Judgment delivered the 31st day of July 2002 by McGuinnness J.
This is an appeal by the Respondent/Appellant, the Director of Public Prosecutions (“the DPP”) against the judgment and order of Kearns, J. dated the 26th day of January 2001 whereby he ordered that the Appellant be restrained from taking any further steps in the prosecution of the Applicant/Respondent, Mrs Linda Eviston, in proceedings entitled “The DPP at the Suit of Superintendent Dowd Prosecutor and Mrs Linda Eviston Accused.” These proceedings arose out of the death of one Tony Moynihan in a road accident.
The factual background to the present judicial review proceedings has been helpfully set out in some detail by the Chief Justice in his judgment and there is no need to repeat it here. In summary, the accident involving the Applicant took place on the 28th June 1998 in County Cork. The Applicant made a statement to the Gardai and subsequently provided engineer’s reports to the Gardai attributing the cause of the accident to a sudden deflation of one of the tyres of the Applicant’s vehicle.
In early December 1998 the Applicant’s solicitor was informed by the local Gardai that the DPP had decided not to direct the issue of any prosecution against the Applicant; this information was passed on to the Applicant by her solicitor.
On the 16th December 1998 the father of the deceased victim of the accident wrote to the DPP expressing his strong disagreement with the decision of the DPP not to prosecute and calling on him to reconsider that decision. Mr Moynihan senior also indicated that he had “personally contacted” the Minister for Justice for assistance in the matter. It appears that this letter was received in the office of the DPP on the 17th December 1998. The full text of the letter is set out both in the judgment of the High Court judge and in the judgment of the Chief Justice.
The original decision not to prosecute was then reviewed in the Office of the DPP. The DPP stated in a letter to the Applicant’s solicitor that this review was carried out “comprehensively, and at the highest level”. On the 23rd December 1998 on the application of the Gardai a District Court summons was issued against the Applicant charging her with dangerous driving causing the death of Tony Moynihan contrary to Section 53(1) (as amended by Section 51 of the Road Traffic Act 1968) and (2)(a) (as amended by Section 49(1)(f) of the Road Traffic Act 1984) of the Road Traffic Act 1961.
Following correspondence between the Applicant's solicitor and the DPP, the Applicant sought leave of the High Court to commence the present judicial review proceedings. On the 22nd March 1999 she was given leave to apply for an injunction restraining the DPP from taking any further steps in the prosecution proceedings. Leave was granted on two grounds, as follows:
“That the decision of the Respondent not to prosecute the Applicant was, once communicated to the Applicant following the admitted completion of the Garda inquiry, a final and conclusive decision and that the Respondent was acting ultra vires, contrary to law and in breach of the Applicant’s constitutional and legal rights in purporting to reverse it.”
“That if (which is denied) the Respondent has power to review and reverse the decision not to prosecute (such decision having been made following the conclusion of Garda enquires and published and communicated to the Applicant) that the Respondent was guilty of a breach of the Applicant’s right to fair procedures and constitutional justice in failing to:
(1) to advise and/or warn the Applicant at the time of communicating the said decision not to prosecute, that the Respondent reserved the power to reverse the said decision.”
A statement of opposition was filed on behalf of the Respondent.
During the course of the hearing of the substantive application before Kearns J. the Applicant was given leave to argue two additional grounds as follows:-
“(1) The Respondent acted on foot of an improper policy in purporting to claim unto himself an unfettered right to reverse his decision not to prosecute the Applicant when the said decision not to prosecute had been communicated to the Applicant following the admitted completion of the Garda enquiries, and, in the premise, the Respondent has acted ultra vires and in breach of the Applicant’s right to fair procedures;
(2) In the absence of good and sufficient grounds for so doing, it was not open to the Respondent to purport to exercise his power to reverse the decision not to prosecute the Applicant when the said decision had been communicated to the Applicant following the admitted completion of the Garda inquiry and, in the premise, the Respondent has acted ultra vires and in breach of the Applicant’s right to fair procedures.”
In the course of argument before the High Court it was acknowledged, as indeed it was also in this Court, that no new facts or evidential materials had become available to the DPP between the making of the first decision not to prosecute and the making of the subsequent decision to prosecute. The sole change of circumstance had been the receipt of the letter from the victim’s father.
This is not, of course, to say that the only materials which were before the DPP for his consideration were the Applicant’s statement and her engineer’s reports. In a letter to the Applicant’s solicitor dated the 15th January 1999 the officer of the DPP’s office stated:
“The decision not to prosecute in this matter was taken after a careful and comprehensive study of the Garda files submitted here on the conclusion of the Garda investigation into the matter.”
