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1. On Saturday, 27th June, 1998, she drove the family car from Killarney to Kilkenny to visit her sister who was then having a baby. She was accompanied on the journey by her son, Eric who was then aged 3 years.

2. On Sunday, 28th June, 1998, she left Kilkenny at about 4.50p.m. in bright sunny conditions to return to Killarney. This is a journey of approximately 3 hours. She was again accompanied by her son, Eric, who was strapped into a baby seat in the rear of the car.

3. She got a puncture in the back left wheel of her car in Cashel. She could not change the wheel herself but called into a bed and breakfast establishment where two men volunteered to change the wheel for her. This delay took about forty-five minutes before she continued her journey. She passed through Mallow and was heading towards Killarney at approximately 50-55m.p.h.. Her son was asleep in the baby seat in the rear of the car. As she approached the crossroad to Cullen, Co. Cork, her car suddenly and without warning pulled across to the right hand side of the road. She described the moment being ‘as if the steering had taken on a life of its own’. She saw a black motor car coming towards her which took evasive action by swerving across to its incorrect side. Unfortunately Mrs Eviston succeeded in steering her car back to her correct side and the front left hand sides of both cars collided.

4. Tragically the driver of the other vehicle, Tony Moynihan who was completely blameless in the circumstances, died as a result of the injuries he sustained in the collision.

5. The accident was investigated by the Gardaí in Millstreet, Co. Cork. Notice of Intention to Institute a Prosecution was served on the applicant on the 1st July, 1998. The applicant co-operated fully with the investigation, furnishing a written signed statement dated the 3rd of September 1998.

6. She also forwarded to the Gardaí copies of her Consultant Engineer’s Reports, incorporating a Report dated the 5th of July 1998 from W.J. Rowley and Associates and letters from the same firm dated 25th August, 1998, 31st August, 1998, and 1st October, 1998.

7. The engineers found that the wheel which had been taken from the boot to replace the puncture had deflated completely causing, in their view, a swerving action of the car, resulting in it going out of the drivers control. The said wheel and tyre were in a deflated state after the accident but showing no defect or mark that might have suggested accident-related damage. It is the engineer’s view that this tyre was progressively losing pressure while it was a spare in Mrs Eviston’s vehicle and that it was greatly reduced in pressure when it was fitted to the car shortly before the accident took place.

8. The Gardaí completed their investigations and forwarded a file to the respondent’s office where it was received on the 21st October, 1998. Directions were sought as to whether or not a prosecution should ensue arising out of the road traffic accident in question. The Affidavit of Domhnall Murray, Professional Officer in the respondent’s Office, sworn on the 22nd November, 1999, states that the case was considered, in accordance with normal practice, by a professional officer of the respondent’s Office. It was decided that no prosecution against the applicant should be initiated. A direction to that effect was communicated by letter to Frank Nyhan, State Solicitor for Co. Cork, on the 30th November, 1998. The applicant, through her solicitor, was informed of the decision in early December.

9. Unbeknownst, however, to the applicant, the father of the deceased, Mr Anthony Moynihan, wrote to the respondent on the 16th December, 1998, a letter in the following terms:-

10. This letter was disclosed as an exhibit in the Affidavit of Domhnall Murray, sworn on behalf of the respondent, who in his Affidavit states that in consequence (i.e. of the letter) the decision not to prosecute was reviewed.

11. His Affidavit continues as follows:-

12. Mr Moynihan’s letter was received in the respondent’s Office on the 17th December 1998. Within six days of receipt of the letter (which in effect comprised only four working days because of the intervention of a weekend), the Gardaí in Millstreet made application on the 23rd December, 1998, on behalf of the respondent, for the issue of a Summons to the applicant. This application alleged that on the 28th June, 1998, she did drive a vehicle registered 89 KY 2955 in a manner (including speed) which having regard to all the circumstances of the case (including the then actually was and might reasonably be expected to be therein) was dangerous to the public, thereby causing the death of another person namely 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.

13. On the same day, the applicant’s solicitor was informed by the Gardaí that representations had been made to the DPP’s Office by the family of the deceased, and that as a result the file had been looked at again and that instructions had now been given to prepare Summonses for dangerous driving and dangerous driving causing death, and that a direction would be issued in January 1999 as to which of the charges would be proceeded with.

