complains that the respondent did not give reasons for her decision.? This is manifestly incorrect.? The transcript records that the respondent gave a reasoned decision as follows:

" So in my view the prosecution had proved every element of the offence beyond reasonable doubt to this Court. The offences have been made out, albeit it has been on the evidence of one of the two arresting guards, Garda Brosnan. I accept her version of events. I find your version of events, Ms Kane, fanciful, frivolous and absolutely incredible. I don't accept for one minute that An Garda S?och?na did not identify themselves. I do not accept for one minute that they would have behaved in the manner that you've alleged before this court. I do not accept that they would have assaulted you and manhandled you in the manner in which you're alleging. I accept that you were banging your cane on the railings. I accept that you threatened their jobs and you told them to f** off when they arrived tried to arrest you. I accept the version that Garda Brosnan has come [sic] to this court. And to be perfectly frank, your version is completely and utterly incredible. And I'm very sorry about that. You seem to have this thing that the guards are trying to be biased and to make a victim of you or to try and... get you convicted. I don't accept that's the case. So the elements of the offence have been made out. I'm convicting you of the offences.* " **

The appellant may not have liked the respondent's decision but there is simply no basis for the contention that she failed to give reasons as to why the appeal was dismissed. The respondent explained her conclusions with reference to the evidence which she had just heard in a manner which was perfectly ample, clear and appropriate for a decision on a summary conviction. Ultimately the case came down to two different accounts of the events which occurred on 27 th September 2019, and the respondent did not believe the appellant's account.

34. Finally, the appellant makes a number of complaints to the effect that the trial judge was biased, discriminated against her and failed to vindicate her right of access to justice under Article 13 of the UNCRPD.? Having read the transcript in detail, I am satisfied that there is absolutely no merit in any of these suggestions.? The appellant had been provided with legal aid for a solicitor and counsel for the purposes of her appeal.? The respondent cannot be blamed for the appellant's decision to discharge the legal representation which had been provided for her at public expense. Although the appellant makes complaints about the accessibility of the evidence against her, this was a summary criminal prosecution in which the only evidence was oral testimony delivered in court on the day of the hearing. The respondent remained civil and courteous throughout the hearing of this appeal notwithstanding the considerable difficulties posed by the appellant's conduct of the proceedings as a litigant-in-person.

Conclusions

35. In the circumstances the appellant will be granted leave to apply for judicial review for an order of certiorari to quash the Order of the Cork Circuit Court of 29 th June 2022 (record number 2019/189815) convicting her of two public order offences and remitting the matter for further determination to Cork Circuit Court. The sole ground upon which the appellant will be permitted to pursue that relief is that the respondent erred in law and/or in fact and/or in the exercise of her discretion in refusing an adjournment to the appellant in circumstances where she had discharged her legal representatives and, as a person with a disability, was intending to represent herself and needed additional time to prepare for the appeal and that the refusal of an adjournment in the circumstances violated the appellant's right of access to the courts as a person with a disability in breach of Article 40.3 of the constitution and/or Article 6 of the ECHR and/or Article 13 of the UNCRPD.

36. As this was an ex parte application for leave to apply for judicial review, the costs of the application and of the appeal (if any) will be reserved to the determination of the substantive proceedings.

37. My colleagues O'Moore J. and Owens J. have read this judgment in advance of its delivery and indicated their agreement with it.

Result:     Appeal allowed.

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