It can readily be assumed that such a file would in addition to the material submitted by the Applicant also include at least the normal sketch maps, measurements and information collected by the Gardai themselves in their investigation of the accident. There may also have been statements of other witnesses. All of this material would fall to be considered both at the time of the original decision and at the time of the DPP’s review of that decision.
In his judgment and order of the 26th March 2001 the learned High Court judge granted the relief sought by the Applicant. In essence, he did so on two grounds.
Firstly he held that the reversal of the DPP’s decision not to prosecute was “arbitrary and perverse”. At page 20 of his judgment he stated:
“In this case, the Respondent, has given his reasons for undertaking a review which resulted in the reversal of his decision not to prosecute. The reason consists solely and exclusively in the letter written by Mr Moynihan on the 16th December 1998. The portion of the letter to which the Respondent presumably only had regard refers to the upset and distress suffered by the Moynihans. It does not point towards any new element in the case or to the existence of any material of probative value whatsoever.
As for the decision to reverse, there is no suggestion that any new facts or material came to light or that some witness hitherto unknown or unavailable had become known and available. There is no suggestion that any of the information supplied by the Applicant in her engineer's reports or statement was incorrect. There is no contradiction of the facts relating to the accident as deposed to by the Applicant in her affidavit. There is no suggestion that the Respondent felt that on first consideration something had been overlooked by him or that some other factor meant an incorrect decision had been made at that stage. There is no suggestion that there is some other consideration or reason which the Respondent choose not to discuss or felt precluded from disclosing which might explain the reversal of the original decision. It is, quite simply, the formation of a contradictory view on the same material.
For the Respondent to unmake his original decision and to reinstate a prosecution in such circumstances seems to be arbitrary and perverse.”
The learned High Court judge also held in favour of the Applicant on a second ground, which he described as “the failure of the Respondent to comply with his own policy guidelines”. He based this decision on an analysis of the annual report of the Director of Public Prosecutions for the year 1998. This report, although not exhibited in any affidavit, was by agreement made available to the Court. The trial judge quoted from section 5.1 of the report as revealing:
“the importance which the Respondent himself attaches to the formation of a decision to prosecute or not to prosecute in any particular case.”
He quoted Section 5.1 as follows:
“It has long been recognised that the decision to prosecute or not to prosecute is of fundamental importance in a criminal justice system and particularly in an accusatorial system such as exists in Ireland. Many observers regard it as by far the most important stage in a criminal process, involving as it does serious and far reaching consequences for those affected by it. The consequences for a Defendant can and frequently do include irretrievable loss of reputation or of employment, disruption of family relations and very substantial expense. If in fact the person charged is innocent, the resulting injustice is obvious. The consequences for the victim of a crime or for a victim's family when an incorrect decision not to prosecute is taken can be equally damaging. It is essential that every effort humanly possible be made to get this decision right.”
From this Kearns J. concluded
“The only logical inference one can draw from the foregoing is that a decision once arrived at and communicated to a potential accused will not likely be reversed without good and sufficient reason. This must surely be particularly the case where a decision not to prosecute is replaced by a decision to prosecute.”
The trial judge went on to refer to other sections of the report, placing particular emphasis on Section 10.4 which he quoted:
“10.4 Request for a review by other persons having a personal or legitimate interest in the decision such as a victim or a suspect or accused are sympathetically received. Obviously the office could not automatically grant every request for a review. To do so would divert already scarce resources from its urgent ongoing business. However, if the person seeking the review advances a reasonable basis for the request it would be granted unless that particular factor have already been exhaustively considered. Several reviews have been conducted as a result of such requests.”
At page 22 of his judgment the trial judge concluded:
“The procedure for reviews makes it clear that the person seeking the review must advance ‘a reasonable basis for the request’. Furthermore, even if that condition is fulfilled, which in my view did not happen in the instant case, a review will be granted ‘unless that particular factor had already been exhaustively considered’. Any consideration of the ‘particular factor’(i.e., the distress suffered by the Moynihan family) must be taken has having already been exhaustively considered by the Respondent. No new facts were brought to the Respondent’s attention, nor is there any suggestion that either the Respondent or some official on his behalf came to any conclusion that the original decision had been ‘incorrect’. It seems to me the Applicant is entitled to relief for this reason also, namely, non-compliance by the Respondent with his own guidelines for reviews.”