14. The applicant’s solicitor on the 13th January, 1999, wrote to the respondent seeking an explanation as to why the decision not to prosecute was reversed.

15. On the 15th January, 1999, Mr Domhnall Murray of the respondent’s Office replied as follows:-

16. On the 22nd March, 1999, O’Higgins J. granted leave by way of Judicial Review to the applicant to restrain the respondent by way of injunction from taking any further steps in the prosecution of a dangerous driving proceedings on the following grounds:-

17. The Statement of Grounds of Opposition was delivered on the 8th November, 1999, opposing the grant of the relief sought upon the following grounds:-

18. The matter came before this Court in December, 2000, when the documentation was opened to the Court and both sides made submissions to the Court. The Court, however, decided to adjourn the hearing until the 12th January, 2001. This adjournment took place for two reasons. Firstly, the Court was not happy to proceed further with the matter in December without affording to the Minister for Justice, who was not a party to the proceedings, an opportunity to involve himself in such manner as he might be advised having regard to the contents of Mr Moynihan’s letter and the reference to the Minister contained in that letter. The Minister did not, however, elect to involve himself in any way in the proceedings. That said, prior to the resumption of the hearing, a further Affidavit on behalf of the respondent was sworn on the 12th January, 2001, by the said Domhnall Murray in response to the Court’s request that either the then Director, Mr Eamon Barnes, or whoever had effectively on his behalf made the decision to reverse the original decision, should address the reference contained in the penultimate paragraph of Mr Moynihan’s letter. Counsel for the respondent told the Court in December that the respondent would be happy to comply with this request.

19. Mr Murray’s further Affidavit, without identifying his means of knowledge, simply states:-

20. On the 12th day January, 2001, the Court also gave leave to the applicant to widen the grounds upon which relief sought might be granted to include the following:-

21. While counsel for the respondent said that additional grounds should not be allowed, he did not claim that he was in any way prejudiced thereby and the Court took the view that, having regard to the highly unusual features of the case, it was necessary and expedient to do so in the interests of justice. Further, the widening of the grounds did not involve the introduction by the applicant of any new facts. Indeed, the only party permitted to do that was the respondent through Mr Murray’s further Affidavit.

22. The Courts in Ireland have shown considerable reluctance to apply the normal standards of Judicial Review to prosecutorial decisions. The prosecutorial discretion is regarded as almost completely immune from judicial scrutiny except in extremely limited circumstances. This appears to be the first occasion where the respondent’s right to reverse his previously made decision has come before the Court.

23. The basis upon which the Court can interfere with decisions of the Director of Public Prosecutions are fully dealt with in decisions of the Supreme Court in the State (McCormack) -v- Curran (1987) ILRM 225 and H -v- Director of Public Prosecutions (1994) 2IR 589.

24. In a nutshell, it has been held that in decisions to prosecute or not to prosecute, the Court can only intervene by way of Judicial Review where it is demonstrated that the Director in making his decision did so mala fide or was influenced by an improper motive or was influenced by an improper policy or had abdicated his functions.

25. Further, the Director of Public Prosecutions is not obliged to give his reasons for either bringing or not bringing a prosecution. As was stated by O’Flaherty J in H -v- Director of Public Prosecutions at p. 603:-

26. In England a somewhat more expansive approach to judicial intervention exists, as is apparent from the decision of the Divisional Court in R -v- DPP ex parte C . (1995) 1 Cr. App. Rep. 136). This was a case where the prosecution, in a buggery case, had failed to have regard to prosecutorial guidelines in deciding not to institute a prosecution. Having reviewed the authorities and noting that the power of review is one “to be sparingly exercised”, Kennedy L.J. stated (p.141):-

27. Paul McDermott, in the context of a discussion on ‘double jeopardy’ in his book “Res Judicata and Double Jeopardy” (1999 Ed.,) states at para. [22.22]:-

28. He continues as follows at para. [22.24]:-

29. On behalf of the applicant Mr. Horgan submitted that the respondent, when exercising his duties and discretions, is bound by the principles of constitutional and natural justice. For the Director to advise a citizen of a decision without reserving a right to reverse, particularly in circumstances where the person in peril of prosecution is afforded no opportunity to be heard, infringes those rights and is an obvious example of an unfair procedure. At the very least the Director should have given notice to the applicant that he was considering reversing the earlier decision and should also have given the applicant an opportunity to make representations in relation to any such proposed reversal. Further, he would in such circumstances be bound to give reasons for the proposed reversal of the earlier and communicated decision not to prosecute.

