High Court orders production of digital audio recording transcript to ensure fair judicial review of District Judge's conduct.
Sintesi Legislator
Generato dall'IAThe High Court granted the applicant's discovery application to produce a transcript of the digital audio recording from the District Court hearing. The applicant alleged unfair conduct by the District Judge during cross-examination, while the judge offered to provide an account but declined to give evidence. The court directed the production of the transcript as an exceptional measure necessary to ascertain the facts and ensure a fair resolution of the judicial review proceedings.
Regesto Legislator
Generato dall'IASummary Jurisdiction Act 1851; s. 10 of the Courts (Amendment) Act 2009: The High Court may order the production of digital audio recording transcripts in judicial review proceedings when the accuracy of the record is essential to determine the fairness of the lower court's conduct.
Parole chiave
Generato dall'IADisposizioni normative citate
Generato dall'IAGiurisprudenza citata
Generato dall'IADecisioni correlate
Generato dall'IATesto completo
Neutral Citation: [2013] IEHC 4
THE HIGH COURT
[2011 No. 1153 J.R.]
BETWEEN/
GERARD HUDSON
APPLICANT
AND
JUDGE ANTHONY HALPIN AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT of Mr. Justice Hogan delivered on 15th January, 2013
1. In these judicial review proceedings the applicant seeks to quash a conviction in respect of a breach of a place of safety order
imposed by the respondent District Judge. The applicant maintains – and the District Judge stoutly denies – that the judge interfered
with the cross-examination and otherwise conducted the hearing in an unfair manner. The issue which I am here required to consider
at this juncture is whether this Court can and should make an order for the production of the digital audio recording of the hearing
before the District Court following an application in that behalf by means of a discovery application brought on behalf of the applicant.
In these circumstances I propose to say as little as possible concerning the underlying dispute.
2. This discovery application raises again the age-old problem of bringing before this Court in judicial review proceedings the record of
what has happened in proceedings before either the District Court or the Circuit Court. This problem really dates back to the creation
of courts of summary jurisdiction, since before the days of electronic recording devices, a tendency emerged whereby such courts
recited at length in their record of proceedings all that had happened before them. But judicial review by certiorari led to a situation
whereby many criminal convictions of this kind were quashed for what was then judicially described as “lamentable and disgraceful
technicalities”. As Griffith L.J. put it in R. v. Crown Court, ex p. International Sporting Club Ltd. [1982] QB 304, 312, it had been
legislatively determined:-
“to put a stop to the over-formalistic approach of the lawyers which allowed the conviction by the lower courts to be
quashed for any defect in form in any of the documents that in the 17th and 18th centuries the Court of Queen’s Bench
required to be kept as part of the record of the inferior court. These included the charge, the evidence and reasons for
the conviction. The result was that many convictions were quashed for want of form rather than merit.”
3. This state of affairs led to legislative intervention by means of the Summary Jurisdiction Act 1848 (England and Wales) and
Summary Jurisdiction (Ireland) Act 1851, the effect of which was that “criminal convictions need be supported only by a very short
record, omitting the charge and the evidence and the reasoning which were required to be set out previously.” As Lord Sumner was
famously to explain in R. v. Nat Bell Liqours Ltd. [1922] 2 A.C. 128, 159, these legislative changes:-
“did not stint the jurisdiction of the Queen’s Bench, or alter the actual law of certiorari. What it did was to disarm its
exercise. The effect was not to make that which had been error, error no longer, but to remove nearly all opportunity for
its detection. The fact of the record ‘spoke’ no longer: it was the inscrutable face of the sphinx.”
4. This problem continued after the creation of the District Court and the Circuit Court by the Courts of Justice Act 1924, for the
problem of establishing what exactly transpired in a disputed court hearing in those courts continued unabated. While it is true that
technology had made great strides, until recently the opportunity for recording of sometimes lengthy court exchanges remained
haphazard and sporadic. This created its own problems given that sometimes parties made allegations regarding comments made by
individual judges – to which the judge in question understandably wished to respond by giving evidence in judicial review proceedings
– yet the Supreme Court has steadfastly cautioned against judges entering the forensic fray in this manner and exposing themselves
to possible cross-examination: see, e.g., O’Connor v. Carroll [1999] 2 I.R. 160, 166, per Murphy J.
5. It is only in recent times that this problem can be comprehensively addressed through the introduction of the digital audio recording
system, a comprehensive recording system which keeps an audio recording system of all that is said in all courts. While the digital
audio recording is operated by the Courts Service, the Courts Service has made it clear in a letter of 10th December 2012 from the
Chief Executive Officer supplied to this Court that the actual recording itself remains under the control of the presiding judge and that
the Courts Service will itself abide by any order which this Court might make in relation to the production of the recording.
6. Given that the proceedings effectively involve imputations against the District Judge, I directed that the applicant serve the
proceedings on the respondent judge. The judge has very helpfully supplied the Court with a detailed account and response, a copy
of which has also been made available to the parties. The judge has indicated that he has no objection to the production of the DAR
recording.
7. Given that the resolution of this factual issue is absolutely central to this case, it seems to me that it would be only just to direct
the production of the DAR recording. One must, of course, be mindful of the cost implications of this course of action – not least in an
age of austerity – so that a direction of this kind must be nonetheless be regarded as an exceptional measure. Nor could this
procedure be invoked for the purposes of returning to the ultra zealous approach of the English Queen’s Bench in the 16th and 17th
centuries. Yet, in a case such as the present one where the parties are agreed that an account of what happened in the District
Court is central to the fair resolution of the present case, then this Court must be prepared to give the direction that appropriate
record and transcript be prepared.
8. As Griffith L.J. said in his classic judgment in the International Sporting Club case ([1982] QB 304, 315):-
“But the courts must adapt their procedures to modern conditions. In the last century the facilities available for recording spoken
reasons were not comparable to those which exist today. Shorthand had only recently been invented and there was no electronic
recording apparatus with which many courts are now equipped. This court can now rely with confidence upon a transcript of the oral
judgment given by a lower court or tribunal as accurately setting out its reasons which may not have been the case 100 years ago.”
Conclusions
9. These comments of Griffiths L.J. are apt to describe the present state of affairs. It would, of course, be most undesirable for the
respondent judge to get personally involved in the proceedings by giving evidence, although his offer to do so is greatly appreciated.
Given, however, that this Court can confidently rely on the DAR system of recording and in view of the fact that an accurate account
of what transpired is essential to doing justice in the present case, it was for those reasons that I directed the production of a
transcript of the hearing which took place in the present case.