Submissions of Counsel
Senior Counsel for the Applicant, Mr Gleeson, submitted as a general principle that in deciding whether or not to bring a prosecution the DPP was not settling any question or dispute or deciding rights or liabilities; he was simply making a decision whether it was appropriate to initiate a prosecution. Since the DPP was not acting as an adjudicator, or in a judicial capacity, he was not subject to the rules of procedural fairness. Counsel here relied on the decision of Carswell LCJ in In the Matter of Adams [2001] NIECA2 (Court of Appeal of Northern Ireland 19th January 2001). Mr Gleeson, however relied primarily on the judgment of Finlay CJ in The State (McCormack) v Curran, the Director of Public Prosecutions and the Attorney General [1987] ILRM 225 which was later followed by this Court in H v Director of Public Prosecutions [1994] 2 IR 589. These cases, he submitted, established that a decision of the DPP in relation to a prosecution could only be judicially reviewed if it was demonstrated that he had reached a decision mala fide or was influenced by an improper motive or improper policy. I will refer to these cases in more detail at a later stage. Mr Gleeson pointed out that the learned trial judge had specifically held that the Respondent had not acted mala fide or for an improper motive and it must therefore be assumed that his decision was based on an alleged improper policy on the part of the DPP.
Mr Gleeson went on to draw attention to the policy of the DPP as set out in his Annual Report of 1998 concerning the review of decisions either to prosecute or not to prosecute. He referred in particular to paragraph 10.5 of that Report which stated as follow
“When a review is granted, it is conducted thoroughly and by way of complete re-examination of the case unless the request itself is confined to a specific point or points. The procedure adopted will vary according to the circumstances of the case. It will usually be conducted by a professional officer other than the officer who took the original decision. In difficult cases several opinions including that of the Director may be sought. The important point is that it is a real review and neither the professional officers individually nor the Office itself would experience any problem altering the original decision where that is considered to be the correct course. Apart from cases where new facts are brought to attention, alterations of the original decision would be the exception rather than the rule but there have been examples of alterations where either the officer originally concerned or another came to the conclusion that the decision given had been incorrect. It should be emphasised that in the small number of cases in which decisions have been either reversed or modified without new facts having been brought to attention the judgment call involved had usually been a very fine one.”
There was, counsel argued, nothing improper in such a policy. The learned trial judge had failed to identify to any improper policy on the part of the DPP. In holding that the decision of the DPP was arbitrary and perverse on the grounds that no reasonable person who applied his mind to the matters to be decided by the Respondent could have arrived at the decision which he did, because the decision to prosecute was simply the formation of a contradictory view on the same material, the learned judge had failed to take account of the policy of the DPP as set out in his Report. The decision of the Director was not unreasonable in the established sense as set out in the well known judgment of this Court in O’Keeffe v An Bord Pleanala [1993] 1 IR 39. It was clear that there were materials before the DPP on which he could reasonably have relied in making the decision to prosecute. These materials included considerations other than evidential matters, as had been accepted by this Court in The State (McCormack) v Curran [1987] ILRM 225.
With regard to the learned trial judge’s second ground for granting relief - the failure of the DPP to follow his own guidelines, Mr Gleeson submitted that this ground did not form any part either of the grounds permitted to be argued in the original order giving leave or of the further grounds permitted during the course of the trial. No argument had been made at any stage in the submissions on the hearing in regard to this ground. The trial judge had therefore no jurisdiction to rely on this ground in making his decision. In addition counsel submitted that the learned High Court judge had erred in equating the Respondent’s Annual Review with the Code for Crown Prosecutors issued by the DPP of England and Wales which was referred to in R v DPP ex parte C [1995] 1 CR App.Rep.136. He also erred in law in holding that the Respondent had failed to comply with his Annual Report. The DPP’s course of action in the present case had been fully in accordance with the policy as set out in his Annual Report of 1998 and in particular paragraph 10.5 thereof.
Senior Counsel for the Applicant, Mr Horgan, argued that the submissions made on behalf of the Appellant for the greater part did not address the matter which was truly in issue in this appeal. Mr Horgan accepted the role of the Director of Public Prosecutions (as set out in the State (McCormack) v Curran) in reaching a single decision whether to prosecute or not to prosecute in any particular case. He accepted, also, that it was open to the Director in a proper case to hold a review of his original decision and to reach a different decision. The instant proceedings must be considered in the light of the facts of this particular case, where the procedure adopted by the Director involved at least three decisions. The first decision was a decision not to prosecute conveyed to and received by the Applicant in good faith; the second decision was a decision to review the first decision; the third was a decision to unmake the first decision and direct that the Applicant should in the event be prosecuted. In the particular and exceptional facts of the case, counsel argued, there was a breach of the Applicant’s constitutional rights, in particular her right to natural and constitutional justice and to fair procedures.