30. The Prosecution of Offences Act, 1974, did not provide any machinery whereby the respondent could construct an appeal system to himself. There is no contemplation in the Act that the Director would make a decision and then reverse it.

31. That said it was conceded that there could be circumstances in which the respondent might reverse a decision, but there would have to be a reasonable basis for any such reversal, such as the emergence of new evidence or the discovery of a witness previously unknown or unavailable.

32. A decision to simply reverse a previous decision, made without any reasonable cause, could not be justified and was either perverse, irrational or based on mistaken or erroneous policy.

33. Further, section 6 of the said Act, upon which the respondent relies, does not authorise the respondent to consider representations from persons “having a personal or functional interest” , other than in the limited circumstances envisaged by the section, which effectively confines such right to representations made for the purpose of influencing a decision to withdraw or not to initiate a prosecution. The section in no way addresses the present situation whereby representations were made soliciting a prosecution.

34. Mr. McGuinness, on behalf of the respondent, argued that the applicant had failed to adduce evidence either that the respondent acted mala fides or was influenced by an improper motive or improper policy. The facts of this case did not exclude the reasonable possibility of a proper and valid decision of the respondent and thus the respondent could not be called upon to give reasons for his decision, nor the sources or information upon which it was based.

35. He further argued that as the respondent is not determining legal rights, no considerations of natural justice or fair procedures arise.

36. The respondent, it is submitted, is not precluded by law from reviewing a decision he may have made not to initiate a prosecution. A decision reversal can obviously occur where new facts are brought to his attention and, indeed, also in cases where no new facts are brought to his attention. His discretion whether or not to prosecute is not related exclusively to the probative value of the evidence before him. It was not being contended that in the instant case the respondent felt unable or precluded from disclosing any new consideration or reason, he was simply exercising a right to form a different decision in the context of a review.

37. Counsel for the respondent stated that the applicant may not have been aware of the review procedure in the respondents office which is detailed in the respondents Annual Report at chapter 10. Where such a review is granted, it is conducted thoroughly and by way of complete re-examination. And there was no need to involve the Applicant in this process as representations had already been received on her behalf.

38. He submitted that the fact that a decision not to initiate a prosecution was communicated to the applicant made no difference and no estoppel can arise. The decision whether to initiate a prosecution is one of limited intervention and does not settle any rights or liabilities. Accordingly, to accompany such a decision with a warning that the respondent reserves the power to reverse his decision would serve no purpose in law.

39. The Director of Public Prosecutions performs quasi - judicial functions. His independence is underwritten in the Prosecution of Offences Act, 1974, which provides at S.2 (5):-

40. By way of further protection for the Director, S.6 of the 1974 Act contains provisions designed to screen the Director from unwanted representations designed to influence the making of a decision either to withdraw or not to initiate a prosecution.

41. The absence of a public statement of general policy considerations affecting prosecutorial discretion was remedied in the respondents first Annual Report for the year 1998. Mr. Murray relied upon it in his Affidavit to set out the review procedures which the respondent operated in this case. The Report, though not exhibited, was by agreement made available to the Court. It is clear from the manner in which the case was been met that the respondent saw himself in December, 1998, as operating on foot of the regime described in the Report, although the Report was not placed in the public domain until March, 1999.

42. 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 lightly 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 applicant for her part accepts that, where good and sufficient reason may be shown to exist, she can have no complaint if the Director reverses his original decision not to prosecute.

43. The applicant in the instant case believed that she was free from all jeopardy when advised that the respondent had decided not to prosecute.

44. The respondent, for his part, upon receipt of Mr. Moynihan’s letter decided to implement the ‘review procedures’ which are detailed in his Annual Report, 1998..

45. It is worth quoting in full S.10 of the Annual Report, 1998 for an understanding of how the respondent understood and operated this process:-

46. As counsel for the applicant has pointed out to the Court, the Prosecution of Offences Act, 1974 contains no provision for internal appeals or reviews. A decision of any professional officer within the respondent’s Office is that of the respondent himself.

47. 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 Moynihan’s. It does not point towards any new element in the case or to the existence of any material of probative value whatsoever.

48. As for the decision to reverse, there is no suggestion that any new fact 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 chose not to disclose 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.

