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Bowes v DPP, [2003] 3 IR 25; [2003] IESC 9, was an Irish Supreme Court case which concerned the duty of An Garda Síochána to preserve relevant evidence. The case is significant in that it provides us with an example of an instance in which the Supreme Court is willing to negate this duty.

Background
The applicant, Mr James Bowes, on the 3rd of April 2000, was found to be driving a car with a substantial quantity of heroin located in the boot. The Gardaí took possession of the car and carried out a forensic examination which allegedly found the applicant’s fingerprints on a number of items in the trunk of the car. The car was destroyed by the Gardai roughly a year later. Twenty months after proceedings commenced against the applicant, and just days before the date fixed for his trial, Mr Bowes sought access to the vehicle in question for the purpose of a technical examination.

In the High Court
The applicant sought an injunction restraining further prosecution for the of the charges before the Dublin Circuit Criminal Court. Justice Andrias O’Caoimh held that while the vehicle should not have been disposed of by the Gardaí, although he conceded that this action was partially negated by the fact a forensic analysis had been carried out on the vehicle before it was destroyed. Moreover, it was held that Bowes had not been deprived of any evidence which may go towards his innocence. The High Court refused to grant the relief sought.

Holding of the Supreme Court
At the Supreme Court, the case was dealt with along with another case, McGrath v DPP. In that case, the applicant was charged with dangerous driving causing the death of a motorcyclist. Upon requesting to have the motorcycle examined, the defendant was informed that it had been sold to a dealer and taken apart for parts, and therefore could not be found. In the judgment, the Supreme Court looked at three main points of contrast between the case of Bowes and that of McGrath:


 * 1) In McGrath's case, the applicant sought to have the vehicle in question examined within days of the Book of Evidence having been served upon her, and prior notice that the applicant may wish to examine the vehicle had been given. However, in Bowes' case, the applicant sought to have the vehicle examined just a few days prior to the date fixed for trial.
 * 2) In McGrath's case, the vehicle had been disposed of two and a half months before proceedings were initiated. However, in Bowes' case, the vehicle had been disposed of a year after the applicant’s arrest.
 * 3) In McGrath's case, the case related directly to a collision between the applicant’s vehicle and the discarded motorcycle, and a consultant engineer stated that an examination of the motorcycle would be helpful in order to provide evidence such as where on the road the collision occurred, and the closing impact speeds. However, in Bowes' case, the case put forward by the prosecution did not turn on any fact of the vehicle nor the manner of the applicant’s driving. Instead, it focused on the proposition that an amount of drugs was found in the boot of the car directly after the applicant was driving.

Was there "a real risk of an unfair trial"?
The Court held that due to the nature of the case against Bowes, there was a mere negligible possibility that the examination requested would rebut the case. In support of this, Justice McGuinness cited the words of Justice McGuinness regarding the right to retain articles of evidential significance in Dunne v DPP:

“The right does not exist in a vacuum, but for a purpose. That purpose relates to the due administration of justice. It follows from this that it must be exercised in an impartial manner and not for the sole advantage of one side, or recklessly.”

Ultimately, the Court was satisfied that no real risk of an unfair trial would arise due to Bowes’ inability to conduct an examination of the vehicle.

In McGrath’s case, the Court held that an examination of the motorcycle would give “a reasonable possibility of rebutting the evidence” and therefore went on to examine other relevant factors such as the timing of the request to examine. However, in Bowes’ case, it was held that the case was based on the finding of drugs in his car and a subsequent oral statement from Bowes which could be seen as evidence that he knew of the contents of the boot. An examination was not likely to rebut this evidence. The Supreme Court rejected the appeal, and affirmed the order of the High Court.

Subsequent developments
The Supreme Court’s decision in Bowes v DPP was subsequently approved by the Supreme Court in the case of Ludlow v DPP and McFarlane v DPP.

Background
The appellant, Mr Carroll, had been an apprentice solicitor for his brother Mr Donal Carroll and later to Mr Chris Ryan. The former, the appellants brother, was later struck off as a solicitor. The appellant later worked with his brother at his business Accident Claims Services, which employed Mr Ryan to issue proceedings on behalf of Accident Claims Services when needed. On December 3rd 1993, the Law Society of Ireland issued a plenary summons against the appellant which claimed that he had been unlawfully pretending to be a solicitor. On the 13th of December of the same year, the Director of Education of the Law Society signed a notice of complaint of misconduct against the appellant. On the 21st of December 1995, the appellant applied to the Law Society to be admitted as a solicitor. The Society did not take this step, and contended that the appellant was not a fit and proper person to become a solicitor. Following a hearing before the Education Committee of the Law Society, judicial review proceedings were commenced.

In the High Court
In the first decision of the High Court, delivered by Mr Justice Kelly on May 2nd 2001, proceedings against the Law Society were struck out on the basis that they were an abuse of the Court’s process. In the second decision of High Court, delivered by Morris P on 13th June 2001, the Court ordered that ground three of Mr Carroll’s Notice of Application to review the decision of the committee of the Law Society be struck out as an abuse of process.

Holding of the Supreme Court
At the Supreme Court, both appeals were rejected and both orders of the High Court were affirmed: that of Kelly J in May 2001, and that of Morris P in June 2001. In his decision, Hardiman J pointed to the well-established rule of law which prevents a litigant from making, in legal proceedings, the same contention which they could have but failed to bring forward in previous litigation. In support of this rule, Hardiman pointed to the following passage from the judgment in Henderson v Henderson: "'I believe I state the rule of the Court correctly when I say that where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, only as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time.'"Much of the discussion centered around the appellant’s notice of application for judicial review on a decision of the Education Committee on the 18th April 2000, in particular ground 3 of that notice: “In so far as an adverse conclusion was reached in connection with the applicant's activities while he was apprenticed to Christopher Ryan, in view of Mr. Ryan's knowledge of and authorizing/condoning these activities and of the respondent or its disciplinary committee never taking steps to discipline Mr. Ryan in respect of those events and activities, even after the Supreme Court had in effect directed the respondent to do so, or seeking to have him give evidence at the tribunal notwithstanding their power to discipline him if he declined:

(i) The respondent is stopped from contending that those events and activities render the applicant an unfit and improper person.

(ii) To so contend or hold denies the applicant his constitutional right of equality before the law and his European Convention Right of Equality (Article 14).

(iii) To so contend or hold in the circumstances is an abuse by the respondent of its dominant/monopoly position contrary to Article 86 of the EEC Treaty and Section 5 of the Competition Act,, being designed to or having the effect of inhibiting competition in the legal services market.” The respondent argued that the appellant’s attempts to raise his so-called paragraph 3 grounds fell foul of the rule in Henderson v Henderson. The appellant disagreed, and argued that the claim on paragraph 3 grounds was a claim for damages, and sought to distinguish this from a case in which such a ground was raised to rebut a defendant’s findings. Furthermore, the appellant argued that there was no evidence that the Law Society would be subjected to any unfairness or injustice should the claim be allowed to continue.

The Court found that Mr Carroll had had ample opportunity to raise the paragraph 3 grounds at an earlier point in proceedings. The Court also pointed to the fact that on June 2001 the Defendant had attended in order to deal with judicial review proceedings, but Mr Carroll’s indecisiveness as to whether and in which forum he sought to bring his paragraph 3 grounds led to the proceedings being adjourned on that day. In dismissing the appeals, the Court held that raising the point once more was an unacceptable way to conduct litigation.

Subsequent developments
This Supreme Court’s decision in Carroll v Ryan was later followed in AA v Medical Council.