Mr Horgan challenged the DPP’s contention that the same jurisprudence applied to this “multiple and contradictory decision-making process” as applied to a single decision to prosecute or not to prosecute. The DPP’s position was that the test in bringing a prosecution should be the same whether or not it was intimated to an individual that no prosecution would follow. Mr Horgan contended that there was no basis in law for the assertion of an unfettered discretion of this nature on the part of the DPP. He submitted that the Courts had consistently held that there was no discretion on the part of the DPP which would allow him to contravene a constitutional or indeed a legal right of the citizen or would allow him to pursue a prosecution which amounted to an abuse of the process of the Courts. The DPP could be and had been restrained from prosecuting an alleged offence in a variety of circumstances as for instance where there was a breach of the citizen’s constitutional right to a trial with due expedition (DPP v Byrne [1994] 2 IR 236; DPP v Arthurs [2000] 2 ILRM 363), where there was a denial of the citizen’s constitutional right to equality before the law (McMahon v Leahy [1984] IR 525), where there was an abuse of the citizen’s constitutional right to legal representation in a criminal prosecution (State (Healy) v O’Donoghue [1976] IR 325), where the Prosecutor was acting oppressively (The State (O’Callaghan) v O hUadhaigh [1977] IR 42, or where the Prosecutor’s conduct constituted an abuse of the process of the Court (R v Looseley [2001] 4 All ER 897.)
Mr Horgan went on to argue that the long recognised right of the citizen to bodily integrity under Article 40.3 of the Constitution (Ryan) v Attorney General [1965] IR 294) included the citizen’s right to security of his person. This constitutional guarantee protected the citizen against unlawful and unwarranted invasions of his right to peaceful enjoyment in his life from the State or its agencies, including the DPP. The individual must be dealt with by the State and its agencies (including the DPP) without oppression and not contrary to justice. As was stated by Finlay P. (as he then was) in State (O’Callaghan) v O’hUadhaigh [1997] IR 42 at page 52:
“Just as those principles apply to the proceedings of a Court in trying a criminal case, the same or analogous principles must apply, a fortiori, to the exercise by the Director of Public Prosecutions of his statutory powers.”
The issue was not whether it was open to the DPP to review a decision to prosecute or not to prosecute, but whether, once he had informed the Applicant that she would not be prosecuted, it was oppressive and contrary to justice for the DPP subsequently to decide to initiate a prosecution.
The Law and Conclusions
In considering both the particular facts of this case and the applicable law, I propose to deal firstly with the second ground upon which the learned High Court judge granted relief to the Applicant - his finding that the Director of Public Prosecutions had failed to comply with his own guidelines as set out in his Annual Report for the year 1998. As far as this ground is concerned, I would accept the submission of Senior Counsel for the Appellant that this formed no part of the permitted grounds on which a case for judicial review could be argued before the High Court. This applies both to the grounds permitted at the leave stage and to the additional grounds permitted during the course of the trial. Senior Counsel for the Applicant suggests that because the Appellant referred to the text of the Annual Report during the trial in the High Court it is not now open to him to challenge the trial judge’s reliance on an alleged failure to observe the guidelines contained in the Report when granting relief. It seems to be that this is an irrelevant consideration. Either failure to comply with the guidelines was a permitted ground for judicial review or it was not. In her judgment in G v DPP [1994] 1 IR 374 at 382, Denham J. stressed the importance of the “screening process” which was the aim of the application for leave to bring judicial review proceedings. She stated:
“The preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders of the prerogative writs. The aim is similar - to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public authority unnecessarily.”
It appears to me that it was therefore not open to the learned High Court judge to grant relief on this ground. Apart from this, it does not seem to me that under the 1998 guidelines the DPP is precluded from reviewing the case and reaching a contrary conclusion even if there is no new evidential or other material before him.