49. For the respondent to unmake his original decision and to reinstate a prosecution in such circumstances seems to me to be arbitrary and perverse.

50. The facts of the instant case are quite different from those which the Supreme Court had to consider in the two cases already mentioned. This case is not about a decision to prosecute or not to prosecute. It is about the reversal or unmaking of such a decision in particular circumstances. In this instance the respondent has chosen on the one hand to give reasons for the review and not to assert the existence of any new considerations or reason for the reversal of the decision not to prosecute. The Court cannot refrain from an assessment of those reasons and the circumstances in which the decision to reverse was made, always bearing in mind that it should only intervene on rare occasions and allow to the respondent the widest possible margin of appreciation.

51. Even adopting such a deferential approach, the Court is driven to conclude that no sensible person who applied his mind to the matters to be decided by the respondent could have arrived at the decision which he did.

52. As was stated by Henchy J in State (Keegan) -v- Stardust Victims Compensation Tribunal [1986] IR 642 at p.658:-

53. In reaching this conclusion, I am specifically not holding that the respondent acted mala fide or from an improper motive. However, the fact that the Courts have held the respondent is not obliged to give reasons for prosecuting or not prosecuting does not mean that a decision to reverse is similarly immune from scrutiny or that he is exonerated from the responsibility to act reasonably in reaching a decision and to have good and sufficient reason before reversing any decision. Because the respondent has not asserted that there was any good and sufficient reason I do not have to decide whether or not, if the respondent had such reason but felt unable or precluded from disclosing it, the Court could or should intervene.

54. I would also determine this matter against the respondent on a second ground, namely, the failure of the respondent to comply with his own review guidelines. This effectively is the same ground upon which the Court intervened in R -v- DPP ex. Parte C. [1995] 1 Cr. App. Rep. 136.

55. 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 as 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.

56. Turning to the general policy principles to which the respondent has regard when considering whether or not to bring a prosecution, these are also described in the respondent’s Annual Report. These are the requirements to have regard in any case to ‘the evidential test’ (i.e., is there enough prima facie evidence and is it credible and reliable) and ‘the public interest test’ (which is that if the first test is satisfied, a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour).

57. If the case failed ‘the evidential test’ nothing thereafter arose to alter that situation. If the case failed some ‘public interest test’, the public interest test on a review surely demands that the respondent also take into account the new or further consideration that citizens who have been told in unqualified terms that no prosecution will be brought should not thereafter be exposed to prosecution without good and sufficient cause. There is no indication in this case that any such consideration was taken into account. Had it been, it could only have reinforced the original decision not to prosecute, because the existence of any new consideration to place in the balance to the opposite effect is not asserted. I would grant relief to the applicant on this ground also, namely, non-compliance with policy principles the respondent himself has espoused.

58. A further argument has been advanced by counsel for the applicant. It is to the effect that Section 6 of the Prosecution of Offences Act, 1974 did not permit the respondent to consider the representation made by Mr. Moynihan, consisting as it did of an attempt to persuade the respondent to bring a prosecution, rather than withdraw or not initiate a prosecution as contemplated by the section.

59. The relevant portions of S.6 are as follows:-

60. Counsel for the applicant submits, and I agree, that a statutory provision which makes it “unlawful” to do something, must be interpreted strictly. This can only mean that this section has application only as regards representations made for the purpose “of influencing the making of a decision to withdraw or not to initiate criminal proceedings or any particular charge in criminal proceedings”.

61. The section says nothing to the person who makes representations designed to persuade the Director to bring a prosecution or charge, although it is plain from the respondent’s Annual Report that, with the exception of those persons mentioned in Section 6, he regards such communications as “improper”. Nonetheless, such approaches are not at present the subject matter of statutory interdiction, however injudicious and improper such approaches might be if made by persons other than those identified at S.6 having regard to the requirement for absolute impartiality and independence on the part of the respondent in the discharge of his functions.

62. Given the conclusion I have reached as to the proper interpretation of Section 6, I do not think it can be said that the respondent is precluded from considering a representation made by a person involved or a member of his family designed to influence a decision to being a prosecution. I would refuse relief on this ground, simply noting that the section contains an anomaly which the respondent may well feel requires re-visitation in another arena.

63. In all the circumstances, and because I believe it would be oppressive and unfair to the applicant to allow this prosecution to continue, I will grant the relief sought.