In my view consideration of this appeal must start with an analysis of the real issue between the parties to the proceedings. The issue is not whether the DPP has a right to review an original decision either to prosecute or not to prosecute. Still less is an issue, as it was in earlier cases, as to whether the DPP should give reasons either for his original decision or for an altered decision. Mr Horgan both in his written submissions and in argument before this Court accepted both the DPP’s right to review a decision and, indeed, his right to do so where no new evidential material had come into his possession. Quite correctly, he accepted the dictum of Finlay CJ in The State (McCormack) v Curran [1987] ILRM 225 at 337 where he stated:
“In regard to the DPP I reject also the submission that he has only got a discretion as to whether to prosecute or not prosecute in any particular case related exclusively to the probative value of the evidence laid before him.”
Mr Horgan relied on the particular facts of this case, and what he asserts is a denial of the constitutional rights of the Applicant.
I would accept that there are a number of aspects of the history of this case which would give rise to concern, in particular to the Applicant personally, but also in a more general way.
On 30th November 1998 the DPP informed the local State Solicitor that no prosecution would issue. This information was promptly conveyed to the Applicant by her own solicitor. On 17th December 1998 the Office of the DPP received the letter from Mr Moynihan, father of the deceased Mr Tony Moynihan. This letter, which has been quoted in full elsewhere, included the following paragraph:
“I have personally contacted Minister John O’Donoghue in relation to this matter in the hope that he can use his good office to assist us in this most distressing matter.”
The fact that the Minister for Justice had taken no action in the matter was not conveyed to the Applicant until the second affidavit of Domhnall Murray of the DPP’s office sworn 12th January 2001, almost two years after the initiation of the Applicants’ judicial review proceedings following the order of Mr Justice O’Higgins granting leave on the 22nd March 1999. It is extremely likely that the Applicant during all of this period wrongly believed that the decision not to prosecute had been changed on account of political influence.
In Mr Murray’s affidavit of 22nd November 1999 (in which Mr Moynihan’s letter was exhibited) Mr Murray states that in accordance with the practice of the office of the DPP this review was conducted thoroughly and by way of complete re-examination of the case. It can be assumed, as I have already noted, that in addition to the material submitted by the Applicant herself the reviewing officer would have had before him additional material emanating from the Gardai and possibly from other witnesses. It is acknowledged that apart from the letter from Mr Moynihan no new material was available which had come into being after the decision not to prosecute.
The direction from the office of the DPP to issue the summons was issued with remarkably little delay. It reached the local Gardai in time for the summons to be issued on 23rd December 1998, which was apparently four working days after the receipt of Mr Moynihan’s letter by the DPP.
It is not suggested that the DPP acted male fide or from an improper motive in reversing his decision not to prosecute and by and large the procedure he adopted in reviewing the case is not open to criticism. However there can be no doubt that on the information available to her the Applicant was subjected to very considerable stress and anxiety and could have had reasonable doubts about this procedure. The Applicant had been unequivocally informed that she would not be prosecuted. She was not in any way warned of the possibility that the DPP might review his decision.
It would be difficult not to have sympathy for the Applicant’s position. This, however, is not a sufficient reason to lead to the conclusion that as a matter of law this prosecution should be prevented.
The Applicant herself through her counsel acknowledges the right of the DPP to review his original decision, even in the situation where no new evidence was available to him. The essential issue, therefore, arises from the fact that the Applicant had been informed that she would not be prosecuted and that no warning or caveat accompanied this information. In these circumstances, was the DPP’s subsequent decision to initiate a prosecution a denial of the Applicant’s right to fair procedures and constitutional justice?
It also seems clear that this is the essential issue which emerges from all of the permitted grounds which have been cited above. The first ground lays emphasis on the reversing of the DPP’s decision, described as final and conclusive. The second ground emphasises the failure to warn the Applicant that the DPP had power to reverse his decision. The third ground refers to the DPP acting on foot of an improper policy but again relies on the communication of the decision not to prosecute. The fourth ground refers to the absence of good and sufficient reasons, but again alleges that the DPP has acted in breach of the Applicant’s right to fair procedures by reversing his decision not to prosecute “when the said decision had been communicated to the Applicant”.
The DPP, through his counsel, argues that his decision either to prosecute or not to prosecute is not subject to judicial review save where he is found to be acting male fide, or influenced by an improper motive or improper policy, or where the facts of the case do not exclude the reasonable possibility of a proper and valid decision by the DPP. In this he relies on the decision of this Court in the State (McCormack) v Curran [1987] ILN 225 as followed by this Court in H v DPP [1994] 2 IR 589. The facts in the State (McCormack) v Curran as set out in the headnote are as follows:
“The Criminal Law (Jurisdiction) Act 1976, provides that where a person has been charged with an extra territorial offence in Northern Ireland he may elect to be tried in the Republic, provided that a judge of the High Court of Northern Ireland, or the court of trial, is satisfied that a warrant for the arrest of the accused man has been issued in the Republic for a corresponding offence, based on an information laid by a member of the Garda Siochana. The Prosecutor had been returned for trial in the Crown Court at Belfast, charged with an extra territorial offence within the meaning of the 1976 Act. The acts of which he was accused constituted offences under Irish law also, and rendered him liable to arrest, charge and trial within this jurisdiction. The Prosecutor wished to opt for trial within the Republic, and accordingly, he requested the Respondents to issue a warrant for his arrest. The second named Respondent decided not to issue a warrant, and the Prosecutor obtained conditional orders of certiorari and mandamus in the High Court in Dublin.
In the High Court Barr J. held, inter alia, that the function of the Director of Public Prosecutions in deciding whether or not to prosecute an individual for the alleged commission of a criminal offence is an executive one, and is not reviewable by the Courts, as this would interfere with his independence. On appeal, this Court held that the decisions of the Director of Public Prosecutions can in certain circumstances be reviewed by the Courts. In that case the evidence did not exclude the possibility of a proper and valid decision by the Director which was not reviewable by the Court.”
In his judgment Finlay C.J. (at pages 236 - 237) stated:
"I do not accept the submission that a member of the Garda Siochana who obtains information leading to a submission that a person has been guilty of committing a serious offence must in every case proceed to arrest or seek a warrant to arrest the suspect or otherwise institute a prosecution.
Neither do I accept the contention made on behalf of the Respondent that the decision of a member of the Garda Siochana not to proceed to arrest or initiate a prosecution can never be reviewable.
I am, however, satisfied that in the instant case, at least, one of the matters which a member of the Garda Siochana would be entitled to seek information on before proceeding to apply for a warrant would be as to whether the issue of the warrant and the arresting of the suspect would lead to his trial. It does not appear to me that the evidence which was before the High Court and which solely consisted of the affidavit of the Prosecutor's solicitor, leads to the conclusion that the first named Respondent abdicated his obligation to exercise his discretion concerning the application for a warrant, but I am satisfied that it goes so far only as indicating that before deciding not to proceed he consulted with the DPP.
In regard to the DPP I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him. Again, I am satisfied that there are many other factors which may be appropriate and proper for him to take into consideration. I do not consider that it would be wise or helpful to seek to list them in any exclusive way. If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a Court. To that extent I reject the contention again made on behalf of this Respondent that his decisions were not as a matter of public policy ever reviewable by a Court.
In the instant case, however, I am satisfied that no prima facie case of mala fides has been made out against either of the Respondents with regard to this matter, secondly, I am satisfied that the facts appearing from the affidavit and documents do not exclude the reasonable possibility of a proper and valid decision by the DPP not to prosecute the Applicant within this jurisdiction and that that being so he cannot call upon to explain his decision or to give the reasons for it nor the sources of the information upon which it was based."
In his judgment Walsh J. stated:
"I concur in the opinion of the Chief Justice that the actions of the DPP are not outside the scope of review by the Courts. If he oversteps or attempts to overstep his function he can, if necessary, be restrained by injunction but I do not think any step he takes or any action or omission which is ultra vires cannot be of the nature of orders which attract certiorari. A failure to perform his statutory duties could however be the subject of mandamus."
In H v DPP [1994] 2 IR 589, which again was a case in which the Applicant sought to compel the DPP to initiate a prosecution (against her husband), it was held by this Court that in the absence of a prima facie case of mala fides being made out and where the facts do not exclude the reasonable possibility of a proper and valid decision of the DPP not to prosecute, he cannot be called upon to explain his decision or to give the reasons for it nor the sources of the information upon which it is based. There was nothing before the Court from which it could be reasonably inferred that the decision of the DPP was perverse, or inspired by improper motives, or that he had abdicated his functions and an unsubstantiated statement of belief by the Applicant which had not been denied by the DPP did not give rise to an adverse inference. O'Flaherty J. in his judgment (at page 602) stated:
"I would uphold the finding of the learned trial judge that this is not an appropriate case to order the Director of Public Prosecutions to bring a prosecution. This is par excellence an example of a case where the Director must apply his mind to whether it is appropriate to bring a prosecution where there has been this long history of family strife, where the case is an old one, and where it now appears that the boy would not testify in any event. If the Director of Public Prosecutions were to be subjected to frequent applications by discomforted persons for mandamus to compel him to bring prosecutions, I apprehend that his office would be stretched beyond endurance in seeking to justify that which should not require to be justified.
I would also uphold the submissions made on behalf of the Director of Public Prosecutions that certainly as far as this case is concerned he was not obliged to give his reasons for not bringing a prosecution and I would, in general, uphold the appropriateness of that course of action for the reasons submitted on his behalf before us."
Denham J. in her judgment in the same case at page 606 stated:
"Applying the test of the Chief Justice as set out in the State (McCormack) v Curran to the facts of this case I am satisfied that no prima facie case of mala fides is being made out against the Respondents. The unsubstantiated statement of belief by the Applicant not denied by the Director of Public Prosecutions does not of itself give rise to an adverse inference. The facts of the case do not exclude the reasonable possibility of a proper and valid decision of the Director of Public Prosecutions not to prosecute the persons named by the Appellant. Consequently, the Director of Public Prosecutions cannot be called upon to explain his decision or to give reasons for it nor the sources of the information upon which it is based."
In considering the dicta of Finlay C.J. in State (McCormack) v Curran it is, in my view, necessary to be clear about exactly what was decided in that case. At issue in the appeal was whether the DPP's decision to prosecute or not to prosecute could in any circumstances be subject to judicial review. The trial judge had held that it could not. This Court, while dismissing the appeal on other grounds, specifically held that the DPP was subject to judicial review, albeit on narrow grounds. The Chief Justice also expressed himself satisfied that the facts of the case did not exclude the reasonable possibility of a proper and valid decision by the DPP not to prosecute. As a result the DPP could not be called upon to give the reasons for his decision.
It is notable that when the Chief Justice spoke of the discretion of the DPP to prosecute or not to prosecute being related to a variety of considerations other than the probative value of the evidence laid before him he specifically stated that it would not be wise or helpful to seek to list these considerations in any exclusive way. He then goes to refer briefly to situations in which the decision of the DPP would be open to judicial review. While it is not necessary to decide this question for the purposes of the present appeal, it seems to me that there must be at least some doubt as to whether the Chief Justice intended this to be an exhaustive list applicable for all time. This may be borne out by the dictum of Walsh J. who simply states that if the DPP oversteps or attempts to overstep his function he can if necessary be restrained by injunction. However, this question is one which may fall to be considered in a future case.
In H v DPP this Court was again considering a single decision of the DPP not to initiate a prosecution. This, it appears from the facts recited in the judgments, was in a situation where there was quite sufficient material before the DPP to enable him to exercise his discretion in this way. This is abundantly clear from the passage already cited from the judgment of O'Flaherty J. at page 602. The main issue in contention in that case, it appears, was whether the DPP should be required to give reasons for his decision. The decision of the Court on that question was summarised in the passage quoted from the judgment of Denham J.
Thus, while in these two cases the situation in which the DPP's original decision to prosecute or not to prosecute may be judicially reviewed is narrowly defined, in neither case did the Court consider the situation which arises on the facts of the instant case. Neither did the Court decide whether it is open to the DPP, once he has unequivocally notified a person that he or she will not be prosecuted, subsequently to alter his decision and initiate a prosecution.
Counsel for the Applicant has given a number of examples of cases where prosecutions were halted, in general because it was held that the actions of the prosecuting authorities amounted to an infringement of the rights of the accused under the Constitution. In the main these were rights to fair procedures and natural and constitutional justice. Relying on these cases Mr Horgan postulated a right on behalf of the Applicant to be protected against unlawful and unwarranted invasions of her right to peaceful enjoyment in her life from the State or its agencies. Apart from this perhaps overly-comprehensive right, he submitted that the Applicant must be protected against a breach of her right to fair procedures. Counsel for the DPP, while accepting that any person appearing before the Court had a right to fair procedures, argued that the DPP, who was not an adjudicator, was not subject in the same manner as an adjudicator to the rules of procedural fairness. The authority on which he relies for this submission is the judgment of Carswell L.C.J. in In the Matter of Adams [2001] NIECA 2. This is, of course, a persuasive authority and one to which due deference must be paid. Nevertheless, like the other cases mentioned above, its facts are very different from those in the instant case and it also deals with a single decision of the Northern Ireland DPP not to prosecute. As far as the cases cited by Mr Horgan are concerned I would accept that in the majority of these the accused person had already been brought before the Court and his right to fair procedures was asserted and confirmed in that situation.
It appears to me that the case which bears some similarity to the instant case, both in its facts and in its issues, is (State) O'Callaghan v O hUadhaigh [1977] IR 42. The facts of that case, which are somewhat complex, are set out in the headnote as follows:
"The Prosecutor was returned by the District Court to the Circuit Court for trial on eight charges. The Director of Public Prosecutions lodged in the Circuit Court an indictment containing one count and, on his application, the trial of the Prosecutor was transferred to the Central Criminal Court. The Director then lodged an indictment containing eight counts and subsequently he lodged another indictment which contained ten counts. A jury was sworn but the Prosecutor was not given into the charge of the jury as he had entered a written plea in bar. After legal argument, the trial judge ruled that the only indictment properly before the Court was the original single count indictment; whereupon, having taken instructions, counsel for the director entered a nolle prosequi in regard to all the counts in each of the three indictments and informed the Court that the Prosecutor, when discharged, would be re-arrested and charged again with the same offences. The Prosecutor, who had been remanded in custody for six months, was released. .... The Prosecutor was re-arrested and charged in the District Court with the same offences. Having obtained in the High Court a conditional order of prohibition to prevent the Respondent District Justice proceeding with the renewed charges unless cause were shown to the contrary, the Prosecutor applied for an order absolute notwithstanding the cause shown by the Respondent.”
It is what might be described as the final episode in this chain of events which appears to me to be of relevance to the instant appeal. Given the particular actions of the DPP in entering an nolle prosequi on the various counts and subsequently re-arresting the accused and again charging him on the same counts, the Court held that the prosecution of the renewed charges would not accord with the standard of fair procedures required by the Courts in the administration of justice.
In his judgment (at page 52-53) Finlay P. stated:-
“In the course of his judgment in The State (Healy) v Donoghue [1976] IR 325 the Chief Justice said at page 348 of the report:-
‘In the first place the concept of justice, which is specifically referred to in the Preamble in relation to the freedom and dignity of the individual, appears again in the provisions of Article 34 which deal with the Courts. It is justice which is to be administered in the Courts and this concept of justice must import not only fairness, and fair procedures, but also regard to the dignity of the individual. No court under the Constitution has jurisdiction to act contrary to justice. Mr Justice Gannon in his judgment in this matter in the High Court said:
‘Before dealing with the submissions on the grounds on which the conditional orders were made, I think I should say at the outset that it appears to me that the determination of the question of whether or not a Court of local and unlimited jurisdiction is acting within its jurisdiction is not confined to an examination of the statutory limits of jurisdiction imposed on the Court. It appears to me that this question involves also an examination of whether or not the Court is performing the basic function for which it is established - the administration of justice. Even if all the formalities of the statutory limitation of the Court be complied with and if the Court procedures are formally satisfied, it is my opinion that the Court in such instant is not acting within its jurisdiction if, at the same time, the person accused is deprived of any of its basic rights of justice at a criminal trial.’
I agree with these views.’
If this statement of principle (which, of course, I unreservedly accept) applies to the proceedings of a Court in trying a criminal case, it appears to me that the same or analogous principles must apply, a fortiori, to the exercise by the Director of Public Prosecutions of his statutory powers, and to the interpretation by me of those statutory powers in any particular circumstance...
If the contention of the Respondent is correct the Prosecutor, having undergone that form of trial (and remand awaiting trial) and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of a statutory power on the part of the Director of Public Prosecutions. In this way the Prosecutor would have the entire of his remand awaiting trial set at naught and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting different procedures, could avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused: if the trial judge makes decisions adverse to the interest of the accused, the latter cannot obtain relief from them otherwise than by appeal from the Central Criminal Court, or by appeal or review in the a case of an inferior Court.”
The dictum of Finlay P. “it appears to me that the same or analogous principles must apply, a fortiori, to the exercise by the Director of Public Prosecutions of his statutory powers” would appear to establish that the requirement of fair procedures does indeed apply to the Director of Public Prosecutions, at least in “particular circumstances”, in the exercise of his statutory functions.
In my view the “particular circumstances” of the instant case must require fair procedures on the part of the DPP. In thus holding I am bearing in mind all the facts of the case as they have emerged during the course of the proceedings. I also bear in mind the level of stress and anxiety which has been borne over a considerable period by the Applicant. On these particular facts it seems to me that once the DPP had unequivocally and without any caveat informed the Applicant that no prosecution would issue against her in connection with this road traffic accident, it was a breach of her right to fair procedures for him to reverse his decision and to initiate a prosecution by the issuing of the summons on the 23rd December 1998. I would dismiss the appeal.